Ram Dayal Gada v. State Of C.G.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.377 of 2002 Ramdayal Gada, son of Shri Sadanand Gada, age 28 years, occupation labour, R/o Gadhphuljhar, P.S. Basna, Tahsil and District Mahasamund, Chhattisgarh ---- Appellant versus State of Chhattisgarh through Police Station Basna, District Mahasamund, Chhattisgarh --- Respondent For Appellant :

Shri C.R. Sahu, Advocate For Respondent :

Shri Satish Gupta, Govt. Advocate Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board 16.7.2018 1.

This appeal is directed against the judgment dated 5.3.2002 passed by the 1st Additional Sessions Judge, Mahasamund in Sessions Trial No.204 of 2001 convicting and sentencing the Appellant as under:

Conviction Sentence Under Section 450 of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.300/- with default stipulation Under Section 376(1) of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.300/- with default stipulation 2.

Prosecution case, in brief, is that the prosecutrix (PW4), a married woman, age about 26 years, was alone at her house on 28.4.2001.

Her husband had gone to Raipur and her in-laws were also not present at the house. It is alleged that at about 10:00 a.m., she was cooking food. At that time, the Appellant entered her house and tried to catch her hands. Despite being protested, he forcibly committed sexual intercourse with her and she did not shout because he had threatened her of life. After committing sexual intercourse, when he started to go out, her father-in-law returned home. She told him about the incident. A village meeting was called in which the Appellant accepted his guilt. Thereafter, First Information Report (Ex.P6) was lodged by her on 30.4.2001. She was medically examined by Dr. Chandra Kiran (PW7). Her report is Ex.P15 in which she did not find any injury on the body of the prosecutrix. She found that the prosecutrix was habitual to sexual intercourse.

The Appellant was examined by Dr. N.K. Agrawal (PW3). His report is Ex.P4 in which he found the Appellant to be capable of committing sexual intercourse. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a chargesheet was filed against the Appellant for offence punishable under Sections 450 and 376 of the Indian Penal Code. Charges were framed against him under Sections 450 and 376(1) of the Indian Penal Code.

3.

In support of its case, the prosecution examined as many as 7 witnesses. Statement of the Appellant was recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt, pleaded innocence and false implication. 2 witnesses have been examined in his defence.

4.

After trial, the Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal.

5.

Learned Counsel appearing for the Appellant submits that from the statement of the prosecutrix, it seems that she was a consenting party. Therefore, no offence under Sections 450 and 376(1) of the Indian Penal Code is proved against the Appellant. Hence, the Appellant deserves acquittal.

6.

Per contra, Learned Counsel appearing for the State opposes the arguments advanced on behalf of the Appellant and supports the impugned judgment of conviction and sentence. He submits that on the basis of the statement of the prosecutrix, the offence alleged against the Appellant is proved. He further submits that in the village meeting also, the Appellant had admitted his guilt. Therefore, the Trial Court has rightly imposed the conviction upon the Appellant.

7.

I have heard Learned Counsel appearing for the parties and perused the record with due care.

8.

The prosecutrix (PW4) has stated that at about 10:00 a.m., she was taking out food and her child was playing outside. At that time, the Appellant entered her room and caught her breast. When she shouted, he threatened her of life. Thereafter, he took her inside the room, caused her to fall down and torn her blouse. Thereafter, he started committing sexual intercourse with her. Her child, aged about 4 years, having seen the incident, weeping, went out. At that

time, her father-in-law reached there. He saw the Appellant going out of the house. Thereafter, she told about the incident to her father-in-law and mother-in-law. A village meeting was called in which the Appellant admitted his guilt. Thereafter, she lodged a report (Ex.P6). During cross-examination, she has admitted that the Appellant is a cousin of her husband. She has further admitted that her blouse was not torn by the Appellant nor did the buttons of her blouse were broken. In paragraph 12, she has stated that at the time of incident, she had shouted very loudly, but nobody had come there. She has further admitted that the Appellant had not kept any knife with him, but he had threatened her that he will kill her with a knife. In paragraph 20, she has stated that bangles of her hands had broken, but she had not reported about this in the FIR nor any bangle was seized.

9.

Dalganjnanand (PW5), father-in-law of the prosecutrix has stated that on the date of incident, he had gone out on his work. He returned home at about 10:00 a.m. On return, he saw that her grand daughter was weeping in the courtyard. At that time, he saw that the Appellant was coming out from his house. Inside the house, the prosecutrix was present. She had worn a petticoat only and her blouse was torn. On being asked, she told him that the Appellant had forcibly committed sexual intercourse with her. He has further stated that a village meeting was called in which the Appellant was called and asked about the incident. The Appellant had stated in the meeting that he was called by the prosecutrix, therefore, he had gone to her house. This witness has further stated that the prosecutrix had denied about the statement of the Appellant. Thereafter, the Appellant had submitted in the meeting

that he had committed mistake. In cross-examination, this witness has stated that he, his wife and his son (husband of the prosecutrix) had accepted Diksha (ordination) from a Sadhu (Saint).

10.

Kotwar Degreelal (PW1) has stated that the Appellant was called in the village meeting. First, the Appellant kept mum, but, thereafter, he submitted that he had committed mistake. This witness has not stated that the Appellant had admitted in the meeting that he had committed a forcible sexual intercourse with the prosecutrix. 11.

Hemsagar (PW2) has not supported the case of the prosecution and has been declared hostile. Dr. N.K. Agrawal (PW3) examined the Appellant. He has stated that he gave his report Ex.P4 in which he found the Appellant to be capable of performing sexual intercourse. Dr. Chandra Kiran (PW7) has stated that she examined the prosecutrix and gave her report Ex.P15 in which she found no injury over any part of the body of the prosecutrix and she found that the prosecutrix was habitual to sexual intercourse. Assistant Sub-Inspector J.P. Chandrakar (PW6) has stated that he investigated into the offence in question.

12.

A minute examination of the above statements of the witnesses makes it clear that though the prosecutrix has stated that the Appellant had committed forcible sexual intercourse with her, her statement is not reliable because from her statement and from the statement of her father-in-law Dalganjnanand (PW5), it is clear that when her father-in-law reached home, he saw the Appellant going out of the house. At that time, the prosecutrix was inside the house

in a petticoat. The prosecutrix has admitted that neither her blouse was torn nor were the buttons of the blouse broken. As per her statement, her bangles were broken, but no bangle was seized from the spot. From the statement of Dalganjnanand (PW5), father-in-law of the prosecutrix, it is clear that the husband of the prosecutrix had accepted ordination from a saint and had gone out. The incident took place at about 10:00 a.m. It does not appear to be natural that the Appellant would have forcibly entered the house of the prosecutrix and committed a forcible sexual intercourse with her at about 10:00 a.m. Had the sexual intercourse been committed with her forcibly, she would have shouted and resisted the Appellant, but she did not do so and no injury was found on her body.

Even if for the sake of argument it is considered that in the village meeting, the Appellant admitted the guilt, from the statement of Dalganjnanand (PW5), father-in-law of the prosecutrix, it is clear that the Appellant had gone to the house of the prosecutrix on her being called. In these circumstances, even if the Appellant admitted the guilt in the village meeting, there is no evidence on record to establish that he committed forcible sexual intercourse with the prosecutrix. Looking to the above evidence, it seems that the prosecutrix was a consenting party. Therefore, the offence alleged against the Appellant under Sections 450 and 376(1) of the Indian Penal Code is not proved beyond reasonable doubt.

13.

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges framed against him.

14.

It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months in terms of the provisions contained in Section 437A of the Code of Criminal Procedure.

15.

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance. Sd/- (Arvind Singh Chandel) Judge Gopal