Kishor Albert And ANR. v. State Of Chhattisgarh And ANR.
aw N HIGH COURT OF CHHATTISGARH BILASPUR '
Cr. Apgeal No. 529 of 2001 Kishor Albert & another
Versus
State of Chhattisgarh & another Post for pronouncement of the judgment on 3916/2016 8diPrit'mker Diwakgr M Judge i l?1
L) 'W HIGH COURT OF CHHATI'ISGARH BILASPUR / CRA No. 529 nf 7nn1 VS/o 1.
Kishor Albert, aged 32 years, Ganga Ram Christian.
2.
Smt. Parveen Bai, aged 25 years, wife of Kishor Albert. Both residents of Chunabhatti, Gudhiyari, Raipur, P.S. Gudhiyari, Raipur, District Raipur (Chhattisgarh) ---- Appellants (In Jail Custody)
Versus
.
State Of Chhattisgarh, through Police Station. Gudhiyari, Raipur.
.
Kunti Bai Kawar, D/o Late Rajaram Kawar, aged 15 years, through natural guardian Smt.
Agrotin Bai, resident Chunabhatti, Gudhiyari, Raipur, Respondents/Prosecution I Sushri Sangeeta Mishra, Advocate.
For Respondent:
Shri Ashish Shukla, GovernmentAdvocate ForAppellants:
Hon'ble Shri Justice Pritinker Diwaker C A V Judgment 5...106/201 s 1.
Challenge this appeal the judgment of conviction order of sentence dated 23.2.2001 passed Special Judge, Raipur Special Sessions Trial No.10/2000 convicting the accused/appellant No.1 '(for short 'the IPC') & under Section lndian Penal Code No.2 under Section r/w Section of IPC sentencing each them undergo R.l.
1O years fine Rs.5000/-.
2.
As per prosecution case, the prosecutrix (PW-1), aged about 14-15 years, was working as maid-servant in the house of accused/appellants.
in the
night 25.12.1999 as husband accused/appeHant No.2 i.e.
No.1, was on night duty, accused/appellant No.2 asked the prosecutrix to stay with her whole night on the pretext that she had aiready obtained permission of her mother in this regard. in the night at about 12.30 a.m. while she was sleeping, she felt some removing her clothes and then she woke up and saw that accused/appellant removing her Salwaar and her wife (accused/appellant No.2) had caught hold of her both the hands.
Accused/appellant No.1 was having knife his hands.
Accused/appellant No.1 after removing her clothes committed forcible sexual intercourse with her in the presence of accused/appellant No.2.
Next morning the prosecutrix returned home but did not disclose incident anyone as she was threatened accused/appellants.
However, 2-3 days thereafter disclosed incident neighbourers, who in turn informed her parents and after deliberation, a decision taken lodge report against accused/appellants.
Accordingly, FIR (Ex.P-1) lodged on 1.10.2000 based on which offence under Sections (2) (g) IPC Section (1) (xii) Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The sent medical examination which conducted by Dr. (Smt.) A. Bose (PW-13) on 2.1.2000 vide Ex.P-12A and she opined that no opinion regarding recent sexual intercourse could be given.
She advised radiological test prosecutrix.
Accused/appellant No.1 was also medically examined by Dr. N.S. Gupta (PW-10) who gave his report of Ex.P-1O opining him to be fully capable of having sexual intercourse.
.On completion investigation, charge sheet filed against accused/appellant for the offence punishable under Section 376 (2) (g)
IPC & Section (1) (xii) of the Act, 1989, however, the trial Court has framed the charges under Section 376 IPC & Section 3 (2) (v) of the Act, against under Section 376/114 IPC against accused/appellant No.2.
4.
The prosecution order bring home charge ieveiied against accused/appeiiants examined witnesses.
Statements accused/appellants were recorded under Section 313 of Cr.P.C. in which they abjured their guilt and pleaded innocence & false implication. .
After hearing counsel parties considering material available on record, trial Court impugned judgment, while acquitting the accused/appellants of the charge under Section 3 (2) (v) of the Act, 1989, convicted & sentenced them as described above. 6.
Learned counsel for accused/appellants submits that; ~ a highly improbable story has been put forth by the prosecutrix that she was subjected to rape by accused/appellant No.1 in presence of his wife i.e. accused/appellant No.2.
7.
Smt. Agrotin Bai (PW-3) is the mother of the prosecutrix.
She has stated working as maid-servant house accused/appellants.
On the date of incident the prosecutrix fell asleep at the house of accused/appellants. After 2-3 days the ladies of locality told her that accused/appellant No.1 had committed rape with the prosecutrix. She has further stated that at the instance of the people of locality, she along with the prosecutrix went to the police station where the prosecutrix had lodged the report against the accused/appellants. She has admitted that the prosecutrix did not disclose anything to her of her own.
cross-examination this witness stated after incident, prosecutrix had refused to go to the house of accused/appellants to work
when asked reason not going house accused/appellant to work as domestic help, the prosecutrix did not say anything and simpiy refused to go there.
- there inordinate delay six days lodging report prosecution has not offered satisfactory explanation for such delay. '
The medical evidence does not support the prosecution case as the doctor medically examining had not noticed any external or internal injury 0n body including private part and opined that no definite opinion regarding recent sexual intercourse could be given.
According prosecutrix, written report prepared Santosh Yadu (PW-2) police station itself and thereafter the same given police, whereas according investigating officer, the prosecutrix came with written report. Conduct of the. prosecutrix was very unnatural where even she did not disclose incident mother who came know about incident through neighbourers.
Apart from this, there are many contradictions statement of the prosecutrix which go to show an entirely false story been created implicate accused/appellants in the case in hand.
Appellant No.2 being the woman cannot be charged for commission of offence of rape.
8.
On the other hand, supporting the impugned judgment learned counsel for the State submits that present is the case where accused/appellant had committed rape on the prosecutrix, aged about'14 to 15 years, with the help of accused/appellant No.2 and therefore their conviction strictly in accordance with law and there is no infirmity i'n the same.
The
prosecutrix (PW-1) has categorically stated as to in what manner she was ravished by accused/appeHant No.1, as well as the act of appeHant No.2. Delay lodging FIR been satisfactorily explained prosecutrix wherein she has stated that on account of shame and threat extended by appellants, she could not lodge the report in time. He further submits even if medical evidence does not support prosecution case, it will not make any difference.
Plea of false implication on account of not vacating the tenanted accommodation by them has not been established defence by adducing cogent evidence.
Most importantly, no question was put to the prosecutrix regarding this defence by the appellants.
He further submits that if it is found that conviction of No.2 under Section IPC not proper, she can certainly be convicted under Section 114 IPC. 9.
l have heard learned counsel for the parties perused material available on record.
10. The prosecutrix (PW-1) has stated that on the fateful night at the request No.2, stayed house.
When sleeping, somebody caught hold of her and therefore she woke up. She saw that accused/appellant No.2 had caught hold of her both hands and thereafter she tied her both hands from a piece of cloth. At that time there pitch-dark.
Accused/appellant removed Salwaar committed forcible sexual intercourse with her and after committing rape, he fell asleep. She has further stated that accused/appellant No.2 did not allow her to go to her home and bolted the door and therefore she asleep with the daughter of accused/appellants.
She has further stated that next morning she returned her house and after taking bath went to the house of Mohan Singh to work.
However, she has not disclosed the incident to
,, h~4.
> v-a parents.
After 2-3 days incident, informed about incident to her friend Monica and when she did nothing about it, then she narrated entire incident parents ail people locality.
Thereafter the matter was reported to the police. She has further stated that written report was lodged in the police station andthe same was prepared by Sunil (PW-2).
ln the cross-examination she has stated that she has reiterated the things told by her in the examination-in-chief.
There are minor contradictions in the COurt statement of this witness from that of her diary statement that they seems to be of insignificant. .Sunil Yadu (PW-2), who was the then Corporator of the area, has stated that he has prepared the written report (EXP-1) in the manner as was told t by the prosecutrix.
ln the cross-examination also this witness has stated the same thing as in the examination-in-Chief.
12. Smt. Usha Yadav (PW-4) appears to be the neighbour of the prosecutrix in whose presence incident was disclosed other people locality.
l3. Smt. Ratna Bai (PW-5), Smt. Vimla Bai (PW-6), Smt. Saraswati Bai (PW7) & Smt. Pushpa Bai (PW-8) are the neighbourers of the prosecutrix to whom incident was disclosed by the prosecutrix. 14.Amrit Das (PW-9) is the witness of seizure memos (EXP-7 & Ex.P-8 y ) b which a knife & underwear was seized from accused/appellant No.1. 15.Dr.
N.S.
Gupta (PW-10) doctor who medically examined vide EXP-9 and opined that he was able to do sexual intercourse with opposite sex.
16.Shoaib Ahmed Khan (PW-11) is the investigating officer and he has duly supported the prosecution case.
17. Dr. K.L. Sinha (PW-12) is the Assistant Sub inspector who did the part of
the investigation.
18. Dr. (Smt.) A. Bose is the witness who medicaHy examined the prosecutrix vide EXP-12A.
According to this witness, she did not notice any mark of injury over the body including private parts, pubic hair scanty and vagina easily admitting two fingers.
No definite opinion regarding recent sexual intercourse could be given by this witness.
She has advised for ossification test for confirmation of age.
19. Dr. R.P. Singh (PW-14) who conducted the radiological examination ofthe prosecutrix has stated vide report EXP-19 that her age at the relevant time was between 14 and 15 years but this age is not decisive and there may be variation of two years on either side. 20.Accusedlappellant No.1 examined himself as DW-1 stated that the prosecutrix was maid-servant in his house. On the date of incident none has come to his house to work. On 1.1.2000 when he was in the press, people of vicinity came there, assaulted him and thereafter took him and his wife to the police station on the ground that he has committed rape - with prosecutrix, but nothing like that was done him.
He further stated since he was not vacating tenanted house, his landlord had threatened him that he would implicate him and therefore he feels that it his landlord who had falsely implicated him in the crime question.
ln the cross-examination he has stated that he does not have any animosity with the prosecutrix.
21. ln the present case conviction of accused/appellant is based on the sole testimony of the prosecutrix and the core question before this Court for determination as whether evidence inspires i confidence or the same is tainted with suspicion of falsity. 22.Minute scrutiny of material available on record clearly reVeals w masWw
prosecutrix has categorically stated her Court statement that on date of incident, accused/appeHant No.2 asked her to stay at her house in night on the pretext of her husband (accused/appellant No.1) being out at the relevant time.
The prosecutrix agreed No.2 and slept in her house.
While she was sleeping, she felt someone removing clothes then woke up saw accused/ appellant No.2 had caught hold of her both hands, removing Salwar thereafter he committed sexual intercourse with her against her wishes.
She has further stated that after commission bad work, when began leave home, accused/appellant No.2 did not let her to go to her home and therefore she slept with the daughter of accused/appellants on the bed. The fact stayed at house accused/appellants fateful night established from statement of Agrotin Bai (PW-2), mother of prosecutrix, who has stated that accused/appellant No.2 had informed her that the prosecutrix would stay at her house night.
This witness has further stated that her daughter returned in the morning told now onwards will not go house accused/appellants to work.
She asked the reason but she did not tell anything.
This witness mother of the and would not ordinarily subscribe to a false story of sexual assault involving her own daughter and thereby putting at stake reputation of the family and jeopardizing the future of her daughter.
This apart, no reason has been proved, not even suggested by the defence during the course of crossexamination of the prosecutrix or Agrotin Bai (PW-2) as to why they would falsely implicate accused/appellants roping them false charge rape.
g;
m E§r ix k "W-
True it is that medical evidence or report of FSL do not support the case of the prosecution. That obviously is on account of the fact that the clothes' had been washed prosecutrix & appellant had taken bath after the occurrence. The prosecutrix was examined after six days of incident.
these circumstances if no incriminating evidence found by the Chemicai Analyst or the doctor, that is not surprising. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences.
lt often happens that such victims do not complain against such illegal acts immediately b \of factors like fear or shame or e e uncertainties but r ir' parents or husbandsin case e e adverse consequence which, they married girls or women an apprehend, would follow disclosure such acts.
ln present case also, it h evidence due fear a prosecutrix did not informxher 'arents about the crime committed on her.
However, after some days when the accused/appellant again asked sexual favour from her as was done earlier, she decided to disclose the crime committed on her and accordingly the report was lodged. Thus, the facts and circumstances of case, the delay caused on the part of the prosecutrix in no way be held fatal to the prosecution. 23.Upon an evaluation of evidence available on record, this Court is satisfied hold that the prosecutrix (PW-2) is a witness of truth.
Her testimony inspires confidence and the trial Court has rightly held that sexual assault amounting to rape was committed on her by accused/appellant No.1. 24.As regards submission counsel accused/appellants accused/appellant No.2 cannot be convicted & sentenced under Section 376/114 IPC, from evidence on record it apparent that accused/ 7v?
appellant No.2 on pretext of her husband being out at the relevant time, asked prosecutrix to stay whole night at her house and when agreed No.2, appeared before the all of a sudden and committed forcible sexual intercourse with her and at the time when offence of rape was being committed by accused/appellant No.1, the accused/appellant No.2 was holding both the hands of the prosecutrix.
Thus, it is apparent that No.2 actively facilitated the commission of crime by accused/appellant being personally present there and therefore she is liable to be convicted underSection 114 IPC and nOt under Section 376/114 IPC merelybe being a lady cannot execute ca offence.
25. For the foregoing reasons 'al is allowed in part.
Conviction and , e sentence of accused/ap under Section IPC are hereby pe confirmed.
Conviction of'aCCuSedf/appellant No.2 is altered from Section 376/114 IPC Section IPC, however, sentence of RI 1O years awarded trial Court maintained view fact offence abetted was the one punishable under Section 376 IPC for which R.l. for 10 years has been awarded by the trial Court to the main accused i.e. accused/appellant No.1.
IQ Sd/- (Pritinker Diwaker) J U D G E roshan