IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL NO. @F; /2007 [S.B.] [Date of Presentation 04.01.07] APPELLANT :- Anand Prakash Mishra, S/o Indrakant [IN JAIL] Mishra, aged about 25 years, Resident of near Kanhaiya Kiwana Stores, Danteshwari Ward, Jagdalpur, P.S. Bodhghat, District Jagdalpur [C.G.]. VERSUS {JV RESPONDENT :- The State of Chhattisgarh, Through - Special Police Station— Scheduled Castes and Scheduled Tribes [Prevention of Atrocities], Bilaspur [CG] CRIMINAL APPEAL UNDER SECTION 374 [2l OF THE CODE OF CRIMINAL PROCEDURE A. k §snzv HIGH COURT OF CHHATTISGARH AT BILASPUR \ Hon’ble Mr. Justiée Pritinker Diwaker Criminal Appeal No. 07/2007‘ APPELLANT Anand Prakash Mishra Versus RESPONDENT State of Chhattisgarh Shri Malay Bhaduri counsel for the appellant. ‘ \ Shri Ashlsh Gupta PL for the State. CRIMINAL APPEAL UNDER SECTION 374 11} OF THE CODE OF CRlMlNAL PROCEDURE $ JUDGMENT (5.04.201 1) The appellant calls in question the legality, validity and propriety of the judgment and order dated 27.12.2006 passed by Special Judge [constituted under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act] {for brevity “the Act”}, Bilaspur, in Special Case No. 65/2004 convicting him for the offence punishable under Section 376 IPC and sentencing to undergo rigorous imprisonment for seven years and pay fine of Rs. 2000, indefault of payment of tine to further undergo rigorous imprisonment for one year. 12. Factual matrix in narrow compass goes thus. On 16.3.2004 a written report Ex. P-9 was lodged by the prosecutrix (PW-1 4) aged about 24 years at the relevant time, to the effect that the accused/appellant who was the classmate of her brother Abhishek Badge (PW-3) in Engineering College, Bilaspur and staying in her house, used to subject her to rape since November 2003, as a result of which she was carrying the pregnancy of three and a half months. Based on this written report, FIR (Ex. P-7) was registered against the accused/appellant for the offences under Sections 376 IPC as well as 3 (2) (5) and 3 (1) (Xll) & of the Act and after completion of investigation, challan was filed by the police on 31 .3.2004 for the said offences. > 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 16witnesses inisupport of its case. Statement of _2_ the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and took the plea of his innocence and false implication in the case. 4. After hearing the parties, the trial Court has acquitted the accused/appellant of the charge u/s 3 (2) (5) and 3 (1) (Xll) of the Act but convicted and sentenced him as mentioned above in paragraph No.1 of this judgment. s Counsel for the accused/appellant submits that there is inordinate delay in lodging the FIR which has not been satisfactorily explained by 5. w the prosecution. He submits that conductof the prosecutrix in allowing the accused/appellant to make physical relations with her for number of months and not disclosing the same till he had not shown his disinclination to marry her shows that she was a consenting party to the act of the accused/appellant. He submits that in the Court statement the prosecutrix has nowhere stated that the written report Ex. P-9 was drafted on her instructions and according to her she had just signed the same but according to the maker of the report (PW-16) it was prepared on her instructions and nothing has been added to it by him, and in these circumstances the, evidence of the witnesses particularly the prosecutrix t, l appears to be fraught with inconsistencies apart from contradictions and 0mISSlOnS. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the prosecutrix was given an assurance of marriage by the accused/appellant, she did not come forward to lodge the report and as soon as she came to know about the deceptive attitude on his part, the report came to be lodged by her. ln support of his submission, reliance has been placed on the decision of ‘ the Supreme Court in the matter of Yedla Srinivasa Rao v. State of A.P., (2006_)_11 SCC 615 7. Prosecutrix (PW-14) aged about 27 years has stated in her evidence that the accused/appellant is Brahmin by caste whereas her caste is Mahar. According to this witness, her younger brother Abhishek Badge and the accused/appellant herein were the classmates in " -3... Engineering College, Bilaspur and as there was some quarrel between the accused and someone else, on his request, her brother permitted him to stay in her house. This witness has stated that while staying in her house, the appellant had developed intimate relations with her family members apart from being on talking terms with her also. At the time when her elder brother Rishikesh Badge had met with some accident and her younger brother Abhishek had been to Hyderabad for training and she was all alone in her house, the‘accused/appeiiant taking advantage of her loneliness, committed forcible sexual intercourse with her; on cry raised by her, he pressed her mouth asking her not to disclose the matter to anyone and assured to marry her. According to this witness, due to the fear of accused/appellant, she did not disclose the matter to anyone and he continued to make physical relations with her on the assurance of marriage as a result of which she became pregnant. According to her, after she disclosed about her pregnancy to the accused/appellant, he left her house and that even after his departure when she insisted him for marriage on phone, he kept on avoiding the same. Being under the impression that the accused/appellant would marry her, she waited for some time and ultimately she disclosed the incident to her brother and sister-in-law and then the written report was lodged in Harijan Thana. ln cross examination this witness has stated that in the month of September the accused/appellant had come to live in her house and in the month of October her brother Abhishek had left for Hyderabad for training and during this period she and the accused/appellant were on talking terms only and that he did not make any attempt for physical relations nor did he ever express his love for her. She has further stated that the accused/appellant had come to her house in the month of September, 2003 and in October, 2003 her brother had left for Hyderabad for training. According to her, ‘in the end of October her elder brother had met with some accident and remained hospitalised for 15 days. She has expressed her ignorance about the date on which the accused/appellant subjected her to rape for the first time and stated that it was in the month of November. She has clarified that the incident had taken place in between 15-20 November,03 at about 2—3 O’clock in the night and that she was about to raise an alarm but the accused/appellant pressed her -QH mouth. At that time, according to this witness, her brother and sister-in- iaw were in the hospital. She has stated that at the time of incident her elder sister Neelima Badge was in the other room situated in the first floor. Incident is said to havetaken place in the room of the prosecutrix herself and after commission of the offence the accused/appellant left her room. According to her, she did not disclose the incident to anyone including her sister or sister-in-law and the accused/appellant continued the physical relations with her from November, 2003 to January 2004 but she did not make even a whisper of it to anyone. She has stated that in the beginning of February, 2004 the accused/appellant had left her house and just 2-3 days thereafter she started to talk to him on phone b’ut by the end of February, 2004 he telephonically conveyed his refusal to marry her and 2—3 days thereafter she disclosed the incident to her brother and sister—in—law.‘ On this, her brother rang the accused/appellant up on the same day but he flatly refused to marry her. According to this witness, even after refusal made by the accused/appellant ‘she and her family members persistently tried to persuade him and his family members for marriage but when no positive response was given by them, the written report came to be lodged on 16.3.2004. This witness has reiterated that till February, 2004 she did: not disclose the incident to her family :members. She has stated that the written report was prepared by some advocate and she had just signed the same at his instance. She has however expressed her ignorance as to after how many days of the report being prepared, it was given to the police. According to this witness, she had also disclosed the incident to one Fatima who was living in her house as tenant and that for the first time she came to know about her pregnancy on 15-16 January, 2004 There are several contradictions and omrssrons In the Court statement of this wrtness If compared to the case diary statement as Is evrdence from paragraphs 38 to 42 paragraph 43 of the deposmon this wrtness has stated that while the accused/appellant had pressed her mouth, she did not try to bite his hand and that even after completing his act; he remained in her room for 10-15 minutes. ln paragraph 45 of the deposition, she has further clarified that had the accused/appellant married her, she would not have lodged the report. l Smt. Fatima (PW-1) has stated in her evidence that at the relevant i time she was residing in the upper portion of the house of the prosecutrix as tenant. According to her, the accused/appellant being the friend of the brother of the prosecutrix had stayed in her house for two-three months. She has further stated that once the prosecutrix had told her that the accused/appellant had subjected her to bad work. Rishikesh Badge (PW- 2) — the brother of the prosecutrix has stated in his evidence that the accused/appeiiant had stayed in his house since September, 2003 till January 2004 and that his sister (the prosecutrix herein) had informed him that she was carrying pregnancy through the accused/appellant and ‘ that when he refused to marry her, the report was Iodged with the police. .j" Abhishek Badge (PW—3) — another brother of the prosecutrix has stated almost the same thing as has been stated by Rishikesh Badge (PW-2) with an addition that he had permitted the accused/appellant to stay in his house for two months with the c‘onsent of his brother Rishikesh Badge (PW—2) and that he stayed with him from September to January. 0 According to this witness, when his brother Rishikesh contacted the accused/appellant on phone, he had come down to Bilaspur and assured to marry the prosecutrix. However, when he was asked to till in the marriage form prescribed by Arya Samaj, he showed his disinclination on account of his belonging to upper caste. Dr. Shilpa Mishra (PW-4) is the Pathologist, who had examined the spermatozoa of the accused/appellant. Dr. (Smt.) Maya Pandey (PW-5) who had medically examined the prosecutrix and given her report Ex. P-2 has stated that no internal or external injury was noticed on her person and she was carrying pregnancy of 8-10 weeks. Dr. Abdul Sharif Khan (PW-6) is the witness who had medically examined the accused/appellant and given his report Ex. P—4 opining that he was capable. of performing sexual intercourse. Head Constable namely Satyanarayan Tiwari (PW-7) had seized the vaginal slides of the prosecutrix vide Ex. P-6. Chandra Kant Tiwari (PW-8) — Head Constable had recorded FIR Ex. P-7. Pratap Singh Toppo (PW-9) is the witness who had issued caste certificate Ex. P—8 to the prosecutrix. Nilima a Badge (PW-10) - the elder sister of the prosecutrix has stated in her evidence that she was informed by the prosecutrix in the month of January thatshe was subjected to physical ; t ‘ pig _ relations by the accused/appellant as a result of.which she was carrying pregnancy of two and a half months. Smt. Saranga Badge (PW-1 1) — the sister-in—Iaw of the prosecutrix has stated that in the month of February the prosecutrix had informed her that she was carrying pregnancy of two months through the accused/appellant. Sunanda Bolar (PW-12) - relative of the prosecutrix has stated in her evidence that the accused/appeilant resided in the house of the prosecutrix from September, 2003 to January, 2004 and that she had informed her about the pregnancy through the accused/appellant. Sunii Bolar (PW-13) has also made almost similar statement as has been made by Sunanda Bolar (PW-12). Uttam Singh Gaur (PW-15) is the lnvestigating Officer who has supported the case of the prosecution. R.C. Gangwani (PW-16) is the advocate who had reduced the written report Ex. P-9 to writing. He has stated that said report was prepared by him on the instructions of the prosecutrix and he has not added anything thereto. 8. From the perusal of the record the following facts remain undisputed: (i) That on the date of incident the accused/appellant was living in the house of the’prosecutrix. (ii) That for the first time she was subjected to rape by the accused in the month of November, 2003. (iii) That in January 2004 the prosecutrix came to know about her pregnancy. (iv) That sometime by the end of January and beginning of February, the prosecutrix had informed her sister and sister- in-law about her pregnancy through the accused/appellant. (v) That the accused/appellant was contacted by the prosecutrix and her family members in the month of February and' March, 2004 asking him to marry the prosecutrix and when he refused for the same, the written report Ex. P-9 was lodged on 16.3.2004. 9. Before harping upon other evidence supporting or contradicting the statement of the prosecutrix, a close scrutiny of her evidence itself needs a careful examination. ln paragraph 3 of her cross examination she has ’ -7_ stated that when her elder brother Rishikesh had met with an accident and younger brother had gone to Hyderabad, she was all alone in the house and subjected to forcible sexual intercourse by the accused/appellant and after completing his act he had asked her not to disclose the matter to anyone and then he assured to marry her. She has further stated that the accused/appellant used to make physical relations with her continuously and after becoming pregnant she informed this fact to him who had assured to marry her. Thus it is clear that even after becoming pregnant, physical relations between the prosecutrix and the accused/appellant continued. lt is also clear from the evidence of the prosecutrix that she never protested against the act of the accused/appellant. The prosecutrix has admitted the fact that on the day when she was first subjected to sexual intercourse, he had stayed in her room for 10-15 minutes even after completing the offence and that at the relevant time her elder sister was sleeping in the other room. She has further admitted that the report was prepared by her lawyer and she had merely signed the same. She also admits that in between November, 2003 and January, 2004 when the accused/appellant continued to have physical relations with her, all her family members used to remain in the house. She has admitted the fact that had the appellant married her, she would not have lodged the report. Evidence of the relatives of the prosecutrix also reveals that in the month of January and February they came to know about the physical relations between the appellant and the prosecutrix but written report was lodged only‘on 16.3.2004. 10. 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 waited till 16.3.2004 to do so. lf the prosecutrix could not lodge the report immediately after the first sexual intercourse which was done in the month of November, 2003, she could have lodged it in the month of December, 2003 or January and February, 2004 because as per her own saying when her period stopped and the pregnancy was n , ' _g_ conflrmed by the doctor, she informed the accused/appellant about the same but even then she kept mum till 16.3.2004. 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 responSibiIity of her becoming pregnant and refused to marry her. Looking to her overall conduct the only inference which can be drawn is that the physical relations between the 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 of A.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 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 on several occasions but she disclosed the same to her parents only after the refusal by the accused/appellant to marry her. Thus it depends on case to case that what is the evidence led in a particular matter. In the case in hand, 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 and resultant refusal to marry her. ThUs the overall conduct of the prosecutrix makes the act of the appellant a pardonable one. This apart, the record shows that the accused/appellant had not assured the prosecutrix for marriage before committing the sexual intercourse with her for the first time but it is when the act was over he had assured her for the same. vq_ 11. Thus looking to entire material made available before this Court, considering the unexplained inordinate delay in lodging the report 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 convicting and sentencing the accused/appellant as mentioned above, is set aside. Accused/appellant is acquitted of the charges levelled against him. He is already on bail. His bail bonds stand discharged. ‘ Sd/— Pritinker Diwaker Judge