Vinod Alias Pappu vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 31-8-2004 passed by 3rd Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 64/2004. By the impugned judgment, accused/appellant Vinod alias Pappu has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

On 14-1-2004, the husband of prosecutrix (PW-1) Lutharu (PW-3) had gone to Village Baghanpal. At about 9 P.M., prosecutrix (PW-1) and her mother-in-law Sanmati (PW-2) were in their house. At that time, the appellant entered the house of prosecutrix (PW-1) and asked her for water. Prosecutrix (PW-1) gave him water. Thereafter, the appellant caught hand of prosecutrix (PW-1), dragged her inside the room and caused her to fall down. Prosecutrix (PW-1) sustained injury on her forehead. Prosecutrix (PW-1) shouted for help. The appellant pressed her neck. Therefore, prosecutrix (PW-1) could not raise alarm and the appellant committed sexual intercourse with her. Having heard her noise, Sanmati (PW-2) came there. The appellant fled from there. Sanmati (PW-2) caught collar of the appellant while he was fleeing. The appellant extricated his collar, pushed away Sanmati (PW-2), caused her to fall down and fled from there. On 16-1-2004, Lutharu (PW-3) returned home from Village Baghanpal. Prosecutrix (PW-1) narrated him the incident. Prosecutrix (PW-1) also narrated the incident to villagers Sukhdeo (PW-6) and Butharu (PW-4). Thereafter, prosecutrix (PW-1) lodged First Information Report (Ex. P-9) in Police Station Lohandiguda. Prosecutrix (PW-1) was sent to Maharani Hospital, Jagdalpur for medical examination vide Ex. P-12. Dr. Smt. Shanti Pandey (PW-8) examined prosecutrix (PW-1) and gave her report (Ex. P-16). She also prepared two slides of vaginal swab of prosecutrix (PW-1). The appellant was also sent to Community Health Centre, Lohandiguda for medical examination. Dr. R.K. Nag (PW-5) examined the appellant and gave his report (Ex. P-6), in which, he found that the appellant was capable of committing sexual intercourse.

In further investigation, slides, petticoat and clothes of prosecutrix (PW-1) were seized vide Ex. P-4. Underwear of the appellant was seized vide Ex. P-5. Site-Map (Ex. P-10) was prepared. The appellant was arrested vide Ex. P-13.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Jagdalpur, who, in turn, committed the case to the Court of Session, Bastar at Jagdalpur, from where it was received on transfer by 3rd Additional Sessions Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Subhash Yadav, learned counsel for the appellant argued that the FIR (Ex. P-9) was lodged belatedly. Prima facie, it appears to be a case of consent. He further argued that the judgment being not in consonance with the material available on record is liable to be set aside. The medical report of prosecutrix (PW-1) does not support the case of the prosecution and the statement of prosecutrix (PW-1) also appears to be very improbable. Therefore, the evidence of prosecutrix (PW-1) cannot be reliable. Hence, the conviction cannot be based on the testimony of prosecutrix (PW-1) and the appellant deserves acquittal.

On the other hand, Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 64/2004.

I shall first consider whether lodging of the FIR (Ex. P-9) was belated and it is fatal to the case of the prosecution?

Prosecutrix (PW-1) deposed that on the date of incident, her husband Lutharu (PW-3) had gone to Village Baghanpal. She was in her house along with her mother-in-law Sanmati (PW-2). At about 9 P.M., she was causing her children to sleep. The appellant pushed the door of her house and entered the house. He asked her for water. She gave him water. After bringing the water, the appellant caught her hand, caused her to fall down and committed rape with her. She raised alarm. Having heard her noise, her mother-in-law Sanmati (PW-2) came there and caught collar of the appellant while he was fleeing. The appellant extricated his collar, pushed away Sanmati (PW-2), caused her to fall down and fled from there. She further deposed that when her husband Lutharu (PW-3) returned home, she narrated him the incident and lodged FIR (Ex. P-9) in Police Station Lohandiguda. Lutharu (PW-3) also deposed that he had gone to Village Baghanpal. He returned home on Friday at noon. His wife prosecutrix (PW-1) told him that the appellant came to their house and committed sexual intercourse with her. He further deposed that they went to Police Station Lohandiguda for lodging report. The police did not lodge report and asked them to come on the next day. They again went to Police Station Lohandiguda on the next day and prosecutrix (PW-1) lodged the FIR (Ex. P-9).

The date and time of the incident was 14-1-2004 at about 9 P.M. The FIR (Ex. P-9) was lodged on 17-1-2004 at about 11:30 A.M. Lutharu (PW-3) specifically deposed that he returned home on Friday at noon. The day of the incident was Wednesday and the FIR (Ex. P-9) was lodged on 17-1-2004. Lutharu (PW-3) specifically deposed that prosecutrix (PW-1) narrated him the incident, they went to Police Station Lohandiguda for lodging report but the police asked them to come on the next day. They again went to Police Station Lohandiguda on the next day. In the FIR (Ex. P-9), the reason of delay in lodging the FIR is mentioned as under--

Looking to the evidence of prosecutrix (PW-1) and Lutharu (PW-3) and the reason of delay in lodging the FIR (Ex. P-9), it appears that the prosecution has offered proper explanation for the delay in lodging the FIR (Ex. P-9). Therefore, the delay in lodging the FIR is not fatal to the case of the prosecution.

Now, I shall examine whether the evidence of prosecutrix (PW-1) is reliable and can be based for conviction?

It is trite law that a woman, who is a victim of sexual assault, is not an accomplice of the crime but is a victim of another person''s lust. The prosecutrix stands at a higher pedestal than the injured witness as she suffers very emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice and if the statement of the prosecutrix is found to be worthy of credence and reliable, it requires no corroboration and the Court may convict the accused on the sole testimony of the prosecutrix.

Prosecutrix (PW-1) deposed that on the date of incident, her husband Lutharu (PW-3) had gone to Village Baghanpal. She was in her house along with her mother-in-law Sanmati (PW-2). At about 9 P.M., she was causing her children to sleep. The appellant pushed the door of her house and entered the house. He asked her for water. She gave him water. After bringing the water, the appellant caught her hand, caused her to fall down and committed rape with her. She raised alarm. Having heard her noise, her mother-in-law Sanmati (PW-2) came there and caught collar of the appellant while he was fleeing. The appellant extricated his collar, pushed away Sanmati (PW-2), caused her to fall down and fled from there. She further deposed that when her husband Lutharu (PW-3) returned home, she narrated him the incident and lodged FIR (Ex. P-9) in Police Station Lohandiguda. Lutharu (PW-3) also deposed that he had gone to Village Baghanpal. He returned home on Friday at noon. His wife prosecutrix (PW-1) told him that the appellant came to their house and committed sexual intercourse with her. He further deposed that they went to Police Station Lohandiguda for lodging report. The police did not lodge report and asked them to come on the next day. They again went to Police Station Lohandiguda on the next day and prosecutrix (PW-1) lodged the FIR (Ex. P-9).

Prosecutrix (PW-1) deposed that she did not disclose the incident to anybody in the villager even on the next day. Her husband had two brothers, namely, Sutharu (not examined) and Butharu (PW-4). Sutharu is her Devar (brother-in-law) and Butharu (PW-4) is her Jeth (brother-in-law). Both are married. It is true that her Jeth had come to her house on the next day.

Sanmati (PW-2) deposed that prosecutrix (PW-1) is her daughter-in-law (Baku). Prosecutrix (PW-1) told her that the appellant had caught her hand and dragged her. Sanmati (PW-2) did not depose about committing of rape or sexual intercourse by the appellant with prosecutrix (PW-1). In cross-examination, she deposed that on the date of incident, her elder son Butharu (PW-4) was present in the house. Her both daughters-in-law, i.e., wife of Butharu (PW-4) and Sutharu were also present in the house. She did not know who had come in the night.

Prosecutrix (PW-1) deposed that she was sent to hospital for medical examination. Dr. Smt. Shanti Pandey (PW-8) examined her and gave her report (Ex. P-16). She further deposed that Dr. Smt. Shanti Pandey (PW-8) did not find any abrasion or external injury on her body. Only one abrasion was present near right eye. Except this injury, no other injury was found on her body. Dr. Smt. Shanti Pandey (PW-8) did not find any evidence of forceful intercourse.

Looking to the evidence of prosecutrix (PW-1), it is established that her mother-in-law Sanmati (PW-2) was present in the house. Sanmati (PW-2) did not support the case of the prosecution. Had prosecutrix (PW-1) raised alarm, Sanmati (PW-2) and her sisters-in-law (Jethani and Devrani) would have heard her shout and come to her for her help. Sanmati (PW-2) specifically deposed that her both daughters-in-law were present in the house, but the prosecution did not examine them. Brother of Lutharu (PW-3) was also present in the house. Had any forcible sexual intercourse committed by the appellant with prosecutrix (PW-1) and had she raised alarm, brother of Lutharu (PW-3) would have also heard shout of prosecutrix (PW-1).

Looking to the evidence of prosecutrix (PW-1), it appears that the appellant caught her hand, caused her to fall down on the floor and thereafter committed sexual intercourse with her. In such a circumstance, prosecutrix (PW-1) would have sustained some injuries on her body, but medical evidence does not support the case of the prosecution. The evidence of prosecutrix (PW-1) goes to show that prosecutrix (PW-1) had sufficient opportunity to come out of clutches of the appellant and raise alarm for help. She did not make any such effort. Even she did not attempt to scratch the appellant or push him away.

The evidence of prosecutrix (PW-1) clearly goes to show that she was a consenting party to the sexual intercourse. Therefore, the evidence of prosecutrix (PW-1) cannot be based for conviction of the appellant.

On the basis of aforesaid discussion, I am of the view that the trial Court committed an error in convicting and sentencing the appellant for the offences under Sections 457 and 376 of the Indian Penal Code. Hence, the impugned judgment of conviction and sentence is not sustainable. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 457 and 376 of the Indian Penal Code are set aside. He is acquitted of the charges framed thereunder. He is on bail. His bail bonds are cancelled and sureties stand discharged.