tiittiTTfM I^Jk/^/i IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.^ CRIMINAL APPEAL N0. 36 /2009 APPELLANT :^ (InJail) ''\6 VW^'' ^^2" \^9 ^ 1 V^ .••' ^°' ^\ ^- ,/^ y^\ ^'^ A^ 1 >^' ^" y ^>'" ^ RESPONDENT Pradeep Mandavi S/o. Late Narsingh Mandavi, aged about 24 years, Resident of Village Chichmarra, P.S. Bhanuprar^appur, District Uttar Bastar, Kanker (C.G.) VERSUS State of Chhattisgarh, Through : Police Station- Bhanu- Pratappur, District-Uttar Bastar, Kanker(C.G.) MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374^1 OF CRIMINAL PROCEDURE CODE HIGH COURT OF CHHATTISGARHAT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 36 of 2009 APPELLANT Pradeep Mandavi. VERSUS RESPONDENT Stateof Chhattisgarh. Post for pronouncement ofjudgment on j^.11.2009. Sd/- Pridnker Diwaker Judge » .1—^~ ^- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr.Justice Pritinker Diwaker) Criminal Appeal No. 36 of 2009 APPELLANT Pradeep Mandavi. VERSUS RESPONDENT State of Chhattisgarh. Shri Vishnu Koshtacounsel for the appellant. Shri Pankaj Shrivastava PL for the respondenVState. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (f3.11.2009) This appeal is directed against judgment dated 6.1.2009 passed by Additional Sessions Judge (FTC) Bhanupratappur in Sessions Trial No. 145/2007 convicting the appelfant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo Rl for one year. 2. Facts of the case in brief are that FIR (Ex. P-3) was lodged on 5.10.2006 by the prosecutrix (PW-2) aged more than 16 years alleging that in the month of May 2006 at about 10 p.m. when she was returning from the house of the accused/appellant after watching TV, he came there and caught hold of her hand and took her to a Kothar of one Johan which was near her house and despite /- her resistance he committed forcible sexual intercourse with her after putting her under threat of life. It is alleged that after committing | the rape, he had assured of marrying her and she would not have | any problem and if any problem was there, he would take the responsibility. it is further alleged that when in the month of June, 2006, she did not have the period; she went to the hospital where she wasinformed by the nurse that she was pregnant. The fact of lsl;.» «; ^ —2-- <r- l pregnancy was disclosed by the prosecutrix to the appellant and then it is alleged that he gave her threat of killing her with knife. Thereafter, the prosecutrix returned to her house. It is alleged that after some time maternal aunt of the prosecutrix namely Malti (PW-9) came to her and gave some herbs saying the same to have been sent by the accused/appellant. It is alleged that the prosecutrix disclosed this fact to her mother Devki Bai (PW-3). On 30.9.2006 a village meeting was called but the appellant did not attend the said meeting and therefore the meeting was fixed on 1.10.2006 and on that day in the village meeting the appellant denied his relations with the prosecutrix as well as the happening of the incident with her. Thus the Panchayat meeting could not take any decision and ultimately on 5.10.2006 the FIR was lodged by the prosecutrix. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his innocence and false implication in the case. One Kanwal Sai (DW-1) Kotwar of the village has also been examined by the defence to prove its case 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence punishabte under Section 376 ofthe Indian Penal Code. Hence this appeal. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that present is a case of false implication and if not it isa clear case of consent where the prosecutrix had 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 paragraph 12 yms-^^^.a^^.s^aiaai \/K: l^ '^*?^^%^ .. l:i 3- of the examination in chief of the prosecutrix. Literal translation of the same reads as under: Accused took her to the Kothar, caught her hand. Accused lay over her, He slept over her due to which she became pregnant and after sleeping he pressed her breast. Thereafter she returned. After removing cloths he inserted his private part in to herprivate part. Counsel for the appellant submits that this statement makes it clear that the prosecutrix had not made any attempt to save her. He submits that no resistance whatsoever was offered by the prosecutrix which itself shows that she was a consenting party. He submits that admittedly the appellant was not armed with any weapon where it could be said that the prosecutrix was terrified which means that the appellant did not make any assault. Counsel for the appellant further referred to paragraph 21 of the cross examination ofthe prosecutrix. Literal translation reads thus: She had relations with the accused nine times. She cannot tell the days, dates and months of the relations. It is correct to say that relations were on nine occasions in the gap^of four, five days at the time of harvesting of paddy. It is correct that thereafter no relations were there. It is correct to say that the said relation with the accused was with her consent. It is incorrect to say that relation was with her consent. She said that said relation was due to the forcible act of the accused. It is correct to say that n'me time relation was with her consent" Counsel for the appellant submits that from the above statement of the prosecutrix it is clear that she was a consenting party and she permitted the appellant to have sex on various occasions even after coming to know about the pregnancy. He submits that the conduct of the prosecutrix makes it clear that she was a consenting party and she too was enjoying the physical relationship. He has further referred to paragraph 23 of the cross examination of the prosecutrix, literal translation ofthe retevant portionthereof reads as under: When she first began the retations with the accused, she did not inform her parents. She told her parents after the relations were established on nine occasions. She told her parents after the incident three-four months thereafter. ^:^m..,^~-^r. ^fc""%,. /J^^ ^ t'1331J '• :^y -^- Counsel for the appellant further referred to para 29 of the evidence of the prosecutrix, literal translation of the relevant portion thereof reads as under: It is correct to say that she has lodged the report against the applicant as she had become pregnant. She has lodged the report as no decision was taken in the village. If the accused had conceded to her say, she would not have lodged the report. If she had not conceived, the report would not have been lodged. Counsel for the appellant submits that from the conduct of the prosecutrix it is clear that she was a consenting party and therefore offence under Section 376 IPC is not made out against the appellant. He further submits that in paragraph 20 of the judgment impugned the age of the prosecutrix on the date of incident is mentioned to be more than 16 years, it is not disputed that on the date of incident she was major. hle further submits that though the prosecutrix had come to know about herpregnancy in the month of June 2006, she waited till 5th of October, 2006 to lodge the report. He submits that the incident had taken place in the month of May, 2006 whereas the report was lodged on 5.10.2006 and thus there is inordinate delay on the part of the prosecutrix in lodging the report which has not been satisfactorily explained. In support of his argument, counsel for the appellant placed reliance on the decision of the Supreme Court in the matter of Pradeep Kumar Verma v. State of Bihar and another reDOrted in 2007 AIR SCW 5532 in which it has been held 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. He also placed reliance on the decision of Madhya Pradesh High Court in the matter of Jamnalal allas Chimman Dhimar v. State of ir T i .i T —i>"— M.P. reDorted in 2002 F21 MPLJ 169 in which it has been held as under: "Prosecutrix 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 for five months was indicative of her being in flagrante- delicto - Conviction under section 376, Indian Penal Code set aside." 7. On the other hand Counsel for the respondenVState supported the judgment impugned and argues that in paragraph 2 of her examination in chief the prosecutrix has stated as to in what manner she was subjected to rape by the accused/appellant. He further submits that mother and father of the prosecutrix namely Devkibai (PW-3) and Birsuram (PW-4) have also supported the statement of the prosecutrix that when she became pregnant, she informed them that she was subjected to rape by the accused/appellant and thereafter a Panchayat meeting was called in which the appellant has denied the physical relationship between the prosecutrix and himself. He submits that even the accused had provided certain herbs through Malti Mandavi (PW-9) for the purpose of abortion and that itself shows that it is the appellant who committed forcible sexual intercourse with the prosecutrix against her wishes. He submits that the defence has not been in a position to bring any material on record to show as to why the accused/appellant has been falsely implicated in the case. In support of his argument he relied upon the decision of Supreme Court in the matter of Yedla Srinivasa Rao v. State of A.P. reported in (2006) 11 SCC 615 and submits that the case in hand is squarely covered by the said judgment. 8. Heard counsel for the parties and perused the material available on record. 9. From the perusal of the record the following facts remain undisputed: (i) That on the date of incident the prosecutrix was major. (ii) (iii) (IV) (V) -^- For the first time she was subjected to rape by the accused in the month of May, 2006. In June 2006, the prosecutrix came to know about her pregnancy. On 13th of September, 2006 the first Panchayat meeting was called in which appellant remained absent. However, he had attended the second meeting and denied the physical relationship between him and the prosecutrix. The matter was reported to the police on 5.10.2006. 10. Before harping upon other evidence supporting or contradicting the statement of the prosecutrix, a close scrutiny of her evidence itself needs a careful examination. In paragraph 2 of her examination in chief she has stated that in the month of May in night hours she had gone to the house of accused for watching TV. While at about 10 p.m. she was returning alone, accused took her to the Kothar of Johan by catching hold of her hand and gagging her mouth with a cloth and in spite of her offering resistance he committed forcible sexual intercourse with her after threatening her of life. Later the accused said to her that he would marry her and in case of any problem he would take the responsibility. He told her not to disclose the incident to anyone. In paragraph No.3 of her examination in chief, the prosecutrix has further stated that when she did not have the period in the month of June, she went to the hospital at Amapara and told the nurse of the same, on which the nurse told her that she was pregnant. When she told the fact of pregnancy to the appellant, he threatened her to finish by stabbing with knife in her stomach and then she returned home. In paragraph 12 (sic) of her evidence she has stated that accused took her to the Kothar, caught her hand, lay over her, due to which she became pregnant and after sleeping he pressed herbreast. Thereafter she returned. After removing cloths he inserted his private part in to her private part. To a question put to her in paragraph 20 of her cross examination that after her relation with the accused during the period -7- of harvesting of paddy was there no further relation with him, she has answered the same in the term that it was continuing. Likewise in paragraph 23 of her cross examination she has stated that when she first began the relations with the accused, she did not inform her parents. She told her parents after the relations were established on nine occasions. She told her parents after the incident three-four months thereafter. In paragraph 29 of her cross examination she has stated that it is correct to say that she has lodged the report against the applicant as she had become pregnant. She has lodged the report as no decision was taken in the village. If the accused had conceded to her say, she would not have lodged the report. If she had not conceived, the report would not have been lodged. 11. Thus from the statement given by the prosecutrix before the Court it is apparent that she was a consenting party to the act of the accused/appellant and no resistance was offered by her at the time of sexual intercourse. Secondly the prosecutrix had enough opportunity to disclose the incident to her relatives or report the matter to the police. Even after coming to know about her pregnancy she has not lodged report promptly and she waited for the decision to be taken by the Panchayat and when no such decision in her favour was taken she thought of lodging the report as a last resort. If the prosecutrix could not lodge the report immediately after the first sexual intercourse which was done in the month of May, 2006, she could have lodged it in the month of June, 2006 because as per her own saying when her period stopped and the pregnancy was confirmed by the nurse, she had gone to the accused/appellant and informed him about the pregnancy on which she was given threat of being killed by him but even then instead of lodging the report she returned to her house. Moreover, she did not disclose the incident to her parents at the inception of the incident rather she disclosed the same to them for the first time when appellant had disowned the responsibility of her become pregnant and threatened her of life at the point of knife. Looking to her overall conduct the only inference which can be drawn is that the physical relations between the "it,Sss£^ -8- appellant and the prosecutrix were consensual and not otherwise. The judgment cited by the State counsel in the matter of Yedla Srinivasa Rao v. State ofA.P. (supra) is distinct on facts and hence cannot be of any help to the prosecution because the factual position of that case happens to be that the accused had been visiting the prosecutrix regularly in day time and persistently asking her to permit him to have sex but the prosecutrix kept on refusing him for the same. Thereafter, one day he came to her sister's house where the prosecutrix was residing while she was alone, closed the doors and committed sexual intercourse with her forcibly without her consent and against her will and thereafter the relations went on till she became pregnant. But, in this case there was no previous regular persistence or insistence on the part of the accused asking the prosecutrix to permit him to have sex with her and then the resultant refusal by her. On the contrary, after the first incident as per her own saying, the prosecutrix had physical relationship with the accused for nine times and there is no allegation that at any point of time he made physical relationship with her on the assurance that he would marry her. In the matter of Yedla Srinivasa Rao v. State of A.P. (supra) it has been observed by the Apex Court that if a fully grown up 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 and in such a case section 90 ofthe IPC cannot be invoked unless the Court is assured that from the inception the accused never intended to marry her. Thus it depends on case to case that what is the evidence led in a particular matter. It has been further observed that a fully grown up girl who gave the consent then it is a different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfill right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. It has further been observed in that case that what is a voluntary consent and what is not, depends upon facts of each case. '^ -<7- In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but the prosecutrix was also equally keen, then in that case the offence is condoned. Further it is on the spur of moment while she was returning after watching TV from his house, the incident took place for the first time and thereafter it went on till appellant disowned the responsibility of her pregnancy. As regards age of the prosecutrix, at the relevant time she was aged about 20 years as is clear from Kotwari Register Ex. D-4 and this fact is duly supported by the mother of the prosecutrix namely Devki Bai (PW-3). Moreover, as per the material available on record it is crystal clear that apart from the accused, prosecutrix was equally enjoying the physical relations without any protest on her part till the appellant disowned the responsibility of her pregnancy. Thus the overall conduct of the prosecutrix makes the act of the appellant a pardonable one. 12. Thus looking to entire material made available before this Court, considering the unexplained inordinate delay in lodging the FIR and most importantly the overall conduct of the prosecutrix as has been discussed above in detail, conviction under section 376 cannot stand. Accordingly, the appeal is allowed. Impugned judgment dated 6.1.2009 convicting and sentencing the accused/appellant as mentioned above, is set aside. Accused/appellant is acquitted of the charges levelled against him. He be set free if not required in any other case. —~ ~ Sd/- Pritinker Diwaker Judgs ^^