Chattisgarh High Court

Sawarath Ram And Others vs State Of Chhattisgarh on 27 October, 2021

                                        1

                                                                       NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR
                       Order Reserved on 16/09/2021
                       Order Delivered on 27/10/2021
                            CRA No. 1094 of 2003
     1. Sawarath Ram S/o Subedar Ram aged about 21 years.
     2. Laxman Ram S/o jaipali aged about 40 years.
     3. Ishwar Ram S/o Subedar Ram aged about 18 years.
     4. Brijmohan S/o Dewaram aged about 20 years.
          All are R/o Village - Chhichli, Police Station- Bagicha, District -
          Jashpurnagar, Chhattisgarh.
                                                              ---- Appellants
                                      Versus
      State of Chhattisgarh, Through : district Magistrate, Jashpurnagar,
       District- Jashpurnagar, Chhattisgarh.
                                                            ---- Respondent

For Appellants                    :     Ms. Indira Tripathi, Adv.
For State/Respondent              :     Mr. Ishwar Jaiswal, PL.

                   Hon'ble Smt. Justice Rajani Dubey
                                 C A V Order

Date : 27/10/2021

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 07.10.2003 passed by the learned IInd Additional Sessions Judge (F.T.C.), Jashpur, District- Jashpur (C.G.), in S.T. No. 04/2003 (Now 12/2003) whereby, the learned IInd Additional Sessions Judge convicted and sentenced the appellants as under :-

S. No. Conviction Sentence S.I. for 1 month and fine of Rs. 500/- in

1. U/s 341/34 of IPC default of fine additional S.I. for 7 days.

R.I. for 5 years and fine of Rs. 1,000/- in

2. U/s 366/34 of IPC default of fine additional S.I. for 1 month.

2. Brief facts of the case are that the prosecutrix was married with

appellant No. 1 Sawarath but before 'GAUANA' ceremony the appellant No. 1 and prosecutrix mutually agreed to reside separately and accordingly in the village meeting the appellant No. 1 and prosecutrix wrote a 'CHHOD CHHUTTI LETTER' (Ex.D/1). Thereafter, the prosecutrix was married with Manoj (PW-8) and she started to reside with him. On the date of incident i.e. 03.10.2002, she went along with her husband Manoj to her in-laws house. It is alleged that on the way near village Petha appellants forcefully restrained her and forcefully abducted her from the bus and took her to village Chhichli. Thereafter, they took her to the forest where appellant No. 1 Sawarath committed rape on her. Information regarding the same was given to the parents of the prosecutrix and they went along with the villagers to the forest and when they came to there appellant ran away. Village meeting was convened and complaint was made vide Ex.P/8 on the basis of which FIR Ex.P/9 was lodged by K.P. Gupta (PW-12) and investigated the matter.

3. In order to collect evidence, the Investigating Officer, seized petticoat of the victim vide Ex.P/1 and sent for medical examination vide Ex.P-10, in which human sperm like material found and advised for chemical analysis vide Ex.P/4. Victim was sent for medical examination to Community Health Centre, Bagicha vide Ex.P/2 be examined by a lady doctor. Smt. Vinodini Bakhla who conducted the genital examination of the victim in the Community Health Centre and gave her report vide Ex.P/3 in which she opined that no definite opinion can be given regarding rape because victim is a married lady. The accused was sent to the Community Health Center, Bagicha vide Ex.P/5 to examine whether he is capable of performing sex, and the positive report was received vide Ex.P-6. The underwear of the accused was seized vide Ex.P/7'A' and report was given vide Ex.P/7. Spot map was prepared vide Ex.P/20. The accused/appellants were arrested vide Ex.P/14, P/15, P/16 and P/17 after finding sufficient evidence against them. After completion of investigation charge-sheet was filed under Sections 341, 363 and 376(g) r/w Section 34 of the IPC before the competent Court, where learned trial Judge on the basis of charge-sheet framed charges under Sections 341/34, 366/34 of IPC against the appellants and Section 376(g) especially against appellant No. 1 Sawarath.

4. So as to hold the accused/appellant guilty, the prosecution has examined as many as 14 witnesses. Statement of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case.

5. Upon consideration of oral and documentary evidence the trial Court acquitted appellant No. 1 Sawarath from the charge under Section 376 and held that the prosecution has established the guilt of the accused/appellants under Sections 341/34 and 366/34 of IPC and sentenced them as mentioned above. Hence, this appeal.

6. Learned counsel for the appellant submits that impugned judgment of conviction and order of sentence is contrary to law and facts available on record. He next submits that the learned trial Court convicted the appellants under the aforesaid Sections, though from the evidence of the prosecutrix and her husband it does not establish the case of the prosecution, therefore conviction of the appellants is not sustainable. The evidence of the prosecutrix is not trustworthy and therefore the alleged offence under Sections 341/34 and 366/34 of IPC could not be established in light of the evidence of Manoj Ravi (PW-8) and Edward Lakada (PW-11) bus conductor/driver. He further submits that the learned trial Court has failed to see the family relation between the prosecutrix and the appellant No. 1, and the learned trial Court has summarily rejected the defence of the appellants which they kept for their innocency and established that sister of the appellant No. 1 was married with the cousin brother of the prosecutrix and the cousin brother of the prosecutrix without any reason left the sister of the appellant No. 1, due to aforesaid enmity, the prosecutrix has implicated the appellants in the alleged offence. He lastly submits that the trial Court did not appreciate the oral and documentary evidence properly, therefore, the impugned judgment of conviction is liable to be set aside.

7. On the other hand State counsel supported the impugned judgment of conviction and order of sentence.

8. Heard counsel for both the parties and perused the material available on record including the impugned judgment.

9. Mahanguram (PW-1) father of the prosecutrix has stated in his

statement as under;

2. xzke isBkxzke ds ikl pkjksa vfHk;qDrx.k esjh yM+dh dksuh&ye cl ls [khapdj mrkjs mlds lkFk ekjihV fd;s vkSj taxy ys tkdj NksM+ fn;sA fQj dgk mls esjh clarhckbZ dks xzke fNNyh ys vk;sa vkSj fQj jkr esa mls taxy dqNok unh ds ikl ds taxy esa NksM+ fn;sA fQj izgykn tks xzke jokj dk Fkk og vkdj fNNyh xzke ls vkdj crk;k fd pkjksa vfHk;qDrx.k yM+dh dks taxy dh rjQ Hkxk jgsa gSaA

He has stated in his cross-examination that;

5. esjh yM+dh dh lokjFk ds lkFk 'kknh gq;s yxHkx 8 lky gks jgsa gSaA Lor% fd lokjFk nks lky igys esjh yM+dh dks NksM+ pqdk Fkk vkSj nwljh 'kknh fd;k FkkA

10. Mahadev (PW-3) has stated in his statement in para-3 that Manoj returned from there, came to village Rawani and informed about the incident.

11. Prosecutrix (PW-7) has stated in his statement as under;

1. yxHkx 8 eghuk gks jgs gSa] lokjFk ls igys esjh 'kknh gq;h Fkh fdarq esjk xkSuk ugha djk;kA og nwljh 'kknh dj fy;k nks lky fcrus ij esjs firk fQj xkao esa iapk;r cSBk;s ogka lokjFk Hkh vk;k Fkk vfHk;qDr lokjFk ls ogka iwNus ij fd og eq>s j[ksxk ;k ugha rks vfHk;qDr lokjFk us j[kus ls badkj dj fn;kA bl laca/k esa NksM+ fpV~Bh fy[kdj ogka fn;kA

2. T;ksfr;k R;kSgkj ekukus ds ckn eSa vius ifr ds lkFk uhye cl esa okil tk jgh Fkh xzke igSBk esa vfHk;qDr lokjFk] y{e.k] bZ'oj vkSj c`teksgu uhye cl ls eq>s [khapdj uhps mrkjsA esjs ifr dks bu yksxksa us nks&rhu >kiM+ ekjkA

She has also stated in her cross-examination as under;

7. eSa ;g ugha crk ldrh gwa fd ftl xkM+h esa tk jgh Fkh og ml fnu Hkjh gq;h FkhA bl loky dks nks&rhu ckj nqgjk;k x;k rc xokg us ,slk tcko fn;kA ml fnu cl dh fVdV dVok;s FksA

8. iz-ih-&8 dkxt dks fn[kdj xokg ls iwNk x;k fd ;g fy[kki<+h fdlus dh Fkh] xokg dk tokc gS fd irk ughaA ml dkxt esa D;k fy[kki<+h dh x;h Fkh eSa ugha tkurhA

12. ;g lgh gS fd vfHk;qDr lokjFk ls esjh nq'euh gks x;h gSA ;g lgh gS fd lokjFk ls nq'euh gq;h gS bl dkj.k eSa mls tsy Hkstuk pkgrh gwaA ;gh lgh gS fd esjs lkFk dksbZ cykRdkj dHkh ugha gqvk gS fQj dgha fd lokjFk fNNyh okyk ckykRdkj fd;k FkkA

14. eSa ugha crk ldrh fd iz-Mh-&3 ds dkxt ds dk;Zokgh ds le; eSa mifLFkr Fkh ;k ughaA iz- Mh-&4 ds v ls v Hkkx ij esjs gLrk{kj gSaA

19. ;g dguk xyr gS fd esjh nwljh 'kknh gksus ds ckn lokjFk fQj 'kknh fd;k gS Lor% dgh fd lokjFk igys 'kknh fd;k gSA ;g lgh gS fd tc lokjFk 'kknh fd;k rc mlls nq'euh gks x;hA lor% dgh NksM+ i= fy[kus ds ckn ls nq'euh gq;h gSA

12. Husband of the prosecutrix Manoj Ravi (PW-8) has stated in his cross-examination as under;

loky & xokg dks iz-Mh-&2] ls ysdj iz-Mh-&4 rd dk dkxt fn[kykdj iwNk x;k fd ;s fNNyh esa cus gSa \

tokc & xokg dk tokc gS fd ;s dkxt dgka cuk eSa ugha tkurkA

iz-Mh-&4 ij ^^c^^ ls ^^c^^ Hkkx esa esjs nLr[kr gSaA dkxt dks i<+dj] le>dj eSa nLr[kr djrk gwaA

13. It is written in Ex.D/2 that ; " clarh ckbZ us jkelokjFk vius ifr ds ?kj ls lqcg eSnku djus ?kwers ?kkers jksM ds if"pe esa yM+dh xbZ FkhA mlh oDr [email protected]] ir:@Vqdqj vk;sA xqUgs'oj ;kno dk cqysV esa fNNyh ls jkSuh ys x;sA ftldk egaxq oxSjg us C;ku fyf[kr is'k fd;k gS fd clarh ckbZ dks dNqok ukyk ls yk;k x;k gSA rks egaxq oxSjg dk fyf[kr C;ku xyr gS ge yksx clarh dks fNNyh jkelokjFk ?kj ls if'pe jksM+ rjQ ls cqysV esa ys tkrs ns[kk gSA tks lgh ,oa lR;

gSA" It is also written in Ex.D/3 that ; "clarh ckbZ ds lkFk jkelokjFk dh 'kknh tkfr jhfr fjokt ds lkFk gqvk Fkk ftldk vkt rd fdlh izdkj dk NksM+ i= ugha fy[kk gSA ,oa clarh ckbZ us NksM+ i= dksVZ esa is'k fd;k gSA og Qkyl gSA og NksM+ i= dks fNNyh ds iap ,oa gjhtu tkfr lekt dk dksbZ O;fDr ugha tkurs gSaA rFkk NksM+ i= ds laca/k esa dksbZ cSBd ugha gqvk gSA "

14. Learned trial Court has not relied upon defence documents Ex.D/2 and Ex.D/3, which has been signed by Manoj (PW-8) husband of the prosecutrix. Prosecutrix has also stated that after second marriage of appellant Sawarath there was enmity between them. After appreciating the oral and documentary evidence learned trial Court has acquitted appellant Sawarath from the charge under Section 376 of IPC. Hon'ble the Supreme Court in the matter of Kavita Chandrakant Lakhani Vs. State of Maharashtra and another reported in AIR 2018 SC 2099 has held in para-11 as under ;

11. Apart from this, to constitute an offence under Section 366, IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring

an accused under the ambit of this penal section. So far as charge under Section 366, IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366, IPC, the Court cannot hold the accused guilty and punish him under Section 366, IPC.

15. In the present case also, 8 years prior to marriage with Manoj, appellant Sawarath and prosecutrix were married and this fact was also admitted by the prosecutrix, her father and her husband. Prosecutrix has also stated about her enmity with appellant Sawarath, therefore, the charge punishable under Section 366 of IPC is not maintainable. Evidence of the prosecutrix is not reliable, thus the other charges punishable under Sections 341 and 363 of IPC are also not proved against the appellants beyond reasonable doubt.

16. As discussed above, offence under Sections 341/34 and 366/34 are not sustainable in the eye of law, therefore, conviction and sentence of appellants is set aside. Accordingly, the appeal is allowed. The accused/appellants are acquitted of the charges levelled against them. As the appellants are on bail, they need not surrender and their bail bonds and sureties stand discharged.