Bindhachala Gond Kashiram vs State of Chhattisgarh

Pritinker Diwaker

As these two appeals arise out of the same judgment dated 28.10.2004 passed by Additional Sessions Judge (FTC) Ramanujganj District Sarguja in Sessions Trial No. 266/2003 convicting the accused/appellants u/s 376(2)(g) IPC and sentencing each of them to undergo RI for ten years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for six months, they are disposed of by this common judgment: Facts of the case in brief are that on 7.1.2003 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) alleging that on 3.1.2003 at about 12 noon she had gone to the field of her father and at about 4 p.m. her husband Bidhachal (appellant in Criminal Appeal No. 973/2004) along with accused Kasiram (Appellant in Criminal Appeal No. 455/2005) came to the field and accused Bidhachal shouted saying that they will not be spared. It is alleged that she and her sister-in-law started running but she was caught hold of by the accused/appellants. They took her in the field and when she tried to raise voice, accused Bindhachal threatened her and inserted piece of cloth in her mouth, both of them threw her on the ground and she was raped by accused Kashiram and at that time the other accused Bidhachal had caught hold of her. Thereafter, accused Kashiram caught hold of her and accused Bidhachal committed rape on her. After commission of rape, she was threatened by them that if she reported the matter to the police, she would be killed. After returning home she narrated the incident to her mother, father and sister-in-law and as she was threatened of life, she did not lodge the report promptly. Based on this FIR, offence u/s 376(2)(g) IPC was registered against them and after completion of investigation, challan was filed by the police for the said offence.

So as to hold the accused/appellants guilty, prosecution has examined 14 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

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

Counsel for the appellants submit that present is a case where the accused/appellants have been implicated in a false case on account of old dispute and enmity. They submit that there is inordinate delay of four days in lodging the FIR which has not been satisfactorily explained by the prosecution. They further submit that medical report of the prosecutrix also does not support the case of the prosecution. They submit that accused/appellant Bindhachal is the husband of the prosecutrix and therefore if wife is subjected to physical relations by her husband, offence u/s 376 IPC is not made out against him. They further submit that all the witnesses have stated that there was some dispute between the prosecutrix and the accused/appellants but ignoring the same they have been convicted and sentenced by the Court below as mentioned above. They further submit that FSL report is not on record and therefore benefit of doubt has to go to the accused/appellants.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that there was already a separation between accused Bidhachal and the prosecutrix and therefore he is liable to be convicted u/s 376 IPC. He submits that question of false implication of accused Kashiram by the prosecutrix does not arise because there is absolutely no evidence as to why she would implicate them in a false case. He submits that present is a case where accused Bidhachal - the husband of the prosecutrix allowed co-accused Kashiram to have sexual intercourse with her, this shows his perverted mental state. According to him, delay in lodging the report has been very well explained by the prosecution saying as she was threatened of life by both the accused/appellants, she did not lodge the report promptly. He further submits that medical report Ex. P-17 very much supports the case of the prosecution where the doctor who examined the prosecutrix has stated that sexual intercourse was done with her. He further submits that absence of FSL report is of no help to the prosecution.

Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellants. On the date of incident when she along with one labourer was working in the field, accused/ appellants came running to her and caught hold of her hand. According to her, she was married to accused Bindhachal but he did not keep her as his wife and thus he left her. First she was caught hold of by the accused Binchachal who then called out the other accused. Thereafter, accused Kashiram also came there and caught hold of her. They took her to a nearby tree, accused Bindhachal made her lie on the ground and while he was catching hold of her, accused Kashiram committed forcible sexual intercourse with her and then accused Kashiram caught hold of her and accused Bindhachal committed rape on her. After committing rape on her one after the other, they left her and fled away. According to her, while committing rape on her they were threatening her of life in case she disclosed the incident to anyone. Thereafter, she came to the house of her parents and disclosed the incident to her mother and father and on the next day the matter was orally reported to the police. Thereafter, she has stated that the FIR Ex. P-1 was lodged and she put her thumb impression thereon. Then with her consent she was medically examined, her petticoat was seized by the police in the presence of the witnesses, spot map was prepared in her presence and on all these documents she put her thumb impression. In cross examination she has stated that after marriage, accused/appellant Bindhachal had kept her properly and out of their wedlock one child was also born. She has stated that her matrimonial home and maternal home both are in the same village and whenever she wanted to live in either of these two places she did so according to her sweet-will. According to this witness, at times there used to some dispute over the meals and that her husband, mother-in-law and father-in-law belonged to poor family and were working as labourers. She has however denied that in her matrimonial house she was having any problem for meals and for that she used to go and live in her maternal house. According to her, earlier whenever she visited her maternal home, accused Bindhachal also used to come there to take her back but subsequently he stopped doing so. She has further stated that four months prior to the incident when accused Bindhachal had gone to take her back, her father had refused to send her and drove him away. She has denied that her brother and father had thrown accused Bindhachal into a well. She has however admitted that accused Bindhachal had lodged a report against her brother and father and thereafter some dispute arose between them. She has stated that previously accused Bindhachal loved her a lot but later he started neglecting her. She has denied that accused Bindhachal did not leave her rather she herself left him. She has stated that her marriage with accused Bindhachal took place five years prior thereto. She has further stated that the labourer with whom she was working in the field is not known to her by name. She has further stated that adjacent to her field, fields of other persons including that of her uncle are also there. According to her, it is incorrect to say that she did not raise any alarm but she did do it a little. She has further stated that the labourer who had accompanied her to the field did not raise her voice. Then she stated that when she was being chased by the accused/appellants the said labourer also fled from the scene. She has stated that the report was lodged in the police station by her father and she had merely put her thumb impression on it. According to her, it is true that the report was not read over to her. She has denied that the accused/appellants did not do anything wrong with her. She has denied that the matter was reported to the police 4-5 days after the incident rather she has stated that the report was lodged just one day thereafter. Dayaram (PW-2) - the father of the prosecutrix supporting the case of the prosecution has stated that on the date of incident prosecutrix informed him about the incident. He has stated that one year prior to the date of incident, accused Bindhachal had left the prosecutrix who had instituted a case against him in the Court for maintenance and it is for this he got angry and subjected her to rape with another accused Kashiram. This witness has further stated that after the incident Panchayat meeting was convened by the accused/appellants where they had asked him to keep the prosecutrix with him as they had committed rape on her. They also threatened him not report the matter to the police. However, despite their threat he took the prosecutrix to police station where the report was lodged. He has admitted that previously there was some dispute between him and accused Bindhachal but has denied that accused Bindhachal was thrown by him into a well. This witness has further stated that about four months prior to the date of incident, accused Bindhachal had visited his house to take back his wife but he did not allow her to accompany him. He has admitted the fact that as the report was lodged by accused Bindhachal against him, they were having inimical relations with each other. He has admitted the fact that there was an enmity between him and accused Bindhachal but has denied that out of said enmity he has implicated him in a false case. Jamuna Bai (PW-3) the mother of the prosecutrix has supported the case of the prosecution stating that the incident was disclosed to her by the prosecutrix. This witness has also admitted the enmity between accused Bindhachal and her family members. Phulkunwar Bai (PW-4) has stated that on the date of incident she and the prosecutrix had gone to the field and at about 4 p.m. accused/appellants came there running and caught hold of the prosecutrix. At this stage she has been declared hostile by the prosecution. Ramdeo (PW-5) is the witness to seizure of under garments of the accused/appellants and petticoat of the prosecutrix made under Ex. P-7 and P-8 and P-3. Shivnarayan (PW-6) - another witness to seizure of articles made under Ex. P-7 has not supported the case of the prosecution and has been declared hostile. Head Constable namely Ravi Prasad Kushwaha (PW-7) is the witness who recorded the FIR Ex. P-1. Dania Giddh (PW- 8) is the police constable who assisted the investigating officer during investigation. Mangal Sai (PW-9) is the investigating officer who has supported the case of the prosecution. Dr. H.L. Singh (PW-10) is the witness who medically examined the accused/appellants and gave his report Ex. P-11 and P-12 stating that they were capable of performing sexual intercourse. Constable Babunath Singh (PW- 11) is the witness who assisted the investigating officer during investigation. Ramlochan Gond (PW-12) is the witness to seizure of articles made under Ex. P-7 has not supported the case of prosecution and has been declared hostile. Babulal (PW-13) is the witness to seizure of articles made under Ex. P-3, P-7 and P-8 has supported the case of the prosecution. Dr. Manju Ekka (PW-14) is the witness who medically examined the prosecutrix and gave her report Ex. P- 17 stating that no external or internal injury was noticed on her body and that she was habitual to sexual intercourse. She however has not given any definite opinion of recent sexual intercourse with the prosecutrix. Moti Singh (DW-1) has stated in his evidence that accused Bindhachl is a poor person and that he and his wife were initially living happily but for some dispute between them over food. He has stated that when accused Bindhachal went to the house of father of the prosecutrix, he was beaten by them and that he did not send the prosecutrix with him. He has stated that accused Bindhachal was also thrown into a well by the father of the prosecutrix. According to this witness, the accused/appellants have been implicated in a false case and no incident of rape ever took place.

The prosecutrix (PW-1) has stated in her evidence that on the date of incident she was living with her parents and the accused/appellant Bindhachal who happened to be her husband had left her. At the same time she has also stated that after marriage she was living happily with him and out of their wedlock one child was also born. There is no evidence to the effect that the prosecutrix who happens to be the wife of accused/appellant Bindhachal was living separately from her husband under a decree of separation or under any custom or usage rather evidence of the parents of the prosecutrix (PW-2 and PW-3) reveals that four months prior to the date of incident when the accused/appellant Bindhachal had visited their house to take the prosecutrix back, they did not send the prosecutrix with him but in the same night her father along with three other persons namely Jamuna Prasad, Mata Prasad and Gahbar themselves had gone the house of accused Bindhachal taking the prosecutrix with them and left her there. Evidence further reveals that after lodgment of the report by accused Bindhachal against the parents of the prosecutrix with respect to his being thrown into the well by them, the relations between them became inimical and therefore possibility of his false implication in the case in hand cannot be ruled out. Admittedly, there is four days delay in lodging the FIR as the incident took place on 3.1.2003 whereas FIR Ex. P-1 was lodged on 7.1.2003 and this inordinate delay in doing so has not been properly explained by the prosecution but for assigning the reason that on account of threat given by the accused/appellants it could not be lodged promptly. In the facts and circumstances of the case and taking into consideration the family background of the parents of the prosecutrix and their social status such a reason assigned for delay in lodging the FIR becomes not so appealing that too when the prosecutrix and the appellants were residing in the same village and the police station was also not so far away there-from. Further, as per the statement of the prosecutrix, report was lodged by her father without being read over to her and that she had merely put her thumb impression thereon, it also creates a doubt about truthfulness of the case of the prosecution particularly in view of the inimical relations between father and brother of the prosecutrix with the accused/appellant Bindhachal on account of the fact that he had lodged a report against them with respect to his being thrown into the well by them. This apart, evidence of sole defence witness Moti Singh (DW-1) makes it clear that when father of the prosecutrix had gone to the police station to lodge the report, he was told by the police people that no case against accused Bindhachal is made out and therefore he should lodge the report against some other person and probably for this reason the other accused Kashi Ram has been dragged in this case. The story put forth by the prosecution witnesses appears to be highly improbable and therefore the same cannot believed in the absence of any cogent and clinching evidence supporting the version of these witnesses.

Thus in view of the aforesaid discussion, the trial Court appears to have misdirected itself while appreciating the evidence on record and convicting and sentencing the accused/appellants as mentioned above. That being so the findings recorded by the Court below by the judgment impugned cannot be allowed to stand and they are accordingly set aside. The appeals are thus allowed and judgment impugned is set aside. The accused/appellants are acquitted of the charges levelled against them. The accused/appellants are on bail. Their bail bond stand discharged.