Dilbag Singh vs State of Chhattisgarh

Pritinker Diwaker, J.—The present appeal arises out of the judgment and order dated 28.08.2008 passed by the Sessions Judge, Raigarh in Sessions Trial No. 21 of 2008 convicting the accused/appellant for the offence under Sections 376 and 342 of 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 three months u/s. 376 of IPC and rigorous imprisonment for one year u/s 342 of IPC. Both the sentences were directed to run concurrently. Brief facts of the case are that on 01.01.2008 FIR Ex. P-2 was lodged by the prosecutrix (PW-2), a married lady aged about 26 years alleging in it that on 31.12.2007 at about 5.30 p.m. when she was returning from her work place, on the way the accused/appellant met with her and forcibly took her to his house. Thereafter the appellant bolted the door from inside, switched on the musical instrument, threw her on the cot and after removing her and his clothes committed forcible sexual intercourse with her against her wishes. Based on this FIR, offence u/s 376 and 342 of IPC was registered against the appellant and after completion of investigation Challan was filed against him on 13.01.2008 for the said offence.

So as to hold the accused/appellant guilty, prosecution has examined as many as 09 witnesses in support of its case. Statement of the accused/ appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence under sections 376 and 342 of IPC. Hence, the present appeal.

Contention of Shri Sharma, learned counsel appearing for the appellant is that present appears to be a case of consent otherwise commission of forcible sexual intercourse with a fully developed prosecutrix is literally impossible. He submits that as the appellant was seen by one Manish immediately after commission of the offence, the report was lodged against him. He further submits that the report was lodged on the next day and this inordinate delay in lodging the FIR has not been explained by the prosecution as required under the law. It has been argued that* at the time of commission of offence the appellant is alleged to have used condom which shows that a due precaution was taken by appellant and prosecutrix and therefore it was nothing but sexual intercourse with the consent of prosecutrix. He further submits that no resistance whatsoever was offered by the prosecutrix when she was being subjected to sexual intercourse by the appellant.

On the other hand opposing the arguments of the counsel for the appellant it has been argued by Shri Pyasi, learned counsel for the State that the statement of the prosecutrix has been duly supported by her medical report Ex. P-8 and injuries were found on her private part. He submits that the doctor Smt. Lalita Rathia (PW-8) who medically examined the prosecutrix has categorically supported the prosecution case. He further submits that immediately after commission of offence the incident was narrated by the prosecutrix to her relatives and then the report was lodged.

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

Prosecutrix (PW-2) in her court statement has stated that she is living with her husband at Madanpur Kharsia and the accused/appellant also resides near her house. She has stated that on the date of incident at about 5 p.m. when she was returning to her house, the appellant was standing outside his house and asked her to iron his clothes to which she replied that after coming back, her husband would iron the clothes. The appellant further asked her why she did not talk to him to which she replied that as he did not talk to her, why she would talk to him. Thereafter the appellant pushed her, took her inside his house holding of her hands, bolted the door from inside, threw her on the bed, switched on the musical instrument and after removing her clothes committed sexual intercourse with her. After commission of offence the appellant went out from his room and having seen one Manish standing outside he got back and asked her to wear clothes. When she wore her clothes, the appellant'' pushed her out from his house. She came to her house weeping and as there was no one in the house, she went to the shop of her husband which is one kilometer away from her house and asked him to come to the house immediately. She has further stated that within 10 minutes her husband came to her house and then she narrated the entire incident to him. Her husband called the landlord and informed him about the incident. On the next date of incident the report was lodged at Kharsla Police Station but as she was not educated, she put her thumb impression on the said report Ex. P-2 and thereafter she was sent for medical examination, her undergarment was seized and spot map was prepared by the Patwari. In cross-examination the prosecutrix has stated that she knew Manish also who was residing with the appellant. According to her, the colony where she was residing was consisting of 16 houses and there is only one way to approach them and the other side of the entire locality is closed. In all the houses, tenants were residing and the first house belonged to the landlord whose shop normally remained open till 10 p.m. She has further stated that just opposite the house of the landlord, her daughter and son-in-law were residing and adjacent to the shop of the landlord one school was also there. There are five houses before the house of appellant whereas she was residing in 9th number house. According to the prosecutrix when she was returning from her work, she met with appellant and Manish and while she was being dragged by the appellant she did not raise her cries as she was under the impression that she would get herself free from the clutches of the appellant. She has stated that while she was being dragged by the appellant she had not seen Manish but when she was in naked condition, she had seen Manish from the door. Even after seeing Manish she did not raise her cries and she was weeping. According to her, she knew the-persons who were residing in the said locality but she did not raise any alarm as there was no one at that time. Even after coming out of the house of appellant she did not raise her cries nor did she inform the daughter and son-in-law of the landlord. She has stated that she did not make any attempt to bite or scratch the appellant. In the incident her blouse had got torn but she had not handed over the same to the police. She has stated that she had not lodged any report against Manish but in the FIR it was mentioned by her that Manish had seen her. She has denied the fact that as Manish had seen the incident, his name was also mentioned in the FIR. She has further reiterated that while coming out of the * house of appellant she did not raise her cries. She has stated that in the night of incident she slept with her husband but did not have any physical relation with him. In paragraph-12, there appears to be material omissions in her Court statement from that of FIR. In paragraph-14 of her cross examination, she has stated that when she was being subjected to sexual intercourse by the appellant, the appellant had used condom but she has denied the fact that she falsely implicated the appellant.

Dr. S.K. Agrawal (PW-1) who had medically examined the accused/ appellant vide Ex. P-1 has stated that the appellant was capable of performing sexual intercourse. Sanjay Rajak (PW-3), husband of the prosecutrix has stated that on the date of incident in between 5-6 p.m. the prosecutrix came to his shop and asked him to come to the house. After closing his shop when he reached the house, her wife started weeping and informed that she was subjected to rape by the appellant. Thereafter he searched the appellant but could not find him and then he narrated the incident to some local persons. According to him, it was told by him that if the appellant came to him and begged pardon, he would have left him but the appellant did not come to him and on the second day the report was lodged. In cross-examination he has stated that one Manish was also residing in the said locality and against him also a report was lodged by him and his wife. He has further stated that his wife had informed him that Manish was also present on the spot and it is he who had closed the door. The prosecutrix had further informed him that she was subjected to rape by Manish also. He has stated that he was under the impression that Manish was in jail in the said case as the report was also lodged against him. Suresh Kumar Sharma (PW-4) has stated that on the date of Incident he saw crowd in front of Mohan''s (the landlord) house where the landlord, the prosecutrix and her husband were also present and prosecutrix had informed that she was subjected to rape. He has stated that though his signature is there in the spot map Ex. P-4 and Ex. P-5 but nothing was seized in his presence. Anil Bhat (PW-5) has not supported the prosecution case and has been declared hostile. Yadram Baghel (PW-6) is the Patwari who had prepared the spot map Ex. P-6. Mohanlal Patel (PW-7), the landlord has stated that the appellant was residing as tenant along with Manish and likewise the prosecutrix and her husband were also residing as his tenant. Thereafter this witness has been declared hostile. Dr. Smt. Lalita Rathia, (PW-8) who had medically examined the prosecutrix vide Ex. P-8 has found following injuries on her person:

i) One abrasion 1 cm X 1 cm on Rt. Lat. Wall of vaginal wall.

ii) One abrasion 2 cm X 1 cm on Rt. Lat. Wall of vaginal wall just below injury No. 1.

iii) One abrasion 2 cm X 2 cm on Lt. Lat. Wall of vaginal wall.

This witness has stated that she was informed by the prosecutrix that someone had subjected her to physical relation by using condom. According to her duration of injury was within 24 hours. M.R. Kashyap (PW-9) the Investigating Officer has supported the prosecution case.

Though as per the medical report three injuries have been found on the private part of the prosecutrix but the prosecutrix has not stated anything about any such injury suffered by her while she was being subjected to rape by the appellant. The prosecutrix has categorically denied the fact that when she was being subjected to rape by the appellant she never offered any protest or raised her cries. Even after commission of offence the prosecutrix did not raise any alarm and went back to her house. According to her, she did not make any attempt to bite or scratch the appellant. When the prosecutrix was in naked condition, she saw Manish and even after seeing him she did not raise her voice. Further, the spot map shows that the house of the appellant and the-prosecutrix were surrounded by several houses including that of the landlord, his daughter and son-in-law but the prosecutrix did not raise any alarm to the people of the vicinity. According to the prosecutrix when she was being subjected to rape by the appellant he was holding her both hands whereas she herself has stated that while she was being subjected to sexual intercourse the appellant had used condom. In paragraph-12 of her cross-examination there appears to be material omissions if compared to FIR and her case diary statement. The statement of Sanjay Rajak (PW-3), husband of the prosecutrix also does not support the prosecution case in its entirety as according to him the report was lodged against Manish also and he was informed by the prosecutrix that it is the Manish who bolted the door and she was also subjected to sexual intercourse by him. Further he-was under the impression that Manish was in jail as the report was also lodged against him whereas the prosecutrix has given entirely different story saying that she was not subjected to rape by the said Manish. That apart, from the FIR it appears that initially the offence was registered under sections 376, 342 and 34 of IPC but on some stage, section 34 was struck off from the FIR for the best reason known to the prosecution. The scoring of section 34 from the FIR if taken from the statement of the husband of the prosecutrix (PW-3), the same creates doubt In the mind of this Court-about the entire prosecution case. Thus, the statement of the prosecutrix appears to be untrustworthy and does not inspire the confidence of this Court and therefore possibility of false implication or consent cannot be ruled out. Though the medical report is positive up to some extent but merely on the basis of the said report it will not be safe to this Court to uphold the conviction of the appellant especially when in her statement the prosecutrix has not stated anything about the injuries sustained by her while she was being subjected to sexual intercourse by the appellant. In these circumstances when the evidence of the prosecutrix herself is replete of omissions if compare to the FIR and her case diary statement, the appellant is entitled to get the benefit of doubt. In view of above, the appeal is allowed. Impugned judgment is set aside. Appellant is acquitted of all the charges levelled against him. The appellant is reported to be in jail. He is directed to be set free forthwith if not required in any other case.