Bhuwneshwar Sahu vs State of M.P.

Hon''ble Shri Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 7.11.1997 passed by Additional Sessions Judge, Bemetara, District Durg in Sessions Trial No. 76/1989 convicting the accused/appellant u/s 376(1) IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for six months. Facts of the case in brief are that on 13.9.1988 at about 2.15 p.m., FIR (Ex. P-6) was lodged by prosecutrix (PW-4) - a married lady aged about 30 years alleging that on 12.9.1988 at about 11 a.m. when she had gone to collect firewood and dung cake in the courtyard of her house, the accused/appellant came from behind, pressed her mouth, made her lie down on the ground and after upturning her sari committed forcible sexual intercourse with her. It is alleged that after hearing her cries when her aunt Khetharin Bai (PW-7) came there, accused/appellant started running away from the spot and while doing so, he was seen by Khetharin Bai (PW-7), Lalit (PW-8) and one Vishnu. Thereafter, she narrated the incident to Khetharin Bai (PW-7). She also disclosed the incident to her parents and sister after they came back from the filed. It is further alleged that on being called by her father, her husband who at that time was living in some other village also came there and then the report was lodged. Prosecutrix was medically examined on 15.9.1988 vide Ex. P-6-A and after completion of investigation, challan was filed by the police on 17.10.1988 for the offence u/s 376 IPC and thereafter the Court below also framed the charge under the same section.

In support of its case, prosecution has examined 11 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely Kushal Manji Chouhan (DW-1) and Nofil (DW-2) have also been examined by the defence in support of its case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that there is inordinate delay of more than 24 hours in lodging the FIR which has not been satisfactorily explained by the prosecution. She submits that the accused/appellant has been falsely implicated in the case and that the medical repot also does not support the case of the prosecution.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that 24 hours delay in lodging the report cannot be termed as inordinate because it has come in the evidence that after calling her husband who was living in some other village the prosecutrix went to the police station with him and then the report was lodged. He further submits that in the FSL report Ex. P-12 spermatozoa was found on sari, petticoat and vaginal slides of the prosecutrix and this being the situation the conviction of the accused/appellant u/s 376 IPC is fully justified. State counsel further submits that even otherwise nothing has been brought on record by the defence to show as to why the prosecutrix would implicate the accused/appellant in a false case.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-4) has stated in her evidence that on the date of incident when she had gone to the courtyard of her house to collect firewood and dung cake, accused/appellant came there, tied her hands with sari and started teasing her. She has further stated that when she tried to raise cry, accused/appellant inserted a piece of cloth in her mouth and then after upturning her clothes committed forcible sexual intercourse with her and as a result of ejaculation, her petticoat got stained with semen. According to this witness, after accused/appellant left the spot, on hearing her cries, her aunt Khetharin Bai (PW-7) came there. Lalit (PW-8) and one Vishnu are also stated to have reached there at the relevant time and then she disclosed the incident to her aunt. Her husband reached home two days thereafter and that the incident was informed by her to her father also and on the second day report Ex. P-6 was lodged. In cross-examination, this witness has stated that Lalit (PW-8) was residing somewhere else and at the time of incident the children namely Gomti, Pushpa and Rekha were present in the house. According to this witness, at the relevant time one of her brothers had gone to school and another to the ration shop whereas her parents had been to the filed. This witness has stated that after being fallen on the ground the accused/appellant thrusted the sari in her mouth on account of which she could not raise her voice. According to this witness, accused/appellant first indulged in discussion asking for sexual favour from her which went on for 5-6 minutes, then kissed her and then after upturning her sari and petticoat committed forcible sexual intercourse which lasted for about 10 minutes and that on account of being threatened of life, she did not offer any resistance to his act. While committing rape on her, accused/appellant had held her shoulder and set her legs apart and during this period she did not scratch, bite or kick him. This witness has further stated that at the relevant time she was wearing bangles made of glass but they remained unbroken and she did not receive any injury. According to her, she was not aware that Khetharin Bai had seen the accused/appellant coming out of her house. This witness is stated to have disclosed to the police about her hand being tied and mouth gagged by the accused/appellant but if the same is not mentioned in the FIR, she could not tell the reason for that. According to her, the petticoat worn by her got stained. In paragraph 12 of her evidence she has stated that after the incident she had washed her petticoat twice. This witness has further stated that as the place of incident was visible from out-side; accused/appellant had taken her in the corner and committed forcible sexual intercourse with her. In paragraph No. 18 this witness has stated that the surface where the incident had taken place was rough but in paragraph No. 8 she has stated that she did not suffer any injury. Hirdayram (PW-1) - the witness to seizure made under Ex. P-1 and P-2 has supported the case of the prosecution. Punaram (PW-2) and Chandrika Prasad Shivhare (PW-3) -the witnesses to seizure made under Ex. P-3 and P-4 respectively have not stated anything specific. Dawaram (PW-5) - the father of the prosecutrix has stated that on the date of incident when he reached his house in the evening, he was informed by his wife Bhulinbai (PW-6) that his daughter (prosecutrix) was subjected to rape by the accused/appellant and then the report was lodged. Bhulinbai (PW-6) -mother of the prosecutrix has stated that on the date of incident when she returned home in the evening, she was informed by her daughter (prosecutrix) that accused/appellant had committed theft in her house. This witness later on was declared hostile. However, in cross examination she has stated that prosecutrix was weeping and then informed her that she was subjected to forcible sexual intercourse by the accused/appellant who on seeing khetharin Bai (PW-7) left the spot. Khetharin Bai (PW-7) has stated that she had not heard the cries of the prosecutrix and when on the date of incident she returned home children were shouting "chor chor". At this stage, she has been declared hostile. In cross examination, this witness has stated that the prosecutrix did not inform her about being subjected to rape by the accused/appellant. Lalit Kumar (PW-8) has not supported the case of the prosecution and has been declared hostile. S.K.A. Naqvi (PW-9) is the investigating officer who has duly supported the case of the prosecution. Dr. (Smt.) N. Khan (PW-10) is the witness who medically examined the prosecutrix and gave her report Ex. P-6A stating that she did not find any injury on her person and she was habitual to sexual intercourse. Dr. (Smt.) K.P. Christian (PW-11) is the lady doctor from whom certain opinion was sought by Dr. (Smt.) N. Khan (PW-10) but she did not give the same as she received the information late. Komlal (DW-1) has not stated anything specific.

Having thus seen the entire testimony of the witnesses particularly that of the prosecutrix the irresistible conclusion that can be drawn is that she was a consenting party to the act of the accused/appellant. Prosecutrix herself has stated that accused/appellant first indulged in discussion asking sexual favour from her which went on for 5-6 minutes, then kissed her and then after upturning her sari and petticoat committed forcible sexual intercourse which lasted for about 10 minutes. Her statement also makes it clear that as the place where they both were chatting was visible from outside, accused/appellant took her in the corner and then committed sexual intercourse with her. It is also apparent from the evidence of the prosecutrix that while the accused/appellant was committing rape on her, she did not scratch, bite or kick him as a mark of resistance. Even the bangles made of glass worn by her at the relevant time remained unbroken and she did not receive any injury which also goes to show that she did not make any protest to the act of the accused/appellant. Prosecutrix herself has stated that the place where she was raped by the accused/appellant was rough but the fact that she did not receive any injury on her body further fortifies her being a consenting party. Moreover, even the mother of prosecutrix (PW-6) has not supported the case of the prosecution and has been declared hostile. Khetharin Bai (PW-7) and Lalit Kumar (PW-8) on seeing whom the accused/appellant is stated to have left the spot have also not supported the case of the prosecution and have been declared hostile whereas one Vishnu who too reached the spot and on seeing him also the accused/appellant had run away, has not been examined by the prosecution. According to mother of the prosecutrix (PW-6) first the prosecutrix told her that some thief had entered her house and then she has stated that prosecutrix had told her of being raped also by the accused/appellant. In the Court statement, the prosecutrix has stated that both her hands were tied by the accused/appellant but nothing like this is stated in the FIR. Though prosecutrix has stated that she had disclosed the incident of rape to her aunt Khetharin Bai (PW-7) but she (aunt of the prosecutrix) has categorically stated that no such thing was disclosed to her by the prosecutrix. Further, according to the prosecutrix, her aunt (PW-7) had come to the place of incident after hearing her cries where her aunt has clearly stated that she had not heard any such cry. Thus, in sum and substance, the prosecutrix has not been consistent in stating the things in FIR, case diary statement or in the Court statement and her entire conduct goes to show that she was a consenting party to the act of the accused/appellant. In view of above, this Court is of the considered opinion that the findings of the Court below are not in conformity with the evidence of the witnesses and therefore the judgment impugned is liable to be set aside. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. He is reported to be on bail and therefore his bail bonds stand discharged.