Firoz Khan vs State of C.G.

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 27.3.2010 passed by Additional Sessions Judge Baloda Bazar, District Raipur in Sessions Trial No. 11/2009 convicting the accused/appellant for the offences punishable under Sections 363, 366 and 376(1) IPC and sentencing him to undergo RI for seven years with fine of Rs. 100/- on each count, plus default stipulations. Facts of the case in brief are that on 15.2.2009 at 11.35 p.m. FIR Ex. P-3 was lodged by the prosecutrix (PW-3) aged about 16 years to the effect that on that day at about 6.30 p.m. she had gone to bus stand to purchase some book and when she did not get the same, she proceeded to participate in a Satsang on her bicycle. At that time, accused/appellant who happened to be her neighbour, met her on the way and asked as to where she was going on which she informed him that she was going to her mother in Sasti temple. Thereupon, accused/appellant told her that he had seen her mother going towards her house and as he was also going to his house, he offered her to drop her too at home. Thereafter, by making her sit on the bicycle he took her towards canal and during this period she jumped off the bicycle twice but he did not let her escape by catching hold of her hand. He then took her to Kokri road - an isolated place and as it was complete dark and nobody was there she did not raise any hue and cry. After taking her to the house of one Khemu, he bolted the door from inside, forcible removed her salwar and underwear, threw her on the bed and committed forcible sexual intercourse with her. It is alleged that the prosecutrix was subjected to rape by the accused/appellant twice. Thereafter, leaving her bicycle there itself, she managed to escape and after reaching home narrated the entire incident to her parents and then matter was reported to police. Based on this report, offence under Sections 363, 366 and 376(1) IPC was registered against the accused/appellant, prosecutrix was medically examined on 16.2.2009 vide Ex. P-13 and after completion of investigation charge sheet was filed by the police on 25.3.2009 under the same sections and charge framed by the Court below accordingly.

In support of its case the prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he pleaded his innocence and false implication in the case.

After hearing the parties, the Court below convicted and sentenced the accused/appellant as mentioned above.

Counsel for the accused/appellant submits that present appears to be a case of consent because the prosecutrix accompanied the accused/appellant without offering any protest and allowed him to have physical relations with her. She submits that conduct of the prosecutrix is as such that the only inference of consent on her part to the act of accused/appellant can be drawn. She further submits that a very improbable story has been put forth by the prosecution which cannot be believed by any stretch of imagination. Counsel for the accused/appellant further submits that according to the prosecutrix she was dragged by the accused/appellant and suffered injuries also but medical report does not at all support the same. She submits that admittedly the prosecutrix was above 16 years of age at the relevant time and the prosecution has not adduced any evidence that she was below 18 years of age on the date of incident and that being so conviction of the accused/appellant under Sections 363 and 366 IPC is also bad in the eye of law. Counsel for the accused/appellant submits that according to the prosecutrix while her salwar was being removed by the accused/appellant it was torn but as per the seizure memo the same was intact and not torn. She further submits that according to the prosecutrix when she was subjected to rape by the accused/appellant, entire house was in disarray but Nazri Naksa does not say so. Counsel for the accused/appellant submits that the prosecutrix has exaggerated her version and her statement has not been supported even by her parents. According to the counsel for the accused/appellant, Patwari (PW-2) who prepared site plan has stated that if someone comes from new bus stand to Sasti temple, Kamal colony does not fall on the way but as per the prosecutrix she met the accused/appellant in Kamal colony and thus it is apparent that she has falsely implicated the accused/appellant. Counsel for the accused/appellant further submits that as per the statement of Khaman Prasad Mishra (PW-8) it is he who gave key of his house to the accused/appellant which shows that accused/appellant and the prosecutrix had preplanned to meet at a particular place and thus consent of the prosecutrix is fully established. She submits that as per the medical report prosecutrix did not suffer any external injury and even the salwar of the prosecutrix was not torn. She submits that there is no FSL report on record.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that there is no reason for this Court to disbelieve the statement of the prosecutrix and the same is nothing else but true account of the traumatic experience she underwent. According to him, prompt report was lodged by the prosecutrix just within five hours of the incident. He submits that the prosecutrix has categorically stated the manner in which she was first taken to a secluded place and subjected to rape by the accused/appellant. Medical report, according to the State counsel, also fully supports the case of the prosecution where it is opined by the doctor (PW-9) that there was a lacerated wound on the hymen of the prosecutrix. State counsel further submits that the statement of the prosecutrix is fully trustworthy and that defence has not assigned any reason as to why the prosecutrix would implicate the accused/appellant in a false case.

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

Prosecutrix (PW-3) has stated that she knew the accused/appellant who used to reside in her locality. On the date of incident she had gone to new bus stand to purchase some book but as she did not get the same she proceeded to attend the Satsang which was going on in Sasti temple. On the way accused/appellant met her and asked as to where she was going on which she told him that she was going to her mother. When accused/appellant told her that he saw her mother going towards her house, she also started leaving for home. Accused/appellant then told her that he was also going to his house and as he was acquainted to her, she gave her bicycle to him and sat on its carrier. According to her, as the accused/appellant was taking her somewhere else, she jumped off the bicycle but leaving the bicycle there itself he chased and ultimately caught hold of her and dragged her away towards the canal in spite of her protest. She went on to state that due to fear she could not raise any hue and cry and that at the relevant time it was completely dark and nobody was there. Accused/appellant is then stated to have taken her to the house of Khemin Prasad Mishra (PW-8), thrown her on the bed and after removing her salwar committed forcible sexual intercourse with her. According to this witness, she made an attempt to get rid of the accused/appellant but he did not let her do so. She then somehow managed to escape from his clutches and wore her salwar on the way. This witness has stated that accused/appellant committed rape on her twice which she narrated to her parents after reaching home followed by lodgment of FIR Ex. P-3. In cross examination also, barring certain contradictions and omissions minor in nature, this witness remained firm to what she has stated in the examination-in-chief. Kanahiya Manikpuri (PW-4) - father of the prosecutrix has stated that at the relevant time his daughter (prosecutrix) was aged about 16 years and that on the date of incident at about 10.30 p.m. she returned home and informed that while returning from the temple accused/appellant had met her in Kamal colony area, taken her to the house of Khemin Prasad Mishra (PW-8) and subjected her to rape. He has further described the manner informed to him by the prosecutrix in which she was picked up on the way, taken to an isolated place and then to the house of Khemin Prasad Mishra and made a victim of rape by him. If minor discrepancies are ignored, cross-examination of this witness is also almost the same and he has not deviated from the things stated in examination-in-chief. Madhu Manikpuri (PW-5) - mother of the prosecutrix has stated that on the date of incident when she had gone to Sasti temple, her daughter (prosecutrix) had left the house saying that she was to purchase some book and after doing that she would also come to that temple. However, according to this witness, when the prosecutrix did not reach the temple, in the evening she returned to her house. In the night, according to this witness, prosecutrix returned home, started weeping and told that she was ravished by the accused/appellant. This witness then has elaborated the agony as was informed to her by the prosecutrix as to how she was taken away by the accused/appellant to a secluded place and then to the house of Khemin Prasad Mishra (PW-8) and subjected to rape by him. Leaving apart certain minor inconsistencies, in cross examination too this witness remained firm to the things stated by her in the examination-in-chief. Manik Das (PW-6) is the witness who has proved entry made in the Kotwari register including date of birth of the prosecutrix which is recorded as 3.2.1993. According to this witness, Kotwari register is Ex. P-6 and its photocopy Ex. P-6-C. S.R. Nayak (PW-7) is the Assistant Sub Inspector who assisted in the investigation. Khemin Prasad Mishra (PW-8) has stated that he knew the accused/appellant whose elder brother was his friend. He is also stated to know the prosecutrix who was residing near his house. Accused/appellant, according to this witness, was working near his hotel and he had given the key of his house to him, which he returned to him in the evening. At this stage, this witness however has been declared hostile. Dr. Neeta Bhatnagar (PW-9) is the witness who medically examined the prosecutrix and gave her report Ex. P-12 stating that her hymen was torn, lacerated injury was there on her hymen and on touch it was bleeding. She has further stated that vagina of the prosecutrix admitted one finger and during examination she was complaining pain.

From the evidence of the witnesses examined by the prosecution particularly that of the prosecutrix, it is apparent that on the date of incident when the prosecutrix had gone to the bus stand for buying some book and while she was proceeding to Sasti temple where her mother was already present, accused/appellant misguided her saying that he had seen her mother going to her house and on the pretext of dropping her at home, he took her to the house of one Khemu, bolted the door from inside, forcible removed her salwar and underwear, threw her on the bed and committed forcible sexual intercourse with her twice. The clear narration of the incident made by the prosecutrix appears to be quite convincing and trustworthy and inspires full confidence of the Court. Version of the prosecutrix is duly supported by Dr. Neeta Bhatnagar (PW-9) who medically examined the prosecutrix and gave her report Ex. P-12 has stated that her hymen was torn, lacerated injury was there on her hymen and on touch it was bleeding. She has further stated that vagina of the prosecutrix admitted one finger and during examination she was complaining pain. In the light of evidence of the prosecutrix duly supported by the medical evidence, minor discrepancies in her statement would not have any adverse impact on the case of the prosecution and that being so they have to be overlooked. Submission of the counsel for the accused/appellant that when the prosecutrix was subjected to rape by the accused/appellant, entire house was in disarray but Nazri Naksa does not say so, does not appeal to the conscience of this Court and the same is turned down. In view of the aforesaid discussion, this Court does not find any illegality or irregularity in the judgment impugned and therefore the same is maintained. Appeal being without substance is liable to be dismissed and it is dismissed as such. As the accused/appellant is already in jail, no order regarding his surrender etc. is necessary.