'^ 2N THS HI©H CS&BfE ®? SVm&iWSS AT BILSSPgS (e.G.) ©Bi'Appe&l. NB.' ^'•&~-; Qf 2004 C Mem@Fana^B ®fer'.^ipea.l B/s 374(2) af ar.P.G. ) »B®!.!l!anl tn iS&il' \i &Y»-.--.--'"' U:)-l\-J''"fe^'- ^°'-"t-a R't0^^ %^^ 8 yghsVh.''B!^Mf. 3/jS NaffsxsB.,Taaaw aged ., 23 .-^as^g.r/®Sa'titoanS" SMIB (SSiajife Bhawan fe-Pssg ahana Amaaaica Bis-fcric-b Baipur (igS). Versus •Efae Stats as (hha'btisgaifeipbhroagfa •Ishe Bls-briet Magj.sfesate Baipar. ^ H®1@BANBUM 8S' eRIMISAL APPBSt WBBB SEe$T@N 374(2) Q? e&.P.C, ..Hfe-0?. -^,^,:, ....:^.-,., jaaB.id-Biina- ass^aB^- :I 'w^;—fia->*iijc—Virsvrcx —uinrcy.n/.i.-a^—• i- —- ^^a.a.atEit- ""^'^""*-'*-.-^ ,;.J 'Si HieH COURT OF CHH/tTTIS6-4RH AT BIUtSPUR Cr. Appeal No.459/2004 Mohan Yadav Vs. State .. of Chhatl-isgarh Post for Judgment: 7.07.2006 Sd/- Dilip Raosaheb Deshmukh Judge W!T^"!?F!HrF^:-^l i''^ -j£' !i:BlffiS3i!iilRiSSSJ: HI6H COURT OF CHHATnSSARH AT BIL45PUR Cr. Appeal No.459/2004 Single Bench; Hon'ble Shri Dilip Raosaheb Deshmukh, J. <fr Mohan Yadav Versus The State of Chhattisgar+i 5hri Awadh Tripathi, £'ounse)for the appellant. Shri Parag Kotecha, Panel Lawyer for the State. JU&6MENT (Oefivered on -rfiis 7+l-de2y of July 2006) This (ippeal is directed against the judgment dated 15.04.2(X)4 delivered by Shri Anil Kumar Shukla, Additional Sessions Judge, Raipur in Sessions Cose No. 27/04 whereby the appetlant was convicted under Section 376 & 450 I.P.C. nnd sentenced to undergo rigorous imprisonment for three years and a fine of Rs.2,000/- and in default to undergo R.I. for 6 months under Section 450 I.P.C and to undergo rigorous imprisonroent for ten years and a fine of Rs.3,000/- and in default to undergo R.I. for one year under Section 376 I.P.C." 2. Briefly stated the prosecution story is that on the night of 4.9.2003 at about 12.00 P.M. -the prosecutrix, cged about 16 i to 18 years and a girl of unsound mind was inside the house. Narendra Kumar P.W.l, brother of the prosecutrix came out for attending a cal! of nature. On retuming to his room, his wife Bhuneshwari Bai P.W.3 asked him about the person who had entered the room of the prosecutrix. Upon -this, Narendra Kumar went to the room of -the n'm'ii'f'T'' prosecutrix ond switched tfie light on and found the appellant sitt-ing on the cot of the prosecutrix with onty a towel wrapped along the waist. Narendra Kumar cought hold of the appellant <md slapped him. Bhuneshwar Bai P.W.3 and Devkunwar P.W.2, mother of the prosecutrix also arrived there. The appellant ran away. On being asked, the prosecutrix told them that the appetlant had committed sexua! intercourse with her. 3. F.I.R. was iodged by Narendra Kumar on 6.9.2003 at about l.( P.M. During investigation it was found that the prosecutrix was undergoing treatment since April 1992 for psychological disorder. Treatment fapers Ex.P.3 & 4 were seized vide seizure memo Ex.P.2. The prosecutrix was medically examined by Dr. Mrs. A. Dutt P.W.8 on 6.9.2003 who found that her hymen was tom and admitted one finger easily. There was no tenderness. It was opined that sexual intercourse had been committed on the prosecutrix. However, no definite opinion regarding forceful sexual intercourse could be given. No external injuries were found on her person. Two vaginal stides were prepared. br. Preeti Agrawal, Assistant Professor of Obstetrics and Synaecology P.W.10 examined the prosecutrix on 7.9.2003 and reiternted the findings and opinion given by &r. Mrs. A. Dutt. The appeiiant was examined by Dr. Y.C. M.ihsra P.W.9. and found that the oypellant was capable of performing sexual intercourse. Radiological examination of the prosecutrix for estimation of her age was done and as per reporf- of Ossification test, it was opined -that die was aged between 16 i to 18 yecu-s. On 7.10.2003 the prosecutrix was examined by Dr. Mrs. A. Dutt- who opined that she was a psychiatric patient and undergoing treatment at &r. B.R.Ambedkar Medical College Hospital. Dr. M.K.Sahu also examined the prosecutrix on 7.10.2003 cnd opined that she was a known case of psychosis and undergoing treatment at the above mentioned hospital. After :-g: •I .'r-- comptetion of investigation, the appelkint was pro^cuted under &ction 450 and 3761.P.C. 4. The appellnnt abjured the guilt, pteaded innocence <md faise impiication due to previous enmity and quarrel between the two families. No evidence in defence was led. The prosecution examined as many as 13 witnesses. The learned tria! Judge, relying upon the evidence ied by the prosecution, convicted and sentenced the appetlant as aforesaid in para 1. 5. Shri Awadh Tripathi, !earned counsel for the appellant has, at the very out set, submitted that he woutd assail the conviction of the appellant only on the ground that the appellant had gone to the house of the prosecutrix. at 12.00 in the night on 4.9.2003 and committed sexua! intarcour% with the prosecutrix with her consent. He did not argue against the reliability of the testimony of Narendra faimar P.W.l, Devkunwar P.W.2 and Bhuneshwari Bai P.W.3 but focused his argument only on the admission of the prosecutrix that she was naked and smiling at •tiie time of commission of rape by the appellant and that she tiked the sexuat act committ'ed on her by the appetlont. No other ground was urged in this appeal. On the other hand, Shri Parag Kotecha, leamed Panet Lawyer for the State while arguing in support of the impugned judgment contended that the evidence led by the prosecution ctearly revealed that the prosecutrix was a person of unsound mind and was unable to undsrstcmd the nature and consequences of the sexual act. It was urged that under Fifth description of Section 375 I.P.C., sexual intercourse with the consent of a woman who by redson of unsoundness of mind, was unabie to understond the nature ond consequences of the sexual act to which she ga.ve consent, iegally amounted to rcpe. 6. Haying considered the rival submissions, I have perused the record. The testimony of the prosecutrix P.W.4 that the cppellant \JSSS ^.'. came inside her room at night and committed sexual intarcourse with her is fully corroborated by her brother Narendra Kumar P.W.l who saw the appellant insids the room of the prosecutrix at 12.00 in the night with only a towel on his body cnd olso by the testimony of Devkunwar P.W.2, mo1+ier of the prosecutrix to whom the prosecutrix had narrated thot the appe!lant had sexual infercourse with her. The above evidence is also corroboreted by Bhuneshwari Bai P.W.3 who also saw the appellant inside the room of the appellant at the dead of night uid to whom the prosecutrix told on the next dey that the appellant had committed sexual intercourse with her. The medical evidence of Dr. Smt. A. Dutt P.W.8 also establishes that on 6.9.2003 she found that that hymen of the prosecutrix was tom. Dr.Smt. Preeti Agrawal P.W.10 also reiterated the findings given by Dr. Smt. A. Dut!' P.W.8 and opined about the possibility of sexual intercourse with the prosecutrix. The credibjlity of the above evldence was not challenged in this appeat. Thus, the leamed trial Judge has rightfy concluded tiiat the appellant entered the house of the prosecutrix at tiie dead of night of 4.9.2003 and committed sexual intercourse with her. This finding has not been assailed by the learnsd counsel for the appellant during arguments on the ground that the sexual intercourse with the prosecutrix wgs wholly with her consent. 7. The only point that requires consideration in this appeal, therefore, is whether the eqipellant had committed sexual intercourse with the prosecutrix with her consent. It is not disputed that the prosecutrix was a girl aged more than 16 years on the date of occurrence. Section 375 of the I.P.C. carves out an exception uncter clause Fsfth where sexual intercourse eyen though it was comraitl-ed with the consent of the prosecutrix, amounts to rape where the womon while giving consent to sexual intercourse was by reason of €a. unsoundness of mind unable to understand the nature and con%quences of the sexual act to which she ys.ve consent. Learned counse! for the appellant has argued that the testimony of the prosecutrix shows that she was naked and smiling while 1+ie appellant was committing sexual intercourse with her and had liked the sexuat act of the cppelbnt whicli cleerly proved consent of -riie prosecutrix. However, as pointed above, such consent would be inconsequentia! if the evidence !ed by the prosecution would show -rtiat by reason of unsoundness of mind Ae was unable to understand the na-hjre and consequence of the sexual act to which she gave consent. Not only during tria! but also during argurnents befors the leamed trial Judge, the appellant had not taken the plea that sexual intercourse committed by him with the prosecutrix was with her con^nt due to which this aspect neither emerged during cross- examination of the prosecution witnesses or in the examination of the accused under Section 313 Cr.P.C. nor was dealt with in the judgment deiivered by the leamed tria! Judge. 9. Narendra Kumar P.W.l has stated that the mental facult/ of the prosecutrix was not fully developed. Her capacity to coinprehend and think was weak and she would smile without reason. Devkunwar P.W.2, motiier of the prosecutrix, a!so stated that the prosecutrix was mentally weak and unable to comprehend things. Bhuneshwari Bai undergoing treatment though she had improved and used to talk properly. The learned trial Judge noted the demeanor of the prosecutrix before recording her evidence that she did not appear to be a batanced womon since for no reason she would start smiling, although sometimes she would be able to answer the questions after understanding them. &r. 5mt. A. Dutt P.W.8 has testified that father of the prosecutrix had told her that the prosecutrix was undergoing 1-^ psYchiatric treatment since last 4 years, and therefore, she referred the prosecutrix to the Medical College. Although Dr. Smt. Preeti Agrawal P.W.10, Assistant Professor, Medical College, Raipur has stated that the prosecutrix was a normat woman and was abte to comprehend the conversation, Dr. M.K.5ahu P.W.13, Assistant Professor in Psychiatrics, B.R.Ambedkar Hospi+al, Raipur- stated that ttie prosscutrix was undergoing treatment for schizophrenia and had improved though she used to smile without reason and would not take care of her clothes. The entire evidence ted by -She prosecution, as mentioned in this paragroph, stood unrebutted in cr'oss-examination. TTie appellait did i"iot take the defence that sexua! intercourse committed by him with the pro^cutrix was with her consent. He took the plea that the qspeilant was falsely implicated bacause of enmity since mother of the prosecutrix was called a witch by the mother of the appeitat and the two families were not on talking terms. If such we.re the circumstances, the prosecutrix, had she been of sound mind, would have never permitl-ed the appellant to commit sexual 10. Having considered the evidence led by the prosscution, as mentioned above, I am of the considered opinion that at the time of sexua! intercourse, the prosecutrix was, by reason of unsoundness of mind, unable to understond the nature fmd consequences of the sexual act committ'ed by fhe appellarst. There is nothing on record to show that the prosecutrix had called the appellant at her house at the dead of night. l-1er testimony ctearly shows that at the time of sexual intercourse she wassmiling since she felt that the appeilant was her husband. Under the description Fourthly of Section 375 I.P.C. a mun is said to commit roipe who has sexual intercourse with a woman even with her consent when he knows that he is not her husband, and that her consent is given because she believes that he is another man to whorn she is or believes hersetf to be lawfutly married. Even if the testimony of the prosecutrix is to be bejieved, it would clearly show that she conanted to sexual intercourse by the appeilant assuming •ttiat the appeilant was her husbaid. The e'/idence led by +he prosecution shows that dne was comptetely unabfe to understand the nature and consequence of the sexual act due to unsoundness of mind. The sexual act commiti'ed on her by the appellant clearly falls within rte definition of rape under Section 375 I.P.C. 11. On being asked by the leamed trial Judge about the factum of resistance or the fact that she was naked, the prosecutrix remoined quiet and did not answer. Dr. M.K. Soihu P.W.13 has clearly stated that the prosecutrix, a patient undergoing treatment for schizophrenia did not care about her ciothes. Considering the evidence of Narendra Kumar P.W.l, Deykunwar P.W.2, Bhuneshwari Bai P.W.3 and the demeanor noted by the leamed trial Judge it is clear that the prosecutrix used to smile without reason. I am of the considered opinion that at the time of commission of ^xuai act, tiie prosecutrix was, due to unsoundness of mind, unable to understand the nature and consequence of the sexual act being committed by the appellant wjth her. Neither her being naked nor the fact that she was smiling during •rfie sexual intercourse would, in the aforesaid circumstances, amount to her free consent. 12. There is absolutely no material on record to show that the cppetlant and the prosecutrix were in love with each other and were on visiting terms. On the contrary, the testimony of Narendra famar P.W.l snd t)evkunwar P.W.2 clearty shows that the two families were not even on talking terms due to the fact that mother of the appetlant had atteged that Devkunwar was a witch. In these circumstances, it cannot be comprehended that the prosecutrix would have called the appellant at her rooro at the dead of night for having sexual intercourse or had knowingly and of her own free wit! consentect to the sexual intercour^. Since the svidence led by the prosecution is wholly unrebutted, in the facts and circumstcnces mentioned nbove, it is estabtished that at the time of commission of sexual act by the appellcint, the prosecutrix was, by reason unsoundness of mind unable to understand the nalure and consequences of 1+ie sexual act to which she did not resist. 13. Having thus considered the evidence !ed by the prosecution in its entirety, I am of the considered opinion that the contention of the !earned counsel for the appellant must be rejected in toto. 14. In the result, Conviction of the appellant under Sections 450 and 376 I.P.C. ond -Hie sentence awarded by the learned trial Judge thereunder are wel! founded and do not call for any interference. The appeal is dismissed. ,-——. Sdl- D"'P Raosaheb Deshmukh Judge