Girdhari Sahu vs State Of Chhattisgarh

The appellant stands convicted under Sections 376, 376 and 506(Part-II) IPC and sentenced to undergo RI for 10 years and fine of Rs.25,000/-, RI for 10 years and fine of Rs.25,000/- and RI for six months respectively with default stipulation, as ordered by the IIIrd Additional Sessions Judge (FTC), Bemetara, District Durg, in Sessions Case No.140/2003.

Facts of the case is that, on 22.05.2003, the prosecutrix, PW-1, lodged a report at Mahila Police Station, Raipur, vide Ex. P/1 alleging that she was residing at Village Lalpur along with her grandparents and uncle aunt. The appellant is also the resident of same village and belongs to same community as she is and therefore he was frequently visiting to her house. On the occasion of Dashehra festival when her family members had gone to the field, at about 2-3 PM the appellant came to her house and committed forceful sexual intercourse with her. When she was raising an alarm, then the appellant gagged her mouth and threatened her with dire consequences. He again made physical relation with her twice whenever the appellant found her alone. She had not disclosed the incident as she was scared. When she conceived pregnancy and asked the appellant to marry with her, the appellant had performed Jaimala marriage with her on 23.01.2003 and continued in making physical relation. In the last month, the appellant performed second marriage and thrown her out from his house. Thus, the appellant has spoiled her life as she is carrying pregnancy of about seven months.

The Mahila Police Station Raipur registered unnumbered FIR on 22.05.2003 and forwarded it to the Police Station Nawagarh, District Durg where numbered FIR has been registered against the appellant under Section 376 IPC vide Ex.P/1 on 24.05.2003. The prosecutrix was sent for medical examination to Dr. Bheemrao Ambedkar Memorial Hospital, Raipur where Dr. Smt. Neela Kumhare, PW-10, has examined her and gave her MLC report, Ex.P/11. In her MLC report, the Doctor found that the prosecutrix was carrying about seven months pregnancy and advised her for ultrasonography test for confirmation of the same. The slides of vaginal swab have also been prepared by the Doctor. For confirmation of her age, the school admission and discharge register has been seized by the police. Birth certificate based on school admission and discharge register was issued by Headmistress, Namrata Vidya Mandir, Khamtarai, Raipur, vide Ex. P/4 is also seized. Copy of school admission and discharge register is Ex.P/4-C in which the date of birth of the prosecutrix is mentioned as 03.02.1985. The appellant was arrested on 30.05.2003 and he was also sent for medical examination to Community Health Centre, Nawagarh, District Durg where Dr. HL Gupta, PW-8, has examined him and gave his MLC report, Ex. P/5, in which he found that the appellant is capable of having sexual intercourse.

The statement of prosecutrix and other witnesses were recorded under Section 161 CrPC and after completion of investigation charge sheet was filed before the court of Judicial Magistrate First Class, Bemetara. After committal of the case to the court of Sessions Judge Durg, the same was transferred to the court of IIIrd Additional Sessions Judge (FTC) Bemetara, District Durg. The trial Court has framed the charges under Sections 376, 376 and 506 (Part-II) IPC. The accused abjured his guilt and plead innocence.

To prove the guilt of the accused, the prosecution has examined 11 witnesses. In defence, no witness have been examined. The statement of accused under Section 313 CrPC was recorded wherein the accused has pleaded his innocence and false implication in the case. After completion of the trial, the Trial Court has convicted and sentenced the appellant as mentioned in paragraph 1 of this judgment. Hence this appeal.

Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. FIR has been lodged after about seven months of alleged incident which is highly belated and no satisfactory explanation is there with respect to delayed FIR. Report has been lodged against the appellant with ulterior motive and creates doubt on the allegation. There are material omissions and contradictions in the statement of the prosecution witnesses and they do not support the statement of the prosecutrix. He would further submit that the conduct of the prosecutrix is highly suspicious. The prosecutrix is a major lady and engaged in physical relationship with the appellant. She was married with the appellant also. The statement of prosecutrix does not inspire confidence to prove the guilt of the appellant. There is no clinching evidence available on record with respect to the age of the prosecutrix and on the date of incident she became major lady. Therefore, prays for acquittal of the appellant.

Per contra, the counsel for the State vehemently opposes the submissions made on behalf of the appellant and would submit that the prosecution has proved its case beyond all reasonable doubts and the appellant has rightly been convicted by the trial Court. There is no infirmity and illegality in the impugned judgment and the same does not warrant interference.

I have heard the rival contentions put forth on either side and perused the judgment impugned and materials available on record.

The prosecutrix has been examined as PW-1. In the FIR she has stated that on the date of incident in the noon when her family members had gone to field, the appellant came inside her house and committed forceful sexual intercourse with her. She tried to raise alarm but due to gag of her mouth by the appellant and threatening with dire consequences, she could not raise alarm. Subsequently, the appellant has again made physical relation with her twice as and when he found her alone. When she conceived pregnancy, she asked him to get married with her and on 23.01.2003 the appellant married with her by Jaimala. When the appellant performed second marriage and bring another lady in his house, she thrown her out from the house and then a report has been lodged. At the time of lodging FIR, she was carrying about seven months pregnancy. In the FIR she has stated that the first incident of intercourse was taken place during Dashehra festival whereas, the appellant performed marriage with her on 23.01.2003. Time gap between these period is about three months. She has not lodged any report or complaint to anyone, but continued in physical relationship with the appellant. It is only when the appellant has performed second marriage, the report has been lodged by the prosecutrix that too after about four months of marriage with the appellant which comes about seven months after the alleged first incident of rape.

In her deposition, the prosecutrix, PW-1, has stated that she has informed the incident to her grandparents and uncle aunt after about 4-5 months of incident. Thereafter, her family members have called community meeting in which the appellant denied his guilt, but on the next day the appellant was ready to keep the prosecutrix with him and admitted the fact that the prosecutrix conceived pregnancy from his side. Thereafter, the respectable persons of the community have taken her to the house of the appellant where the appellant has performed Jaimala marriage. After Jaimala marriage she was residing in the house of the appellant and continued in physical relation with him while she was staying with the appellant. Thereafter, the appellant has performed second marriage and thrown her out from his house and she returned back to her parents house and thereafter she lodged an FIR.

In her cross examination, she has admitted that her parents are residing in the joint family. In her joint family, her grandparents, her two brothers and two sisters and her uncle aunt were also residing with her. Her parents house are adjoining to the house of Ganesh Sahu, Chandrika Sahu and others. Further, she also admits that when any person wants to come to her house, one has to pass through the cattle shed, courtyard and thereafter her uncle aunt’s room. She was in her bedroom and was doing some work there. The appellant came in her bedroom and after committing sexual intercourse with her he went out after opening the bolt of the door which was bolted from inside.

In para 10 she has stated that she has not raised any hue or cry at the time of incident and admits that statement made in examination in chief that she raised hue and cry is false. When the appellant left her house after the incident, she has not disclosed this fact to her father. Thereafter, the community meeting was convened and report has been lodged after about one month of delivery of her child. She has further stated that she has performed all the rituals of married lady and from the date of marriage she treated the appellant as her husband. After marriage the appellant went to Meerut to earn his livelihood. When the appellant was at Meerut, she returned to her parents house. When the appellant returned back from Meerut, he performed second marriage.

The allegations made by the prosecutrix in the FIR is that, at the time of incident she raised hue and cry, but in her deposition she has stated that her statement of raising of hue and cry at the time of incident is false and she has not raised any hue and cry at the time of incident. Her parents house, where the incident is said to have been taken place, is adjoining to the houses of the other villagers as well as the entry point of her house was passing through cattle shed, courtyard, the room of her uncle-aunt. Her parents house is situated in the dense locality of the village in which the house of villagers are adjoining which is apparent from the spot map Ex. P/9.

If the prosecutrix would have raised hue and cry, it is very unlikely that the persons residing in the adjoining houses of the prosecutrix house could not hear it. None of the persons have been examined by the prosecution who have seen the appellant entering into the house of the prosecutrix or coming out from her house. Even after the incident she has not disclosed this fact for about 3-4 months to her parents and it is only when she became pregnant, she had disclosed this fact to her parents.

Bhagwati Sahu, PW-2, father of the prosecutrix, has stated that as per Hindu month of Poush, his daughter informed him about the incident and thereafter he has taken her to village Lalpur and called community meeting and thereafter sent the prosecutrix to the house of the appellant where she stayed for about three months and thereafter the appellant thrown her out from his house. Then, he has taken her to Raipur and lodged an FIR at Mahila Police Station, Raipur. In his cross examination, he denied that he has stated before the police that the appellant has committed rape upon his daughter. He has stated that the prosecutrix informed the incident to her mother and thereafter his wife informed the incident to him. He doesn’t know about the Jaimala marriage between the appellant and his daughter. If the appellant kept his daughter with him, he would not have lodged the report against the appellant. He denied disclosure of material facts before the police while the police has recorded statement under Section 161 CrPC, Ex.D/1.

16.PW-3, Fulbasan, mother of the prosecutrix, have stated that as per Hindu month of Poush, her daughter has disclosed that the appellant has committed wrong work and threatened her with dire consequence. She further states that the appellant was frequently visiting to her house from the Hindu month of Kuwar. In her cross examination, she further states that she used to visit her village frequently then also the prosecutrix has not disclosed the incident. When she observed growth of her daughter’s womb, she asked her about the same and it is thereafter that the prosecutrix has disclosed about the incident. She too had admitted that had her daughter not conceived pregnancy, she would not have disclosed the act of appellant. In her statement, she has not stated that when her daughter informed her about the incident, she informed the incident to her husband i.e. father of the prosecutrix, whereas, the father of the prosecutrix, PW-2, have stated that the prosecutrix informed the incident to her mother and her mother has informed him the incident.

17.PW-4, Firanta, is the witness of community meeting. He states that he was member of meeting. When the prosecutrix raised allegation against the appellant, the appellant denied his guilt and therefore no decision was taken on the date of meeting and thereafter they have taken the prosecutrix to the house of the appellant where the appellant was absent and his family members were there and they left the prosecutrix in the house of appellant.

18.PW-5, Dharmu, is the witness of marriage between the appellant and the prosecutrix.

19.PW-6, Punni Das, is the village Kotwar, who has stated that the father of the prosecutrix had called the said meeting in the village in which the prosecutrix has informed the incident and alleged that she has conceived pregnancy from the appellant side, but the appellant did not accept his guilt and kept quite. In cross examination, this witness has admitted that the prosecutrix has informed that she was in love affair with the appellant and she conceived pregnancy from him.

20.PW-7, Smt. S. Chouhan, is the Headmistress of Namtra Vidya Mandir, Khamtarai, Raipur. She has stated that she issued the certificate, Ex.P/4 on the basis of the school admission and discharge register, Ex. P/4-C. In her cross examination she has stated that at the time of admission of the prosecutrix in the school her father has not produced any birth certificate, Kotwari register or Municipality records with respect to her date of birth. Based on presumption her father has entered her date of birth as 03.02.1985.

21.PW-8, Dr. HL Gupta, is the Doctor who has medically examined the appellant and given his report vide Ex. P/5 in which he has stated that the appellant is capable of having sexual intercourse.

22.PW-9, Hemraj Sidar, is the Assistant Sub Inspector, who conducted part of the investigation. PW-10, Neela Kumhare, is the Doctor who has medically examined the prosecutrix and gave her report, Ex. P/11, recommending for ultrasonography for confirmation of pregnancy.

23.PW-11, Sandhya Dwivedi, is the Sub Inspector, who conducted part of investigation.

Considering the statement of the prosecutrix in her FIR as well as in her deposition, there are material contradictions in raising alarm at the time of incident. Had she been raised hue and cry, the persons of adjoining houses would certainly be gathered there and looking to the situation of her bedroom where the alleged incident is said to have taken place and the manner in which the accused came out from her house, it would not be possible for any person to enter into her house and forcefully commit sexual intercourse and came out from her house without her will and consent. Not disclosing the alleged incident for about 3-4 months creates doubt on the version of the prosecutrix that the appellant has committed forceful intercourse with her.

Further, even after 3-4 months when community meeting was convened and the prosecutrix was sent to the house of the appellant and the appellant had performed marriage with her, she continued in physical relation with her as his wife and it is only when the appellant has performed second marriage, the report has been lodged.

The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix’s evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of prosecutrix and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

The written report has been lodged after about 6-7 months of the alleged incident when pregnancy became apparent which is highly belated and no satisfactory explanation is provided with respect to delayed F.I.R. When FIR is delayed, in absence of a proper explanation, the courts must be on guard and test the evidence meticulously to rule out possibility of embellishments in the prosecution story, inasmuch as delay gives the opportunity for deliberation and guesswork. Even the prosecutrix have not informed anyone about the incident for such a long period.

From the material available on record, it appears that the prosecutrix did not raise any alarm at the time of occurrence and there is no sign of protest. The report is highly belated. Therefore, this court is of the considered opinion that it would be unsafe to convict the appellant based on the testimony of prosecutrix. The appellant would certainly be entitled for the benefit of doubt.

Now the second question would be that of age of the prosecutrix and whether on the date of incident she was minor or not?

In Ex.P/4 and school admission and discharge register, Ex.P/4-C, the date of birth of the prosecutrix is recorded as 03.02.1985. These two documents are proved by PW-7, Smt. S. Chouhan who was Headmistress of Namrata Vidya Mandir, Khamtarai, Raipur. She is not the author of the document Ex.P/4-C, the school admission and discharge register on the basis of which certificate, Ex. P/4, is issued. In the absence of examination of the author of the document, the same cannot be relied upon to determine the age of the prosecutrix. Even otherwise, the date of birth of the prosecutrix is recorded as 03.02.1985 and the date of incident is said to have been on the occasion of Dashehra festival in the year, 2002. Dashehra festival usually comes in the month of October - November every year, and as such it can be presumed that the age of the prosecutrix on the date of incident was about 17 years and 8 months. Thus, she was admittedly more than 16 yeas of age at the time of alleged incident. Therefore, the act of the appellant and the prosecutrix does not travel beyond the consensual physical relation between them.

So far as threat alleged to have been given by the appellant to the prosecutrix is concerned, a belated report has been lodged. Even after the alleged threat, she was frequently moving around in daily life; continued in making physical relation with him and residing with the appellant for a considerable period. All these circumstances falsify the allegation of threat given by the appellant.

The appeal accordingly stands allowed. The impugned judgment of conviction and order of sentence dated 21.11.2003 stands set aside. The appellant is acquitted from the charges under Sections 376, 376 and 506(II) IPC. He is reported to be on bail. His bail bonds shall remain in operation for a further period of six months in view of provisions contained in Sections 437-A CrPC.