Raju Alias Rizwan vs State Of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 04.07.2003 passed by Fifth Additional Sessions Judge, Raipur, (C.G.) in Sessions Trial No.256 of 2002 whereby, the learned Fifth 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 506 of Indian Penal Code, 1860

R.I. for 1 year

Both the sentences were directed to run concurrently.

The prosecution story, in brief, is that, on 04.05.2002, Smt. Meena Panda, who is mother of prosecutrix, lodged a report at Mahila Thana, Raipur stating therein that she was living with her husband and children at Changorabhata Raipur. Her daughter prosecutrix (PW-1) was aged about 13 years and studied upto Class-IV. Prosecutrix was working on a daily wage of Rs.25/- under appellant (scrap shopkeeper) for about one month. One of her neighbour, namely, Meerabai told her that appellant was of a bad character and advised not to send the prosecutrix, thereafter, she refused to go for work. In the night, father of the prosecutrix came under intoxicating condition and told to her wife that why prosecutrix did not go for work, then she told that Meerabai informed that appellant Raju was committed bad act with prosecutrix. Upon asking, prosecutrix stated that appellant has committed sexual intercourse with her on three occasions. The appellant also told her that if she will disclose the incident to anybody, he will strangulate her, hence, she did not tell the incident to anybody. On the basis of report of mother of prosecutrix (PW-4), In-charge of Mahila Thana, Raipur lodged a First Information Report bearing Crime No.23 of 2002 for the offence punishable under Sections 376 & 506 of the Indian Penal Code, 1860 (for short ‘IPC’). The prosecutrix was sent for medical examination. The school register was seized to determine the age of prosecutrix. Spot map was prepared. Statements of witnesses were recorded and thereafter, appellant was arrested. The appellant was also sent for medical examination. After completion of investigation, charge-sheet was filed.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 11 witnesses and exhibited 10 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 04.07.2003, learned Fifth Additional Sessions Judge, Raipur 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 trial Court has committed gross error in holding that on the date of incident, prosecutrix was minor. He further submits that in absence of birth certificate and ossification test, age of prosecutrix cannot be ascertained conclusively. It is contended that trial Court has erred in holding that there was inordinate delay in lodging the FIR. It is further contended that there was no injury found on the body of prosecutrix as well as accused, which leads to only conclusion that prosecutrix was consenting party to the incident and Doctor was also opined that prosecutrix was habitual of sexual intercourse, hence, conviction of appellant under Section 376 of IPC is bad in the eyes of law. It is lastly argued that finding of the trial Court is based upon the surmises, for which, there is no specific evidence though there was a narration of prosecution story supplied by the Police in the charge-sheet and as such the evaluation, analysis and scrutiny of the evidence were not done properly by the trial Court with proper perspective, sentence imposed upon the appellant is excessive and harsh, therefore, appeal may be allowed.

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

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

The incident is of the year 2002. Before amendment in Indian Penal Code in the year 2013, rape is defined under Section 375 IPC, according to which, if any person has committed sexual intercourse with a girl below the age of 16 years, with or without consent, after putting that girl or any other person in fear of death or hurt, then the offence of rape has been made out. The incident occurred in this case, prior to the amendment.

The crime of rape with the prosecutrix has been occurred in above two circumstances. According to prosecution case, at the time of incident, age of the prosecutrix was not even 13 years and report was lodged after 20-25 days because of threat given by appellant.

Dr. A. P. Padraha (PW-8) prepared the medical examination report of appellant (Ex.P/7), in which, he declared him capable of sexual intercourse, which was not challenged by the appellant.

Dr. (Mrs.) Jaya Fuljhele (PW-11) examined the prosecutrix on 06.05.2002 and gave its report vide Ex.P/6A, according to which, menstruation of 13 years old prosecution was started 8 months ago. There were no injury or marks on her body or private parts. There was slight bleeding from opening of her uterus. Her hymen was old torn, in which, no blood was found. Two fingers were easily entered into her vagina and no definite opinion could be given about recent sexual intercourse. She was addicted to sex. It is noteworthy that according to prosecution case, report of the incident has been lodged after 20-25 days. It is stated that the appellant committed sexual intercourse with the prosecutrix on three times, in the said situation, if after 25 days of medical examination of prosecutrix, the doctor does not give a definite opinion about recent sexual intercourse, then it cannot be said that appellant was not having sexual intercourse with her. The prosecutrix was found addicted to sexual intercourse and her hymen was chronically torn. Therefore, prosecution case would be based only on the statements of prosecution witnesses.

The appellant has stated in his statement recorded under Section 313 of Cr.P.C. that family members of prosecutrix used to do wrong things with her, due to which, environment of locality was getting spoiled. When he opposed it, he was falsely implicated in the crime in question.

It is an important fact that both the parties are residents of same locality. The mother of the prosecutrix is (PW-4) (hereinafter referred to as "mother"). The neighbour of prosecutrix is Ms. Suchita (PW-2), who saw the occurrence of incident through the hole in the door and narrated the same to her mother. Her mother is Meera Barwaik (PW-3), who alerted the mother of prosecutrix (PW-4) and narrated the incident. All these witnesses lived in the same neighbourhood and at that time, appellant was running a scrap shop in a rented house, which he had taken on rent from Smt. Lalita Asdev (PW-5). Mrs. Lalita Asdev has confirmed the fact in her Court statement that appellant used to run a scrap shop by renting a room in her house. After knowing the incident from Shankar, she told the appellant to vacate her house.

Now before narrating the evidence of prosecutrix and other important witnesses related to the incident, let us look at the evidence presented regarding the age of prosecutrix at the time of the incident.

It is worth mentioning that prosecutrix (PW-1) has stated that she was aged about 13 years. She has stated her date of birth to be 05.07.1989, which was mentioned in her school certificate. The investigation of the case was done by Sub Inspector- Smt. Sandhya Dwivedi (PW-7). She seized transfer certificate of school of the prosecutrix (Ex.P/4) and prepared a seizure memo (Ex.P/5). She also seized admission register of Primary School Tilnagar, Gudhiyari (Ex.P/ 10) vide Ex.P/8, in which, date of birth of prosecutrix was recorded as 05.07.1989.

Headmaster- K.L. Dewangan (PW-9) presented the original admission register to prove the date of birth of prosecutrix and stated that in the admission register, date of birth of prosecutrix was recorded as 05.07.1989. He admitted in his cross-examination that mother of the prosecutrix (PW-4) had come to school for admission of prosecutrix, according to which, date of birth was recorded. K. L. Dewangan (PW-9) brought the admission register of the school along with affidavit register, in which, same date of birth of prosecutrix was recorded. However, mother (PW-4) has been unable to tell the date of birth of prosecutrix, but she has stated that prosecutrix was born in the hospital. She has confirmed the seizure of transfer certificate (Ex.P/4) of the school and clarified that date of birth of prosecutrix was recorded in the school on the basis of the paper obtained from Hospital. Thus, mother of prosecutrix (PW-4) corroborates the fact that on the basis of paper of hospital, she recorded date of birth of prosecutrix in the school. Headmaster- K.L. Dewangan (PW-9) has stated that which date of birth of children was written by parents, he recorded the same in the school. Thus, there is no doubt that mother of prosecutrix had told the date of birth of prosecutrix as 05.07.1989 in the school. The date of birth is not suspicious in any way. Calculating on the basis of that date of birth, it is reflected that prosecutrix had not even completed 13 years on 04.05.2002 (the date of lodging of First Information Report vide Ex.P/1).

In view of above, the fact has been proved that on the date of alleged incident, prosecutrix was below 16 years of age.

The prosecutrix (PW-1) has stated in her Court statement that she used to wash vials and bottles in the scrap shop of appellant and appellant used to give her a daily wage of Rs.25/-. At the behest of appellant, her mother had engaged her for the said work. During that time, when she was washing the vial, appellant locked the door from inside, made her sleep in the corner of shop, stripped her underwear and committed sexual intercourse with her. When she refused, appellant did not agree and coerced her. Appellant has also stated that if she told the incident to anyone, he will kill her. In this way, appellant used to threaten her and told her not to go in neighbourhood, abused her and committed sexual intercourse thrice. Once the incident was witnessed by her neighbour Ms. Suchita (PW-2), who told her mother, then her mother forbade the prosecutrix, then she refused to go to work in the shop of appellant. Thereafter, appellant used to threaten her and prosecutrix went to police station along with her mother and lodged a report. Later, police prepared a spot map vide Ex.P/2.

As a neighbour, her friend Ms. Suchita (PW-2), who was aged about 14 years, has stated that through the hole of door of shop of appellant, she had once seen the appellant committing sexual intercourse with prosecutrix while she was sleeping on the ground. Then, prosecutrix trying to shout and escape, but appellant had clogged her. When she suddenly pushed the door, appellant got up and fled away, then she narrated the incident to her mother.

Suchita's mother Meera Barwaik (PW-3) has stated that her daughter Suchita had come and told that appellant had committed wrong with prosecutrix, which she had seen. Then, she informed the mother of prosecutrix (PW-4) about the same. Thereafter, a quarrel between prosecutrix and appellant increased and prosecutrix gradually stopped visiting the shop of appellant. Later, appellant quarreled with mother of the prosecutrix stating that why she does not send her daughter to his shop and send her to someone else's place.

Mother of prosecutrix (PW-4) has stated that she had employed her daughter i.e. prosecutrix (PW-1) to work in the shop of appellant. Later on, she was told by Meera Barwaik (PW-3) that she do not send the prosecutrix to appellant's shop otherwise her life would be spoiled. Then, prosecutrix stopped going to work at appellant's shop. The appellant started quarreling and abusing her and then she came to know about the incident from Meera Barwaik (PW-3). She took the prosecutrix along with her and went to police station and lodged a report vide Ex.P/3.

The prosecutrix (PW-1), her mother (PW-4), friend-cum-neighbour of prosecutrix, Ms. Suchita (PW-2) and Suchita’s mother Meera Badwaik (PW-3) have remained unrebutted in their cross-examination. There is no significant contradiction between their Court statement and police statement regarding basic facts of the incident. It is stated that they do not have any interest in making false statement against the appellant. There is no clear ground to believe that 13 year old prosecutrix was lodged a false report against the appellant. According to defence of appellant, there is no evidence that relatives of prosecutrix have been told to prosecutrix to do wrong things.

The prosecutrix, who is a 13 year old minor cannot be expected to inform about such an incident quickly to her family members. At the time of occurrence, prosecutrix was working with appellant and thus, she was under the influence of appellant. Even at that stage, it was not possible for her to oppose the appellant. The manner, in which, incident had been stated that appellant used to forcefully coerce her and threatened to strangle or kill her, even in that situation, it is naturally reflected by conduct of prosecutrix that she not immediately informed the incident to her family members. Her friend saw the incident from hole of the door, told to her mother, then her mother Meera Badwaik (PW-3) warned the mother of prosecutrix (PW-4) not to send the prosecutrix to the shop of appellant, thereafter, prosecutrix did not go to work in the shop of appellant and later, appellant quarreled with prosecutrix and her family members, threatening her by stating that why she does not send the prosecutrix to his shop and send her to someone else's place. This appears to be a natural reaction of appellant, which goes to show that he was physically abusing the minor prosecutrix and was deprived of it when prosecutrix stopped coming to work at his shop. Due to which, he started quarreling with prosecutrix and her family members. Thereafter, a report was lodged to the police.

The whole situation is reflecting the natural result of incident of physical abuse with a minor. Therefore, looking to the nature of offence, it cannot be said that report has been lodged with inordinate delay and the delay is unconscionable. Rather, entire sequence of events and conduct of minor show that delay is natural and reason for alleged threat is satisfactory. Therefore, no reason is found to disbelieve the evidence of prosecutrix (PW-1), her mother (PW-4), neighbour-cum-friend Ms. Suchita (PW-2) and her mother Meera Barwaik (PW-4).

On the basis of the aforesaid discussions, it is proved that appellant had committed forceful sexual intercourse with prosecutrix, who was below the age of 16 years under threat and as such, he has committed the offence of rape as well as criminal intimidation. Therefore, his conviction under Sections 376 and 506 of IPC is found justified, which does not require any interference.

Insofar as the sentence imposed upon the appellant is concerned, before amendment in the year 2013 and at the time of incident, there has been a provision of minimum sentence of 7 years of imprisonment for the crime under Section 376 of IPC, which has been granted by the trial Court, no interference is called for even on the punishment.

Therefore, arguments advanced on behalf of the appellant side, are not found acceptable.

In the result, appeal being devoid of substance, is liable to be and is hereby dismissed. The conviction and sentence of appellant is affirmed. The bail bond of appellant is cancelled. The appellant is directed to surrender before the trial Court immediately, then it should be ensured that he will be served the remaining part of sentence.

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