Om Prakash @ Om Soni vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal arises out of the judgment and order dated 28-3-2008 passed by Special judge Sarguja at Ambikapur in Special Case No. 135/2006 convicting the accused/appellant u/s 376(1) IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 200, in default of payment of fine to further undergo rigorous imprisonment for one month. Facts of the case in brief are that on 6-10-2005 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 13 years at the relevant time alleging that on 21-9-2005 when she had gone to jungle to collect twigs, the accused/appellant reached there and after gagging her mouth with a piece of cloth committed forcible sexual intercourse with her and after commission of the offence he threatened her of life and then left the spot. Thereafter, she went to her house but did not disclose the incident to anyone and taking Rs. 15/- she went to her maternal grand-mother''s house by boarding a bus and on being asked by maternal grand-mother she narrated the entire incident to her. She also informed her maternal grand mother that she had come there without informing anyone. It is alleged that six days thereafter, her father came there and took her to his house where she narrated the incident to her mother, father and uncle and then the matter was reported to police. Based on this FIR, offences under Sections 376, 506 IPC and 3(1)(xii) of the Act were registered against the accused/appellant and after completion of investigation challan was filed by the police on 6-11-2006 for the said offences.

In support of its case, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the allegation made against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has acquitted the accused/appellant of the charge u/s 506 IPC and 3(1)(xii) of the Act but convicted and sentenced him as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that a very improbable story has been put forth by the prosecutrix and her statement made in the Court differs from the FIR and the case diary statement on material particulars. He further submits that there is an inordinate delay of about 15 days in lodging the report and that too has not been properly explained by the prosecution.

On the other hand counsel for the respondent/State supports the judgment impugned.

Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 9 a.m. when she had gone to jungle to collect the twigs, accused/appellant came there, caught hold of her hand and though she somehow managed to get rid of him, he chased and again caught hold of her. Though while offering resistance she gave him two-three fist blows and tried to slip away from his clutches, he again caught her and when she started weeping, he gagged her mouth with a piece of cloth, mounted her, removed her underwear and committed forcible sexual intercourse with her putting her under threat of life in case she disclosed the incident to anyone. Thereafter, she went to her house and disclosed the incident to her mother who then informed the same to her father. She has further stated that on the next day when her father was going to the police station to lodge the report, accused/appellant and his father came to her house and threatened her of life and house being put to fire in case matter was reported to the police, and it is for this reason her father did not go for lodging the report on that very day. Thereafter, a village meeting is said to have been called by the father of the prosecutrix where a decision to lodge the report was taken and then she along with her mother, father and brother went to police station Ramanujganj and the report Ex. P-1 was lodged. Statement of prosecutrix appears to be inconsistent because she has given altogether different versions while stating the things in the FIR, case diary statement and also the statement made before the Court.

Brahmdev (PW-2)-father of the prosecutrix has stated that on the date of incident he was informed by his wife that the prosecutrix was subjected to rape by the accused/appellant and on the second day when he enquired the accused/appellant about the incident, he had told him to take Rs. 5,000-10,000 and put an end to the matter. Statement of this witness is contrary to his case diary statement where he has stated that when he did not find the prosecutrix in his house, he made a search for her and then an information was received by him that she was in her maternal grand-mother''s house and 6-7 days thereafter he had brought her to his house where she made disclosure of the incident. Statement of this witness made in the Court also being altogether different from the case diary statement is quite untrustworthy loses its reliability. Lallu Nagvanshi (PW-3) is a villager who has stated about the village meeting. He is also a witness to the seizure of underwear of the prosecutrix vide Ex. P-3. Smt. Vanaspati (PW-4)-the mother of the prosecutrix has stated the same thing as by her husband (PW-2) and her statement too is contrary to what she has stated in her case diary statement. Ramashankar Mishra (PW-5) is the Patwari who had prepared spot map. Dr. (Smt.) Prabha Burman (PW-6) is the witness who medically examined the prosecutrix and gave her report Ex. P-5 stating that she did not notice any injury on the person of the prosecutrix, her hymen was old torn and one finger easily entered her vagina. For further examination, she had referred to the prosecutrix to a specialist. Devlal Singh Armo (PW-7) is the investigating officer who has supported the case of the prosecution Dr. (Smt.) Lata Goyal (PW-8) is the witness to whom the prosecutrix was referred for expert opinion who vide Ex. P-9 has also stated that there was no external or internal injury on the person of the prosecutrix, her hymen was old torn, one finger entered her vagina and no pain was complained of. Janevdhari (PW-8-A)-the signatory of Ex. P-4 has not stated anything specific. Police constable namely Sahdev Ram (PW-9) is the witness who assisted in the investigation. Dharamdev (PW-10)- uncle of the prosecutrix has stated in his evidence that on the date of incident the prosecutrix came to his house weeping and narrated the incident of rape. Court statement of this witness also is contrary to his case diary statement. Dr. Ajay Kumar Tirki (PW-11) is the witness who medically examined the accused/appellant and gave his report Ex. P-12 opining that he was capable of performing sexual intercourse. Pancham Pandey (PW-11-A) is the witness who recorded FIR and made certain seizure.

Minute examination of the evidence available on record goes to show that there is inordinate delay of about 15 days in lodging the report which has not been explained by the prosecution as required under the law. This apart, statement of the prosecutrix made in the Court itself does not tally with the FIR and the case diary statement because everywhere she has given altogether different stories while narrating the incident and that being so she does not appear to be a trustworthy witness and story brought out by her does not inspire the confidence of this Court. Even the statements of other witnesses have a complete mismatch with that of her. Medical evidence also does not support the case of the prosecution. Even with respect to her age, there is no legally admissible evidence to show that on the date of incident she was minor. In sum and substance, it can be said that the prosecution has been unable to prove its case beyond reasonable doubt and that way the Court below has not been justified in convicting and sentencing the accused/appellant as mentioned above and in these circumstances the appellant cannot be denied benefit of doubt. Accordingly, the appeal succeeds and the judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. Appellant is reported to be in jail and therefore he be set free forthwith if not wanted in any other case.