IHHIHHIIIIHHHHHI ”HM 0000057276 , %§ r , ., V ..... V ‘r BPuA { /. M m W O A DSH T JA3ALUR. THE LilGH CRT F MDEYA ?R.AL: : A P / ala‘ or ,‘aao‘oa ami, a 17 ear's ‘§/orxharera, manasa mstériet. aaipu (Mm) . S. J ,_ Te s o Ma a I g t ' )“ igwmgn‘ UNaEav smctnlow 374$ \ w Mml éon Biili, Sm m y Ms. amn K / V " h tat; f édhy PrdeSh / HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 54 of 1991 Munnalal S/o Baboolal Satnami VERSUS RESPONDENT State of Madhya Pradesh. APPELLANT Shri B.P. Sharma, counsel for appellant. Shri Vivek Sharma PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 12! OF THE CODEOF v ‘ CRIMINAL PROCEDURE. J U D G M E N T (08.04.2010) This appeal is directed against the judgment dated 8.1.1991 passed by Additional Sessions Judge, Mahasamund, in Sessions . Trial No. 230/1990 convicting the acCused/appeilant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for five years. we: 2. Case of the prosecutionin brief is that on 4.5.1989 FIR (Ex.P— 1) was IOdged by the prosecutrix (PW—1) aged about 18 years alleging that on 28.4.1989 when she was all alone in her house, accused/appellant who happens to be her brother-in—law (Devar) caught hold of her hand, took her to another room and after upturning her clothes committed forcible sexual intercourse with her. When her. mother—in-law came back after taking bath, she narrated the incident to her. She also narrated the incident to her husband after he returned home. Being in fear on account of the incident, her father-in-law had dropped her in the house of her sister namely Agar Bai at village Parsatti. The incident was narrated by the prosecutrix to her grand mother namely Lubhnin Bai (PW—2) also who in turn called her father and uncle and then the report was lodged. Q 3. So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case Statement of the e we accused/appellant was also recorded under section 313 of the Code of Criminal Procedure In which he demed the charge levelled against ‘ ..—s_ ‘ him and pleaded his innocence and false implication in the case. Four witnesses namely Roman, Chaman, Kartik and Udho (DW—1 to DW-4 respectively) have been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Counsel for the accused/appellant submits that there is an inordinate delay in lodging the FIR as the incident is said to have 2" taken place on 28.4.1989 whereas the report was lodged on V 4.5.1989 which has not been satisfactorily explained by the prosecution. He submits that in the FIR'the prosecutrix’ has stated that after the incident, her father—in-Iaw had dropped her in the house of her sister Agar Bai whereas in her court statement she has stated that she had gone to the house of her aunt namely Dhaneshi Bai. He submits that though the incident was narrated by the prosecutrix to her mother-in-Iaw, husband, father-in-Iaw and grand mother yet the report was not lodged promptly. He submits that the medical report of the prosecutrix also does not support the case of the prosecution. He submits that there was some dispute between the two families and therefore on 3.5.1989 i.e. just before lodging of the‘FIR, there was a meeting of Satnami community in which a proposal was given in presence of the father of the prosecutrix that v as theprosecutrix and her husband are not willing to live together, an agreement should be executed to that effect. According to the counsel for the appellant, based on this proposal, an agreement Ex. D—3 was executed between the father of the prosecutrix and her l, g, ’ husband and as a result of which her husband has divorced her. lt : was also agreed that if the agreement is not followed by either of the ‘ parties, Rs. 1001 would have to be paid as penalty. Counsel for the appellant further submits that as father of the prosecutrix was not willin'g to pay the said amount, a false report has been lodged by her. He submits that there, are several inconsistencies in the statements of the prosecutrix and the prosecution witnesses on the basis of which appellant cannot be convicted under Section 376 IPC. / _3_ 6. On the other hand counse! for the respondent/State supports the judgment impugned and submits that ’delay in Iodging the FIR has occurred firstly because immediately after the incident the prosecutrix was sent by her father-in-law to her reiative’s house and secondly that she was prevented by the accused/appellant ff'om doing so. He submits that'so far as the agreement is concerned, same appears to be a concocted one as no defence witness has proved the same. He submits that there was no occasion for the prosecutrix to implicate the accused/appellant in Va false case especially when one month prior to the incident she was married to the brother of the accused/appellant. Prosecutrix (PW-1) has stated in her evidence that her marriage was solemnized with the elder brother of the accused/appellant namely Roman. On the date of incident her husband had gone to some other village to meet his sister. At about 12 noon her mother-in-law had gone to the pond for taking bath and when she was cooking food, accused/appellant came there, caught hold of her hand, took her to the bed room, threw her on the floor, committed forcible sexual intercourse with her and then he fled away. When her father-in—law, mother-in—law and grand mother came back, she narrated the entire incident to them. Thereafter, she was'dropped by her father-in-law to the house of her aunt namely Dhaneshi Bai who was living in a different village. According to the prosecutrix, her grand mother Lubhnin Bai had also accompanied her thereto This witness has stated that so as to prevent her from lodging the report her father—in law husband brother—In law had kept a close watch on her movement and did not allow her to get out of the house of her aunt Dhaneshi Bai for 4 5 days. According to this witness, her grand-mother somehow managed to get out of the house of Dhaneshi Bai, went to Raipur and disclosed the incident to her father namely Krishna Kumar. Immediately after coming to know about the incident, her father and uncle had come Blown to village Parsatti where she narrated the entire incident to them. Thereafter, her father and uncle had gone to police station Mahasamund and BroUght the police people along with them and then the report was lodged by her. In cross examination this witness has stated that near 7. s ,, ‘1 ‘Q_ /Y " the house of her father—in-Iaw, the houses of his brothers were also there but no third person was residing there. She has stated that near the house of her father—in-Iaw, house of one Madari is also situated but at the time of incident he was not there and his house was locked. This witness has stated that she was held so tightlf by the accused/appellant that she could not free herself from his clutches. Though she made an attempt to raise an alarm, on account of beingthreatened and her mouth being gagged by the accused/appellant she could not do so. She has stated that she did not sustain any injury on account of being thrown on floor by the- accused/appeiiant and that her clothes were not removed by him but her sari and petticoat were simply upturned at the time of commission of offence. Lubhnin Bai (PW-2) has supported the .statement of the prosecutrix and stated the manner in which the incident was narrated to her and how she and the prosecutrix were confined in the house of Dhaneshi Bai for four days. She has stated that she and the prosecutrix were not permitted to come out of the house of Dhaneshi Bai even for the purpose of answering the call of nature but somehow she could manage to come out and go to Raipur where she narrated the entire incident to the father of the prosecutrix. Though there are certain minor contradictions in paragraph 6 of the statement of this witness, for that only the entire testimony of this witness cannot be discarded Dhaneshi Bai (PW—3) in whose house the prosecutrix and Lubhnin Bai were confned has supported the case of the prosecution This Witness has reiterated that when the prosecutrix was kept In her house a close watch on them was kept by the accused/appellant and his relatives Krishna Kumar (PW 4) the father of the prosecutrix has also supported the case of the prosecution and stated that after .receivmg the information from LUbhnin Bai (PW—2) he and his brother Ghanshyam had gone to the house of Dhaneshi Bai where the prosecutrix had narrated the entire incident to him. He has stated that‘the prosecutrix had also informed him as to howshe was kept in the house of Dhaneshi Bai and was not permitted to come out It is relevant to note here that defence of the appellant that Panchayat meeting was called on 3 5 1989 and an agreement was executed between the § _\' father and husband of the prosecutrix (Ex. D—3 and D-4) but no question whatsoever was put to this witness i.e. Krishna Kumar (PW—4), the so called signatory of theagreement and the Panchayat meeting. Only presumption that can be drawn is that the defence has utterty failed to prove the documents Ex. D-3 and D-4 which is not helpful to the accused/appellant in any manner. Dr. (Smt.) Alka Pardal (PW-5) who had medically examined the prosecutrix has stated in her evidence that she had not found any injury on her body and no opinion regarding recent intercourse with her could be given. ‘It is to be'noted that medical examination of the prosecutrix was done eight days after the incident and that too she was a married lady. The prosecutrix has stated in her evidence that when she was subjected to forcible sexual intercourse by the accused/appellant her cloths were not removed andthat she did not suffer any injury on her person. Thus the argument of the counsel for the appellant that the prosecutrix did not suffer any injury does not, in any way, help the accused. Hiralal (PW-6) is the seizure witness of petticoat of the prosecutrix and underwear of the accused/appellant. Dr. K. Vinay Kumar (PW—7) who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. S.L. Maravi (PW-8), Town inspector is the witness who had registered FIR. Investigating Officer R.B.S. Parihar (PW-9) has supported the case of the prosecution. 8. If'the evidence of the defence witnesses is looked into, it appears that on 3.5.1989 some society meeting was called in which it was agreed that there would be a divorce between the prosecutrix and her'husband. However, as stated earlier that no question was put by the accused/appellant to the father of the prosecutrix and even the signature of Krishna Kumar has not been proved by the prosecution. Moreover, documents (Ex. D-3 and D-4) do not disclose as to for what purpose the said meeting was called and what for the agreement was entered into between the parties and further that these two documents have not been Signed by the accused/appellant and the prosecutrix. Reason assigned by the pr‘osecution that as a close watch was kept on the movement of the prosecutrix for five days, delay in lodging the FIR has occasioned, ‘ 7‘“ é ,, appears to be satisfactory. True it is that if the FIR is lodged promptly, chances of embellishments are eliminated, but it is equally true that where every-day delay has been explained by the prosecutnx very satisfactorily, It should not prove fatal to the case of the prosecution So Is the Situation In the case In hand as particularized above. Though Roman (DW—1) — the husband of the I prosecutrix has stated that a false report has been lodged by the prosecutrix against hrs brother merely on this statement accused cannot be held innocent 9. Minute examination of the material available on record makes it clear that the prosecution has come forward with sufficient explanation regarding delay in lodging the FIR. Prosecutrix, her aunt Dhaneshi Bai and grand mother Lubhnin Bai have categorically stated that the accused and his relatives were continuously keeping ' a close watch on their movements by not permitting them to come out of the house of Dhaneshi Bai. ln the statement recorded under Section 313 of the Code of Criminal Procedure, the accused has taken the plea of alibi but as no cogent evidence in this regard has been adduced by the defence and even in the cros's examination of the witnesses no such question was put, this also would not be of help to the accused/appellant. In the FSL report Ex. P—1O sperm was found in the petticoat of the prosecutrix and undenlvear of the accused Even if much weightage is not given to this report as these articles were seized 67 days after the rncrdent evrdence of wrtnesses particularly that of the prosecutnx Inspires full confidence of this Court. Furthermore, the accused/appellant who happens to be the brother-in-law of the prosecutrix taking advantage of her loneliness in the house, made her victim of his lust, which does not entitles him to be dealt with sympathetically. r10. ln view of the discussion as above, this Court does not see any illegality or infirmity in the findings recorded by the Court below convicting and sentencing the accused/appellant \under‘Section 376 IPC. Appeal thus involves no substanCe in it warranting interference with the judgment impugned. Accordingly, the appeal is dismissed. yx'Yd . s. Sd/- / Pritinker Diwaker ‘-‘ i W i, Judge w .