ii :.!:.:;;iiit;^l.,l-t,B)!*t HIGH COURT OF PHHATTISGARH AT BILASPUR SB: HON'BLE SMRI R.N.CHANDRAKAR., J CriniinalADDeal No. 80of2001 Appellant Ramlal Respondent Vs. The Stateof Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMENT Sd/- JUDGE 1 -12-2009 Sd/- R.N. Chandrakar Judge I.;.'--. 3,Syft'"- _Y <- i |};:1-;ii; .,ytss*^i ^!f Appellant HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 80 QL2001 \ Ramlal S/o. Nakul by Caste Gond, aged about 23 years, resident of Biringpal, Thana Frezarpur, Distt. Bastar. Versus ResRondent The State of Chhattisgarh through the District Magistrate, Bastar at Jagdalppur. Criminal aRpeal y/S. 374 (2) of the-Criminal Procedure Code (SB: Hon'ble^n/lr.^anganath Chandrakar, J. Present: Shri N.P.Kostha, counsel for the appellant. Shri Akhil Agrawal, Panel Lawyer fortheState. JUDGMENT SJ^d' (Delivered on this day of December, 2009) This appeal is directed against the judgment dated 20-12-2000 passed by 3 Additional Sessions Judge, Bastar at Jagdalpur (CG) in Sessions Trial No. 383 of 2000 convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5000/-, in default of payment of fine to further undergo R.l. for one year. — 2) Facts of the case, in brief, are that FIR (Ex.P/1) was lodged on 31-7- 2000 in Police Station - Frezarpur by Surajbati prosecutrix (PW/1) alleging that before one year from the date of lodging the report when the prosecutrix namely Surajbati (PW/1) aged about 19 yearswas working in the field, the appellant came there and committedrape on her. When the prosecutrix Surajbati told him that she would report the matter to Police Station, the appellant convinced her on the assurance of marriage. Thereafter, the appellant regularly had 'E3CT3B ^^;.t%;^ t y^'' v-^:~. ~f'"y 'S^ff'^i'- 'i^fc^^^-j sexual intercourse with the prosecutrix as a result of which she became pregnant. Thereafter,. a Panchayat meeting was convened in the village in which the appellant accepted the allegation alleged against him and took her with him to his house. During this period, mother of the appellant started making efforts for his marriage. Therefore, prosecutrix Surajbati left for her maternal house and panchayat rrieeting wasagain held in which the appellant gave in wrifing that he would take her with him. Thereafter, the prosecutrix delivered a child who died and again village panchayat was held in which also the accused appellant gave in writing that he would marry the prosecutrix. At last, the appellant did not marry the prosecutrix Surajbati. Therefore, the prosecutrix lodged the report against him on 31-7-2000 at Police Station, Frazerpur on the basis of which crime was registered under Section 376 of the IPC vide F.1.R. (Ex.P/1) and the matterwas investigated. (3) After completion of usua1 investigation, charge sheet was filed in the competent Court which in turn committed the case to the Sessions Court from where the case was receivedon transfer by 3 Additional Sessions Judge, Bastar at Jagdalpur who framed charge against the accused/appellant under Sections 376 of the IPC. The accused abjured the guilt. The learned trial Judge after due trial convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. (4) Learned counsel appearing for the appellant submits that the impugned order is illegal, unwarranted and against the requirement of law and procedure which cannot be sustained in the eyes of law. He further submits that court below haswrongly come to conclusion about the guilt of the appellant, whereas the prosecutrix was a consenting party and FIR was lodged after one year of the date of incident. The prosecution failed to prove its case beyond reasonable doubt and the trial Court passed the judgment of conviction, despite there being conjecture and surmises which is bad in law. Learned counsel lastly 'fSif'^"'' t'^^s^^-^ submits that considering all the facts and circumstances, the instant appeal deserves to be allowed, the judgment of the trial Court be set aside and the appellant be acquitted ofthe chaYge. 5) Per contra, learned counse] appearing for the respondent/State argued the case in support ofthe impugned judgment ofthe trial court. 6) Having heard learned.counsel forthe parties, 1 have perused the records ofthe trial court and also the impugnedjudgment. 7) The prosecution in orderto prove the guilt against the accused/appellant, examined seven witnesses. 8) It is undisputed that the age of the prosecutrix was more than 16 years at the time of incident as is clear from the FIR as wel] as the mark sheet (Ex.P/4). Thus, the only question which remains to be considered in this case is whether the prosecutrix was a consenting party or not. On this point the evidence of the prosecutrix, Sahadev (PW/4) and Somaru (PW/5) are relevant. 9) PW/1 Surajbati, the prosecutrix stated in her deposition that on the date of incident, when she had goneto the field to do her work, the accused/appellant came there and forcibly committed rape on her. When she told him that she would report the matter to Police Station, the appellant convinced her on the assurance of marriage but did not marry her. Thereafter, the appellant had sexual intercourse with her regularly. The panchayat meeting was convened in the village in which the appellant gavein writing that he would marry her but he did not marry her. She further stated that as the appellant did not marry her, she lodged the report (Ex.P/1) against the accused/appellant at Police Station Frezarpur. In her cross examination the prosecutrix admitted that she disclosed the incident to her parents for the first time when she was carrying seven months pregnancy. She also admitted that if theappellant had accepted her as his wife, she would nothave lodged the l)lli"'l "ll"i;r ~1 's':'';:'!:iWB!sS81fe ; ffit<v.S'.&n.'i^.ff report against him. She further admitted that she was not willing to live with the appellant and the report was lodged against him because the incident was disclosed to her father. On perusal of the FIR and diary statement of the prosecutrix it is clear that there are material contradictions and omissions in her statements made before the police and the court. It is alsoapparent from the FIR that there was love affair befween the appellant and the prosecutrix and she narrated the incident to her parents only after seven months of pregnancy. Thus, on evaluation of her evidence, the prosecutrix appears to be a consenting party and the FIR was lodged belatedly afterabout one year. 10) In view of the testimony of the prosecutrix, if the evidence of PW/4 Sahadev, the brother of the prosecutrix and PW/5 Somaru, father of the prosecutrix are scrutinized, it is clear that PW/4 Sahadev has clearly admitted in his deposition that the appellant and the prosecutrix both were studying together in Class Xth and there was love affair between them. The incident was disclosed by the prosecutrix for the first time, only after she became pregnant and thereafter a Panchayat meeting was convened in the village in which the appellant admitted that the pregnancy was caused by him. He admitted that the document Ex.P/7 executed before the Panchayat regarding the relation between the appellant and the prosecutrix in which the appellant admitted to keep the prosecutrix with him after delivery. 11) PW/5 Somaru, the father of the prosecutrix also corroborated the version of PW/4 Sahadev and deposed the same thing. In his cross examination he clearly and categorically admitted in para 5 that when a boy of village Biringpal came to see his daughter (prosecutrix) for marriage purpose, she disclosed about the incident tb him for the first time and expressed her wish that she did not want to marry any other person, except theappellant. Prior to this, nothing was disclosed to him by .her. In para six he further admitted thatafter the decision of the Panchayat, the prosecutrix was living with the appellant as his ;i3iaiEii, •adiit, 1 Oi'iiK wife. He admitted the fact to be true that the prosecutrix left the house of the appellant due to excess of work and came back to her maternal house. 12) On reappraisal of the evidence of the prosecutrix, her brother Sahadev (PW/4) and her father Somaru (PW/5), it is clear that there was love affair between the appellant and the prosecutrix. The incident was disclosed only after she became pregnant which is also clear from the document (Ex.P/7) executed before the Panchayat. It is also apparent from the deposifion of Somaru that the report against the appellant wou'd not have been lodged if the appellant had kept the prosecutrix as.his Wife. This fact is also corroborated by PW/2 Sudururam who was a member of the Panchayat meeting. Further, the love affair between the prosecutrix and the appellant is also established by PW/3 Aayaturam, the real uncle of the prosecutrix. He was also a member of the said panchayat who categorically stated in para 3 that it was admitted by the prosecutrix before the Panchayat that she w'as carrying pregnancy due to her love affair with the appellant.Jt was also admitted by Aayatu Ram that the incident was disclosed before the panchayat for the first time. 13) PW/7 G.S. Kesariya, Asst. Sub Inspector deposed that on 31-7-2000 he registered the FIR (Ex.P/1), seized the mark sheet of the prosecutrix vide Ex.,P/4, wearing apparels of the prosecutrix vide Ex.P/5, prepared spot map vide Ex.P/8 and sent the prosecutrix for medical examination vide Ex.P/10. In his cross examination, he admitted that the FIR was lodged belatedly, after the meeting was held in village. On perusal ofthe FIR, it is clear that the FIR was registered on the basis of written report submitted by the prosecutrix in which the prosecutrix admitted her love affair with the appellant(as the contents of the written report are mentioned in the FIR) but the same is not on record. On the other hand Doctor (Smt) Shanti Pandey (PW/6) who examined the prosecutrix, found no sign of injury on the body of Ku. Surajbati, the prosecutrix. ;'^^ !''?"®iS-. ^ She gave her report vide Ex.P/7-A wherein it has been stated that the prosecutrix was accustomed to sexual intercourse. \ 14) Learned counsel for the appellant submits that present is a clear case of consent where the prosecutrix ha.d permitted the appellant to have physical relations with her. He submits that from the statement of the prosecutrix it is clear that she has not made any attempt to save herself from the clutches of the accused/appellant. He has referred to para 6 of the evidence of the prosecutrix, literal translation of the relevant portion thereof reads as under: "Ifthe appellant keeps me as his wife, she would not have lodged the FIR against him" 15) In any case, if the rape was committed by the appellant much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that after the first incident the appellant continued to have sexual intercourse with her which was not resisted by her due to which she became pregnant and the alleged incident of rape was disclosed after seven months of pregnaney. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance. Above all, the version given by her in the court is at variance with the version set out in the FIR. As already noticed, she categorically stated in the first information report that there was love affair between her and the appellant and she "surrendered before him" in view of his repeated promises to marry. In short, her version about the first incident of rape bristleswith improbabilities.improvements and exaggerations. It is a different matter that she became a consenting party under the impact of his promise to marry her. Thus, it is not safe to lend credence to the version of PW/1 , the prosecutrix that shewas subjected to rapeagainst her will in the first instance even before the appellant held out the promise to marry. The finding of the trial court that the prosecutrix was raped forcibly against her will is notsustainable. ll1!^" w!r <-44-7 It is also clear that the incident had taken place one year before lodging the report, thus there is inordinate delay on the part of the prosecutrix in lodging the report which has not been satisfactorily explained. 16) Learned counsel for the appellant in support of his arguments, placed reliance on the decision of Hon'ble the Supreme Court in the matter of Pradeep Kumar Verma v. State of Bihar and another reported in2007 AIR SCW 5532 wherein it has been observed as under: "If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the vary inception the accused never really intended to marry her. 17) Learned counsel for the appellant also placed reliance on the decision of Madhya Pradesh High Court in the matter of Jamnalal alias Chimman Dhimar v. State of M.P^ reported in 2002 [2] WIPLJ 169 in which it has been held as under: "Prosecuthx more than 16 years of age indulged in sexual intercourse with accused on the date of incident and two-three times thereafter - FIR lodged after noticing pregnancy of five months, her being tight lipped forfive months was indicative ofherbeing in flagrante-delicto - Conviction under section 376, Indian Penal Code set aside." 18) On evaluation of the testimony of the prosecutrix it is crystal clear that the accused had sexual relationship with her several times which was not protested by her. It is also admitted that initially she did not disclose about the incident to her parents, but the matter was disclosed to her parents only after she became pregnant. The report was lodged after one year from the date on which she was allegedly raped by the appellant. However, if the rape was 1. ai£ Raj|u- committed by the accused much against her will, she wbuld not have volunteered tosubmit to hiswish subsequent to the alleged first incident of rape. She admitted in paragrap'h 6 of her evidence that "If the accused had kept her as his wife, she would not have lodged the report". Thus.considering all the facts and cireumstances of the case, it is apparent that the prosecutrix was major being aged about 19 years'at the time of incident and not only she was a consenting party butwas w^ll aware ofthe consequence also. 19) Thus, looking to entire fflat^tial made available before this court, considering the unexplained inordinate delay in lodging the FIR, most importantly the overall conduct ofthe prosecutrix as has been discussed above in detail and applying the well settled principles of law to the facts of the present case, 1 am of the view that the learned trial Court erred in convicting the appellant for the offence punishable under Sections 376 of the IPC. In the opinion of thiscourt, no chargeagainst the appellant has been proved atall. 20) Accordingly, the appeal is allowed. The impugned judgment is set aside. Accused/appellant is acquitted of the charge leveled againsthim. He shall beset atlibertyforthwith, ifnot required in any other case. The appellant is on bail. 1-lis bail bondsshall stand discharged. The ambunt of fine, if deposited, be refunded to him. __ R.N. Chandrakar Judge ';H^mH^1Ti?Ti^T?%F^^s^~FE^:l^af^^^B^^^^^