State Of Chhattisgarh vs Vijay Kumar

This acquittal appeal has been preferred by the appellant/State against the judgment dated 25.11.2011 passed by the learned First Additional Sessions Judge, Durg, District Durg, (C.G.) in Sessions Trial No.53 of 2010 whereby respondent No.1 Vijay Kumar has been acquitted of the charge punishable under Section 376 of the Indian Penal Code, 1860 (in short ‘IPC’) and respondent No.2 Sundarlal has been acquitted of the charge punishable under Section 376/107 of the IPC.

Brief facts for disposal of this appeal, are that, prosecutrix, who was daughter of Somnath (PW-2), aged about 17 years, was a resident of village Raveli. On 10.02.2010, at about 8:00 PM, she went from her old house to new house. When she reached near canal drain, accused Vijay Kumar and Sundarlal were met with her. Accused Sundarlal asked the prosecutrix for taking with Vijay and when she refused, accused Vijay caught hold the hand of prosecutrix, forcibly dragged her to Bhatha and raped her. After the incident, prosecutrix went to her home and told her grandmother Paragobai and stepmother Hunita Bai (PW-5) about the incident. When prosecutrix’s father Somnath (PW-2), who had gone to Nagpur, came to his house, prosecutrix narrated the incident to him and lodged the complaint vide Ex.P/1, on the basis of which, First Information Report (Ex.P/2) was registered bearing Crime No.26 of 2010 at Police Station Patan for the offence punishable under Sections 363, 366, 376 (2)(g) of the IPC. An action was taken to obtain medical and chemical opinion by confiscating the personal clothes and underwear of prosecutrix as well as accused persons, respectively vide Exs.P/4, P/7 & P/8. Spot map (Ex.P/10) was prepared and school admission register of prosecutrix [Ex.P/17(c)] regarding her age was seized. The accused were arrested on 15/02/2010. The statements of Paragobai, Hunita Bai (PW-5) and Ramesh (PW-4) were recorded and after completion of investigation, charge-sheet was filed against the accused persons.

After appreciating the oral as well as documentary evidence on record, learned trial Court found that prosecution has failed to prove its case beyond reasonable doubt and by the impugned judgment dated 25.11.2011, acquitted the accused/respondents for the aforesaid charges. Hence, this appeal has been filed by the State.

The  learned  State  counsel  submits  that  impugned  judgment  of acquittal is contrary to the law facts and circumstances of the case and thus, liable to be set aside and the respondents deserves to be convicted and sentenced to the full term provided. He next submits that learned trial Court failed to appreciate the evidence recorded in the case from a true and correct perspective. The learned trial Court has failed to appreciate the fact that prosecution has proved its story beyond all reasonable doubt. It is contended that all the prosecution witnesses stated against the respondents but trial Court on minor contradictions and omissions disbelieved the statement of witnesses. It is further contended that learned trial Court while passing impugned judgment, overlooked the material produced by prosecution and wrongly acquitted the respondents/accused persons. He argued that trial Court has misappropriated the evidence on record and arrived at an erroneous findings. He further argued that learned trial Court did not evaluate the evidence, which were available on record for convicting the respondents under the aforesaid offences, therefore, findings of acquittal is totally perverse and is liable to be set-aside.

Per contra, learned counsel for the respondents supported the impugned judgment of acquittal and submits that prosecution witnesses utterly failed to prove its case beyond reasonable doubt. Hence, after evaluating the entire evidence, has rightly acquitted the respondents for aforementioned charges levelled against them.

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

On the basis of evidence of prosecutrix (PW-1) and documentary evidence, learned trial Court has determined the date of birth of prosecutrix was 12.07.1992, i.e. 17 years on the date of incident 12.02.2010. The said age determination has not been challenged by the defence.

The accused were acquitted by learned trial Court on the ground that prosecutrix was found to be in agreement with evidence produced. In the judgment of acquittal, learned trial Court has concluded that sexual intercourse had taken place with prosecutrix and human sperms have been found in vaginal slides as well as underwear.

The incident occurred on 12.02.2010. Before amendment in Indian Penal Code in the year 2013, rape is defined under Section 375 of the IPC, which reads as follows :

“375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First. - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. - With or without her consent, when she is under sixteen years of age.”

In  the  above  situation,  when  the  age  of  prosecutrix  has  been determined to be 17 years at the time of incident, then as per provision made in 6th paragraph of above Section 375 of the IPC, it remains to be seen whether prosecutrix was a consenting party or not because her age has been recorded above 17 years.

In this context, looking to the entire evidence, it is noteworthy that prosecutrix has proved the prosecution case against the accused in her examination-in-chief. But, she has stated to narrate the incident to her stepmother (PW-5) and grandmother after reaching home at night, grandmother has not been examined before the Court and stepmother (PW-5) has not supported the fact that prosecutrix was giving her information about the incident in the night of incident. It is also noteworthy that father was stated to be away at the time of incident and when her father was returned after two days, a report was lodged on 14.02.2010.

If I consider all the points, it is clear from the evidence that there were houses of about 10 to 12 people between the place from where accused Vijay had raped the prosecutrix by pulling her hands and taking her to another place, which includes the house of her uncle. But in her Court statement, she has admitted that she did not scream when accused Vijay took her away by holding her hands ,whereas he had taken her for a long distance. She has mentioned about shouting at the spot, but there is no mention of her shouting in First Information Report (Ex.P/2). Due to forceful incident, she was subjected to suffer injuries on her left elbow, leg, back, head and thigh, but the said fact was not corroborated by medical evidence. The medical examination report of prosecutrix was marked as Ex.P/22, but statement of doctor, who conducted the examination, has not been recorded. The said document was accepted by accused Vijay and according to medical report, no definite opinion was given by doctor that forcible sexual intercourse was done with prosecutrix.

It is significant that prosecutrix has admitted in her statement that she has known to accused Vijay since childhood, who is from the same village and with whom, she kept talking, who runs a tent house business. She further admitted that she had gone to Dongargarh once with her father, neighbours and Vijay, where she clicked photographs with him. Thus, his association with accused Vijay is revealed. The fact that accused had committed forcible sexual intercourse is not corroborated by medical evidence as no torn clothes have been seized, accused Vijay dragged her by holding her hands for a long distance at the spot of incident where many people have houses nearby and she was not shouted in defence, there is no mention of shouting in First Information Report, she narrated the incident to her stepmother on reaching home after the incident is not confirmed by her stepmother's statement, grandmother has not been examined and report of the incident was lodged after two days.

In the above facts and circumstances of the case, learned trial Court has well thought out that prosecutrix was a consenting party.

The Hon’ble Supreme Court in case of Muralidhar alias Gidda and Another v. State of Karnataka, (2014) 5 SCC 730, has held that if two views are possible, the appellate Court should not interfere with the judgment of acquittal, even otherwise, the prosecution, thus utterly failed in proving its case beyond reasonable doubt.

Applying the aforesaid legal proposition in the present case as well, it is quite vivid that the prosecution had to prove the case against the respondents beyond all reasonable doubt, but the prosecution has failed to do the same. The finding recorded by the learned trial Court acquitting the respondents of the aforesaid charges is based on the material available on record, which is neither perverse nor contrary to the record. As such, this Court finds no illegality in the impugned judgment acquitting the respondents of the aforesaid charges levelled against them, particularly when there is a settled legal position that if on the basis of record, two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution has utterly failed to prove its case beyond reasonable doubt and the trial Court is fully justified in recording the finding of acquittal, which is based on proper appreciation of evidence available on record. Furthermore, in case of appeal against the acquittal, the scope is very limited and interference can only be drawn if finding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and considering the irrelevant ones. In the case at hand, no such circumstance is there warranting interference by this Court.

The acquittal appeal being bereft of any substance, is liable to be and is hereby dismissed.