Shiv Kumar Alias Kushwa and Others vs State of Chhattisgarh

Pritinker Diwaker, J.—The appellants have preferred this appeal against the judgment and order dated 30-11-2007 passed by Additional Sessions Judge Gariaband District Raipur in Sessions Trial No. 35/2007 convicting the accused/appellants u/s 376(2)(g) {in the impugned judgment wrongly mentioned as section 376 (6)} and 450 IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for two months, on each count. Facts of the case in brief are that on 17-5-2007 at about 5.30 p.m. FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 18 years at the relevant time to the effect that on that day at about 12 noon when she was lying on the cot kept in her verandah, she felt about the footsteps of someone. When she got up, she saw accused Kushwa Nishad (accused/appellant No. 1 herein), Tara Chand (accused/appellant No. 2 herein) and one other boy whose name she did not know but on seeing she would recognise him, standing near the cot and as soon as she got up, all three caught hold of her, accused Tara Chand first pressed her mouth with his hands and then inserted the handkerchief in her mouth, caught hold of both her hands and then accused Kushwa removed her as well his own clothes and committed forcible sexual intercourse with her. Further case of the prosecution is that the third boy, whom on seeing she would identify, was present in the house. Then about half an hour thereafter when her parents came back she narrated the incident to them and thereafter the matter was reported to the police. Based on this FIR, offences under sections 376(2)(g) and 450, IPC were registered against them and after completion of investigation, challan was filed by the police on 12-6-2007 for the said offences.

So as to hold the accused/appellants guilty, prosecution has examined 14 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment. Hence, this appeal.

Counsel for the appellants as well as counsel for the State submit that in the FIR and the challan offences under sections 376(2)(g) and 450, IPC are mentioned to have been registered against the accused/appellants but the Court below, may be on account of typographical error, framed the charges under sections 376(6) and 450, IPC and so is the position in the impugned judgment. It is settled legal position that wrong mentioning of particular section will not prove the guilt of the accused/appellants. Moreover, as from the fact and even the language of the charge-sheet it is clear that the charge is u/s 376(2)(g), IPC, this Court is proceeding with respect to his conviction under sections 376(2)(g) and 450, IPC. Even otherwise, this point remains undisputed by the counsel for the parties.

Counsel for the appellants submits that present is a case where the accused/appellants have been implicated in a false case on account of old dispute and enmity between the family members of the prosecutrix and accused/appellant No. 2 herein namely Tara Chand Dewangan of whom accused/appellant Nos. 1 and 3 herein are friends. He submits that existence of dispute between them has been categorically admitted by the prosecutrix and to some extent by her father (PW-4) namely Pitamber. He further submits that a very improbable story has been put forth by the prosecution that she was subjected to rape by accused/appellant No. 1 herein in an open verandah visible from the road which always remained busy, situated in front of her house. He submits that this fact has been admitted not only by the prosecutrix but also by her father Pitamber (PW-4), Patwari (PW-6) and independent witness Kailash Patel (PW-2), He further submits that identification of accused/appellant No. 3 Mohit Patel is doubtful because proper mixing of the persons of similar age group was not done by Tehsildar B. P. Panchbhai (PW-9). According to him, there are even technical lacunae in conducting the identification parade as signatures of the witnesses i.e. the prosecutrix and the persons who were mixed at the relevant time have not been obtained in the identification memo. Counsel for the appellants further submits that medical report of the prosecutrix also does not support the case of the prosecution as according to the doctor who medically examined her, she was found to be habitual to sexual intercourse. He submits that no protest was made by the prosecutrix while being raped by the accused/appellants and even the FSL report is not on record. Therefore, according to the counsel for the appellants, there is no conclusive proof of the fact that the prosecutrix was raped by accused/appellant No. 1 with the help of accused/appellants 2 and 3. He submits that there are material contradictions and omissions in the statement of the prosecutrix as at different places different stories have been put forth by her. In support of his arguments, counsel for the appellants placed reliance on the decision of the Supreme Court in the matter of Krishan Kumar Malik Vs. State of Haryana, and various decisions of this Court as well. He submits that from the evidence available on record it is apparent that two-three different reports were lodged by the prosecutrix and her father whereas no such report has been exhibited by the prosecution during trial. He further submits that reports have been deliberately not filed by the police as from the first report probably no case was made out against the accused/appellants. He also submits that mother and brother of the prosecutrix have not been examined by the prosecution. Lastly, he submits that the appellants are in jail since 17-5-2007 and 19-5-2007 and thereby they have completed the jail sentence of about five years and therefore as regards sentence a liberal approach may be taken against them.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the prosecutrix being a rustic villager, minor contradictions and omissions in her statement should be ignored. He submits that none of the witnesses has stated that 2-3 different reports were lodged either by the prosecutrix or her father. According to the State counsel, giving reference of different reports probably means that on 2-3 occasions the prosecutrix and her father might have been questioned by the police and such questioning to the witnesses cannot be termed as lodging of separate reports. He submits that in the medical report Ex. P-12 Dr. Snehlata Humne (PW-7) has categorically opined that the prosecutrix was subjected to sexual intercourse. He submits that the Court statement of the prosecutrix was recorded on 30-10-2007 i.e. after about five months of the incident and therefore minor contradictions and omissions in her statement are of no significance. He further submits that inimical relations between the family members of the prosecutrix and accused Tara Chand is a double edged weapon and it could be easily said that she was subjected to rape by him with the help of other two accused/appellants on account of the same. He submits that there is no evidence on record to show that anybody had seen the incident and even if the place of incident was visible from the road, no question to this effect has been put to the witnesses in the cross-examination. He submits that identification parade was done in accordance with law. While arguing the case, counsel for the State drew the attention of this Court to the Nazri Naksa Ex. P-18 and submitted that place of incident was visible from the road only at a particular angle and not at every angle. He submits that there is no evidence on record to show as to why the accused/appellants particularly appellants 1 and 3 have been falsely implicated by the prosecutrix. According to him, though FSL report is not there, as statement of the prosecutrix is quite trustworthy, the accused/appellants can be very much convicted even in the absence of FSL report.

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

Prosecutrix (PW-1) has stated in her evidence that she knew all the three accused/appellants. On the date of incident at about 12 noon feeling sleepy, she was lying on the cot kept in her verandah. She had simply shut the door but it was not bolted from inside because her brother used to come there frequently. On sensing the footsteps of someone, when she opened her eyes she saw that all the three accused/appellants had entered into the veranda. On seeing the accused/appellants she tried to raise her voice but accused Tara Chand first pressed her mouth with his hands and then inserted handkerchief into her mouth and both of her hands were tied by accused Mohit who demanded the keys from her. Thereafter, Kushwa (accused/appellant No. 1 herein) removed her clothes, committed forcible sexual intercourse with her, gave certain medicines to her and while going therefrom, he threatened to finish her in case she disclosed the incident to anyone. Accused Mohit while demanding the key, was beating her with club. Thereafter, all the three accused/appellants fled away. On arrival of her mother and father at 12.30 and 1.00 p.m. respectively, she narrated the entire incident to them. Her father called 4 persons of the village and then she along with her parents went to the police station and lodged the report Ex. P-1. Thereafter, she was medically examined, her underwear was seized by the police vide Ex. P-2 and in the identification parade she identified accused Mohit. This witness has stated that she did not receive any injury on account of being beaten by accused Mohit with club as it was not used with that much force. Spot maps were prepared by the police and Patwari. In cross-examination she has admitted that there was a public water tap in front of the house of accused/appellant No. 1 but there was no dispute on account of fetching water from the same. She has also admitted that as the said tap was in front of the house of accused/appellant No. 1, his family members used to have water first but there was no dispute between her family members and that of accused Shiv Kumar. She has expressed her ignorance about the occupation of the accused/appellants. According to her, in front of her house, there is one vacant plot of some Sunil and beside it one hardware shop is situated, ahead of which lies one Dharamsala and on the other side of the plot of Sunil other houses and shops are also there. She has denied that the vacant plot of Sunil was being used as a passage by the family members of accused Tara Chand. She has admitted that the said plot was later sold to someone else and that said Sunil had left three ft. space adjacent to the hardware shop for being used as passage. She has further admitted that her courtyard was fenced by a three ft. boundary wall but towards the plot of Sunil and house of the accused Tara Chand there was only 1� - 1 ft. broken wall. She has stated that on account of erection of boundary wall, the passage leading to the house accused Tara Chand was closed but there was another alternative way open therefor. She has further admitted that on account of the dispute over raising the boundary wall, the relations between her family and that of accused Tara Chand turned sour. She has stated that her house has two rooms with doors and in front of her house there was a verandah, half portion of which was being used as kitchen. According to her, by standing on the road, her kitchen and verandah were visible. She has further stated that half an hour after the incident her mother came back and at about 1 p.m. her father also turned up and then at about 2.30 p.m. she went to the police station and lodged the report. She has clarified that the report was lodged by her and not by her parents, that so many documents were prepared by the police, that she was sent for medical examination and that in the report she has made the allegation against all the three accused/appellants. She has stated that her case diary statement was recorded on the same day and that in the FIR and case diary statement she had disclosed all the facts and if something could not be recorded in the same, she cannot tell the reason for that. In paragraphs 16 to 18 of her deposition, there appear to be certain contradictions. She has stated that in the identification proceedings in the Tehsil office 5-6 persons were mixed and she identified accused/appellant Mohit out of them. She has stated that accused/appellant Mohit used to visit her locality. In further paragraphs also she has stated that she had disclosed each and everything to the police but she cannot tell the reason if they are not recorded in her statement. According to her, she was subjected to rape for about 10 minutes. In paragraph 26 she has denied that she lodged a false report against the accused/appellants due to the inimical relations between her family and that of accused/appellant No. 1. In paragraph 27 she has again denied that a false report was lodged by her on account of family members of accused/appellant Tara Chand using their courtyard as passage by jumping over the boundary wall.

Kailash Patel (PW-2) has stated in his evidence that on the date of incident the mother of the prosecutrix was working in his house whereas her father was working in some other house. He has stated that after coming to know about the incident through her mother, 7-8 persons had gone to her house and then the report was lodged. He has stated that prosecutrix informed everyone that she was subjected to rape by accused/appellant No. 1 Kushwa assisted by other accused/appellants. According to him, prosecutrix also informed him that she was subjected to rape while she was lying on the cot. Sarju (PW-3) is the witness who had accompanied the prosecutrix and her father to the police station for lodging the report, and in whose presence clothes of the prosecutrix were seized. According to him, he was informed by father of the prosecutrix that she was subjected to rape by the accused/appellants. Pitamber (PW-4) - the father of the prosecutrix has supported the case of the prosecution and stated that on the date of incident when he came back to his house, he was informed by his wife Kunti about the entire incident. Thereafter, according to him, the prosecutrix also narrated the entire incident to him and then he called the people of the neighbourhood and went to the police station to lodge the report. He is also the witness to seizure of articles made under Ex. P-5 to P-8. In paragraph 6 of his evidence, he has stated that initially the report was not registered by the police and he was told that on his report no action could be taken and then the report was lodged by the prosecutrix herself. This witness has also admitted that there was some dispute between him and family members of accused Tara Chand on account of use of path leading to the house of accused Tara Chand. He has however denied that a false report has been lodged by the prosecutrix on account of said dispute between them. Sarla Thokne (PW-5) is the head mistress of the school who has proved the age of the prosecutrix. According to her, date of birth of the prosecutrix is 7-8-1988 and if that date is accepted, her age on the date of incident comes to about 19 years. Kriparam Diwan (PW-6) is the Patwari who prepared spot map Ex. P-3. He has stated that verandah was open and no hurdle was there. Dr. Snehlata Humne (PW-7) is the witness who medically examined the prosecutrix and gave her report Ex. P-12 stating that she was subjected to sexual intercourse and her vagina easily admitted one finger. Dr. A. K. Humne (PW-8) is the witness who medically examined accused/appellant Shiv Kumar and stated that he was capable of performing sexual intercourse. This witness also examined the clothes of this accused and found certain spots thereon. B. B. Panchbhai (PW-9) is the Naib Tehsildar who conducted test identification parade vide Ex. P-15 has stated that prosecutrix identified accused/appellant No. 3 Mohit. He has stated that number of persons in the age group of 18, 20 and 28 years were mixed. This witness has admitted that in the said identification memo Ex. P-15, he has not obtained the signatures of the prosecutrix or the persons who were mixed and also that of accused/appellant Mohit. Trilochan Sahu (PW-10), Dhanesh Ram Sahu (PW-11) and Bhagwat Kanwar (PW-12) are the police constables who have rendered their assistance during the course of investigation. Station House Officer namely Vijay Katre (PW-13) is the witness who recorded FIR Ex. P-1 and did part of the investigation. Assistant Sub Inspector namely Vinod Singh Thakur (PW-14) is the witness who took the investigation ahead has duly supported the case of the prosecution.

Thorough examination of the material available on record including the evidence adduced by the prosecution makes it apparent that on the date of incident when the prosecutrix was all alone in her house, the accused/appellants gained an entry thereto and on seeing when she tried to raise her voice accused/appellant Tarachand pressed her mouth first by hand and then inserted handkerchief into her mouth. Thereafter, accused/appellant Mohit tied both of her hands and then accused/appellant Kushwa removed her clothes and committed forcible sexual intercourse with her. Evidence further makes it clear that after her mother and father got back home, she narrated the entire incident to them and then the report was lodged by her. This Court does not find any force in the argument of the counsel for the appellants that place of incident was visible from the road and therefore no such incident is possible. Though the place of incident was visible from the road but no one could see the incident because as per the Nazri Naksa Ex. P-18 the place of incident was visible from the road only at a particular angle and not at every angle. Moreover, the people passing through the road are not supposed to see the activities going on in the houses situated beside the road unless something worth attracting their attention is perceived by them. That apart, as mouth of the prosecutrix was gagged by the accused/appellant, she could not raise her cries and therefore question of attracting the attention of the passers by does not arise. Evidence of the prosecutrix further reveals that in the identification parade she had identified accused Mohit to be the person who was beating her with club while demanding key of the house and as regards other two accused/appellants she has clearly stated in the FIR itself that she knew them as they were the residents of same locality. Medical evidence also supports the prosecution case as the doctor who medically examined the prosecutrix has stated that she was subjected to sexual intercourse. As regards the plea of false implication, the defence has not brought anything on record so as to substantiate the same and therefore this Court does not find any reason to accept that the accused/appellants have been falsely implicated at the hands of the prosecutrix. Though the witnesses have admitted the existence of some old dispute between the two families yet they have categorically denied that the accused/appellants have been falsely implicated in the case. Evidence of the prosecutrix stating the incident of rape by accused/appellant No. 1 Shiv Kumar alias Kushwa Nishad which was facilitated by accused/appellant Nos. 2 and 3 namely Tarachand and Mohit respectively, being very specific is quite trustworthy and inspires full confidence of this Court. The judgments taken support of by the counsel for the appellants referred to above are in relation to different facts and therefore they are of no help to the accused/appellants herein. The view taken by the Court below convicting and sentencing the accused/appellants as mentioned above being in conformity of the evidence available on record, does not require any interference by this Court. Appeal, therefore, being without substance is liable to be dismissed and is hereby dismissed. As the accused/appellants are already in jail, no order regarding their surrender etc. is necessary.