Manoj Kumar vs State Of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 29.03.2003 passed by Third Additional Sessions Judge (FTC), Janjgir, (C.G.) in Sessions Trial No.25 of 2003 whereby, the learned Third Additional Sessions Judge convicted the appellant and sentenced him as under :-

Conviction

Sentence

Under Section 376 of Indian Penal Code, 1860

R.I. for 7 years.

Under Section 342 of Indian Penal Code, 1860

R.I. for 6 months.

Both the sentences were directed to run concurrently.

The prosecution story, in brief, is that, prosecutrix was residing with her mother Phatkanbai (PW-5) at village Pendri and her father was doing the work of watchman in Amritsar (Punjab). On 16.11.2002, at about 3.00 P.M., she went to field for cutting paddy and at about 07.00 P.M., she was returning from elder mother’s house to her house, at that relevant time, appellant was standing on the door of his house and when prosecutrix came there, he caught hold of her, closed her mouth, forcefully taken her to his house and committed forceful sexual intercourse with her. On the same night, appellant had not left the prosecutrix and further committed sexual intercourse with her twice. On 17.11.2002, at about 4.00 AM, she came to her house, at that time, her mother was not present in the house and when she came to home at about 5.00 AM, she narrated the incident to her mother. On the same day i.e. 17.11.2002, at about 10.00 PM, Panchayat was convened, in which, prosecutrix and her mother were present and they narrated the incident to members of the Panchayat. On the very next day, i.e. 18.11.2002, First Information Report was lodged against the appellant. Police seized the clothes and undergarments of prosecutrix. Thereafter, prosecutrix was sent for medical examination and appellant was also sent for medical examination. Statements of witnesses were recorded and after completion of investigation, charge-sheet was filed against the appellant.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 9 witnesses and exhibited 13 documents. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C., in which, he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

After hearing the parties, vide impugned judgment of conviction and order of sentence dated 29.03.2003, learned Third Additional Sessions Judge, has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

Learned counsel for the appellant submits that there was no injury found on the body of prosecutrix, which leads to only conclusion that prosecutrix was consenting party to the incident. He further that trial Court ought to have considered that prosecutrix was in the house of appellant for whole night and she neither try to resist or run away nor shouted. It is argued that there is hardly any reliable evidence on records to warrant conviction of appellant under the aforementioned sections of Indian Penal Code, 1860 (for short ‘IPC’) and prosecution has failed to prove its case beyond reasonable doubt. It is further argued that trial Court has wrongly held the appellant guilty in absence of defective corroboration and medical evidence in support of charges levelled against him. It is submitted that trial Court has failed to consider the evidence properly as it has been stated that there was another person residing with appellant and it cannot be said that appellant has committed rape when there is only two room in house and another person is residing with him. It is lastly argued that impugned judgment of conviction and order of sentence passed by trial Court is contrary to the facts and law, which deserves to be set aside.

Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments of learned counsel for the appellant.

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

Before amendment in Indian Penal Code, 1860 in the year 2013, crime of rape was defined under Section 375 of IPC. According to sub-Section 6, consensual sexual intercourse when the victim is below 16 years of age was defined as ‘rape’. According to sub-Sections 1 & 2, sexual intercourse committed without will or consent was defined as ‘rape’. In the present case, the incident is of the year 2002 i.e., before amendment. It is clear from the case of prosecution as well as judgment or conviction and order of sentence that prosecutrix (PW-1) herself stated her age as 16 years and her mother (PW-5) stated the age of prosecutrix as 16 years 3 months. Prosecution did not collect any evidence in this regard to prove that on the alleged date of incident, age of prosecutrix (PW-1) was less than 16 years. Thus, considering that prosecutrix had completed 16 years of age, conviction was made after appreciating the evidence produced by trial Court and finding that prosecutrix was raped without her consent.

In view of defence of appellant in above situation, it has to be determined whether appellant has committed sexual intercourse with prosecutrix without her consent ?

Appellant and prosecutrix belong to same caste and both are neighbours. In the house of prosecutrix, her mother (PW-5) resides with her, whereas her father was employed at Amritsar of other State; meaning thereby that only mother was living with prosecutrix (PW-1) in the house. As such, there is no evidence that on the night of alleged incident, mother of prosecutrix (PW-5) could not find her in the house and searched somewhere in the neighbourhood.

In the Court statement, prosecutrix (PW-1) has stated that when she was coming back to her house from her elder mother's house, which was in front of house of appellant, at about 7.00 P.M., suddenly street became dark due to switching off lights, appellant caught hold of her, dragged inside the room of his house by pressing her mouth and dropped her on the cot. She was asked to take off her clothes or threatened her to kill, upon which, she took off her clothes. Thereafter, appellant made her lie down on a cot and committed sexual intercourse with her without her consent and desire. She was not allowed to leave the room at night, kept the room closed and committed sexual intercourse with her twice again in the night. When the door was opened at 4.00 A.M., she returned to her house where she was not found her mother. Later, her mother (PW-5) came after an hour, i.e., at about 5.00 A.M. when she narrated the incident to her. Upon insisting, Panchayat convened in next night where she and her mother narrated the incident. The Panchas stated that they could not do anything. Then on third day i.e., on 18.11.2002, she went to police station along with her mother and lodged a report. Assistant Sub Inspector, L.P. Tiwari (PW-2) has lodged the First Information Report vide Ex.P/1.

It is noteworthy that salwar, shirt and underwear of prosecutrix was seized vide Ex.P/3 and kathri (Godri) was seized in house of appellant vide Ex.P/11. Since no chemical test report was submitted, hence, it could not be ascertained that semen or human sperm was found in it.

In the statement recorded under Section 313 of Cr.P.C., appellant has denied the suggestions of prosecution witnesses and declared himself innocent. According to suggestions and questions put by appellant’s side to prosecutrix (PW-1) as well as her mother (PW-5), Investigator S.S. Bhagat (PW-6) and Panchayat Panch Shantilal (PW-7) during cross-examination, none of the witnesses have stated that prosecutrix was in love-affair with appellant; both of them belonged to same society, hence, wanted to get married. But, the above suggestions definitely reveal the defence of appellant that prosecutrix was consenting party. Therefore, it would be appropriate to review the entire prosecution evidence in order to defence of the appellant.

Patwari- Ramkumar Yadav (PW-3) has proved the spot map vide Ex.P/4. Looking to the statement of Ramkumar Yadav (PW-3), prosecutrix (PW-1) and her mother (PW-5), the situation becomes clear that house of both the parties is just in a gap of one street, distance of which is about 50 feet. In front of the house of appellant, there was a house of Rajkumari- elder mother of prosecutrix. The prosecution has not collected any evidence to show that in the house of appellant who were lived with him or whether there were other people at the time of incident or not. In such a situation, when the house of both the parties is nearby, residence of elder mother is in front of the house of appellant, there is no mention about shouting of prosecutrix. It is not clear in the entire evidence that she shouted for protection from appellant or tried to run away. At this stage, her own conduct is likely to give rise to suspicion.

When the prosecutrix was asked why she did not defend herself and did not ask for help by giving noise, prosecutrix has stated that appellant had threatened to kill her. But, prosecutrix has not made any clear statement regarding when, how and with what he will kill her. The house of appellant and in front of it, house of elder mother of prosecutrix is said to be at a distance of about 7 to 8 feet. In such a situation, it was possible that if prosecutrix had shouted for protection, her elder mother's relatives would have heard the noise. In spite of that, prosecutrix did not shout for rescue all night, did not ask for help, did not make any attempt to rescue, did not clearly stated that with what and in what manner, appellant threatened her to kill and thus, upon afraid, she did not give noise for help in the alleged crime of rape. All these things and situation is going to make the action of prosecutrix suspicious.

Shantilal (PW-7) and Shyamlal (PW-8) both residents of same Village Pendri. It is clear from their statements that on the request of mother of prosecutrix (PW-5), panchayat was convened, in which, prosecutrix narrated the incident, but appellant denied the incident. In cross-examination of Shantilal (PW-7), it was suggested that he had no knowledge that there was love-affair between appellant and prosecutrix. He has admitted that prosecutrix and appellant were asked by Panchas to marry, if they were ready, but both of them did not agree. It has been suggested by defence to Shantilal (PW-7) and Shyamlal (PW-8) that on the alleged night of incident, prosecutrix was taken by her mother to Sarpanch's house in the night itself. These witnesses have denied the knowledge of said matter. In such a situation, it is being reflected that somewhere topic of love-affair between the appellant and prosecutrix was discussed in the Village, which was raised in Panchayat.

The prosecutrix has stated in her statement that on the night of alleged incident, appellant was alone in his house and no member was present. In para-22, she admitted that there were two more houses near the house of appellant, one of which belongs to her elder mother Rajkumari and other belongs to brother of appellant. But, it is worth mentioning that despite the house of relatives being so close, whole night, prosecutrix did not seek any help from them by shouting, whereas the incident stated to have been occurred at around 7.00 P.M. In such a situation, as per medical examination report (Ex.P/14) of prosecutrix given by Dr. (Smt.) Rama Ghosh (PW-9), no marks of injury were found on the body and private parts of prosecutrix. As such, it does not appear that she has made any attempt to protect herself from the appellant.

The prosecutrix has not clearly stated as to which weapon, appellant had shown her or in what manner, she afraid that she did not resist even in a serious incident like rape and remained afraid by appellant throughout the night, whereas close relatives of both the parties were lived in neighbourhood and her own house was nearby. Despite the prosecutrix not returning home whole night, there was no evidence to show that her mother (PW-5) searched for her in the neighbourhood during the night. In such a situation, statement of prosecutrix became doubtful that appellant had committed forceful sexual intercourse with her without her consent and kept her locked inside the room. At this stage, considering the defence of appellant that prosecutrix was consenting party, case of the prosecution has not been proved beyond reasonable doubt against the appellant. The benefit of doubt should be given to the appellant. As such, offence punishable under Sections 376 and 342 of IPC is not made out against the appellant. Therefore, finding of trial Court in this regard, is not found to be sustainable in the eyes of law.

In the result, the appeal is allowed. The judgment of conviction and order of sentence is set-aside. The appellant is acquitted of the charges framed against him under Sections 376 and 342 of IPC by giving benefit of doubt. The appellant has been stated to be on bail, he need not surrender before the trial Court. However, his bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC. If there is no need to appear in the Superior Court, he will be deemed free from bail bonds.

Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.