Ashwini Raatre, S7o Mohan Raatre v. State of Chhattisgarh
Case at a glance
- Decided
- 26 Oct 2009
Provisions considered
- Code of Criminal Procedure, 1973 s. 374
- Indian Penal Code, 1860 ss. 363, 366, 376, 506, 511
Judgment
Shri J.R. Verma counsel for the appellant. Shri G.D. Waswani GA for the respondents/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (?6.10.2009) and propriety of Additional Sessions Judge, The appellant in this appeal is challenging the iegality, validity the judgment dated 17.7.2CX)6 passed by the (FTC), Raipur in Sessions Triat No. 196/2006 convicting the accused/appellant under Sections 363 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 200, and rigorous imprisonment for seven years with Tine of Rs. 300 respectively, with default stipulations. Brief facts of the case unfolded by the prosecution are that on 2. 19.3.2006 at about 2.30 p.m. prosecutrix (PW-12) \was taken by the appellant from Imlibhata to village Tarashiv, Tilda, Bhatapara and ultimateiy to Itwari (Nag^ur). Missing report Ex. P-12 was lodged on 21.3.2006 by Ganesh Ram (gW-13), the father of the prosecutrix. Further case of the prosecutron is that on 27.3.2006 the prosecutrix was brought back to her village by her brother in faw and other retatives and thereafter on 29.3.2006 her statement was recorded by the police in which she stated that at Nagpur the appeltant and she herseif stayed for two nights where appellant subjected her to rape On the basis of thisstat^nent of the prosecutrix, the Station House OfRcer of poltee station, Kharoraregistered the offences punishable under sections 3^3, 36'6,376 and 506 of the Indian PenaL£ode, £vssss^9ys~ .§ m&: iS'SS' ^ -2.- \ against the appellant, vide FIR Ex. P-20. Thereafter, on 29.3.2006 she was sent for medical examination to Community Heaith Centre, (PW-17) examined her and vide Tiida where Dr. Mlna Samuel medical report Ex. P-22 she opined that hymen of the prosecutrix was ruptured, two fingers easiiy entered her vagina, and as the prosecutrix was habitual tp sexual regarding instanf sexual irifSrcourse could be given. intercourse, no definite opinion
So as to prove the guilt of the accused, prosecution has 17 witnesses. Statement examined as' many accused/appeliant was also recorded undersection313 oftheCode Criminal Procedure in which he denied the charges tevetled against him and pleaded his innocence and false implication in the case. , After hearing the parties the trial Court has convicted and 4. sentenced the accused/appellant as mentioned in paragraph No.1 of this Judgment and acquitted him of the offences punishable under sections 366 and 506 of the Indian Penal Code. Hence this appeal.
Counsel for the appellant submits that the trial Court has landed itself in the legal error while convicting and sentencing the accused/appellant for the offences punishable under sections 363 and 376 IPC for the reason that the prosecutrix has not stated in her evidence that she was subjected to rape by the appetlantand that the penetration.which is a sme qua non to establish the commission of rape, took place. He fi)rther submits that unless penetration is estabiished, conviction under segtion 376 IPCcannot be warranted and it can be safely presumedtB'at the prosecutrix was not subjected to rape. According to him the prosecutrix has merely stated that the appellant had done "Galat Kaam" with her whereas in her police recorded under Section 161 of the Code of Criminal statement Procedure she has stated that appellant committed rape on her. He submits that the prosecutrix has ,not disclosed anything to her father, grand father or any other relatives about mother, .commission of rape by the appellant.
She had also not disclosed "31:!:, -3- \ about her having been subjected to rape by the accused/appellant, to Manga! Chand (PW-14) who had brought her back from Nagpur. According to him, the prosecutrix for the first time had disclosed the incident of rape in fhe Court only and therefore her statement regarding commission of rape cannot be said to be credible and trustworthy. He further st^mits that the prosecutrix had sufficient .. opportunity to raise an aNtrm white she was being taken to Nagpur & • . and other places but surprisingly she kept mum and did not even the matter to the poiice and thus solely on the basis of report statement of the prosecutrix the appellant cannot be convicted under section 376 of the Indian Penal Code. As regards the offence under section 363 of thelndian Penal Code, counsel for the appellant submits that the mother and father of the prosecutrix have not stated anything in their statement that the prosecutrix was taken away forcefully without their consent and therefore, the appellant cannot be convicted under section.363 of the Indian Penal Code also.
He further submits that when on the same set of evidence the appellant has been acqulttedof the offences punishable under sections 366 and 506 of the Indian Penal Code he cannot be convicted under sections 363 and 376 of the Indian Penal Code without there being any other reliable and ciinching evidence in that regard. According to him when the statement of the prosecutrix is not supported by any other evidence, minute scrutiny of her evidence is required in the case. He subnrtits that in this case merely on the basis of statement 6f the prosecutrix the appellant deserves to be acqyitted. He submits that Dr. Mina Samuel (PW-17)who has medipally examined the prosecutrix has aiso not supported the case of the prosecution as she has categorically stated that the prosecutrix has not suffered any internal or externai injury. He also submits that the report of the chemical anaiyzer also does not support support of his submissiori counsel for the appellant places reliance on the judgments of the Supreme Court in the matter of Aman Kumar and anothervs.
State of Harvana reoorted in (2004) 4 SCC the case of the prosecution. In llt' B 'l % . III.! l^l- •II li..l;"';ki. -4- \ 379 sind in the matter of Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand) reDorted in (2006) 8 SCC 560 and submits that in both these cases it has been heid by the Apex Coyrt that penetration of maie organ into private part of victim/prosecutrix is a must to bring the offence under sectiori376 IPC into play. Accordingto him, in the present case, the pei|etration has not been established by the prosecution and therefol-e the appellant cannot be convicted under section 376 of the indian Penal Code. Counsel for the appellant has filed an affidavit of the father of the appellant to the effect that as after marriage the prosecutrix is leading a happy married life, liberai view may be taken and his sentence may be reduced to the period already undergone. In support of his submission he has relied upon a judgment of the Supreme Court in the matter of State of Punjab vs. Rakesh Kumar reported in (2008) 12 SCC 33. !n the case cited by him, the accused and the prosecutrix were in love with each other which ultimately culminated into the sexuai intercourse.
Repudiating the arguments advanced by the counse! for the appeilant, counsel appearing for the respondent/State supporting the impugned judgment of the triai Court submits that the prosecutrix has categorically stated in her evidence, reievant portion of which reads as under: 4' SIRWl' ^ 4^ •ElTai rCc!Q W RiW 1 uRWi^ "'llliy,-i ^>R few i ufftr q?t ^W^ «[Rift q? ^€f W ! 3IRMt ^ WR ^ST t i" "HcIcT ai<|ifl ^ 41 vf% 'ggit siN ^ w airar ^t W V-T^ ^ SKtft Vf tFV ^ aft 'AcfTOT 44 'TcRT It has been submitted by the counsel for the State that from this statement of the prpsecutrix it is'clear that she was subjected to rape It is argued^hat the prosecutrix is not required to by the appeltant. give the details as to the manner in which she was subjected to rape and no other meaning of the words used in her statement can be derived in sex-related offences. He submits that when the factum of the prosecutrix being minor on the date of undisputed, theory of consgnt becomes immaterial. Hesubmits that merely non-raising of aiarm by the prosecutrix after haying been ^Tdnapped does not make the appellant entitled for acquitta! remains incident ^i^-f?' \ because so many reasons such as threat etc. are there which could have not permitted her to open her mouth against the appellant. According to him, in her statement the prosecutrix has categorically stated that appelfant subjected her to sexual exploitation by putting in the absence of her under threat of life. Lastly he submits that injury on the body of.the proseeutrix as has been opined by the the appellant cannot claim doctor who examineEls'the prosecutrix, acquittai. i,. - ' Heard counsel
available on record including the judgment of the trial Court. the parties and perused the material Admittedly, at the time of commission of the offence i.e.
between 19.3.2006and 27.3.2006 the prosecutrix was a minor gir! as according to her school record (Ex. P-9) which is duly proved by Murlidhar Verma, Head Master (PW-8) her date of birth is 9.9.1990. The contention of the counsel for the appeliant that in the absence o£- the detailed narration of the incident of rape, the appellant cannot be convicted under section 376 iPC, is not acceptable to this court for the reason that she has categorically stated in her evidence that "st Nagpur accused did bad work with me. Foivsbly did bad work. ! Accused removed my clofhes and came to me, spread my thighs, refusedtiim to do bad work but in spite of this he dtd not conceded 1 to my request. Accused had mounted on me". Thus the prosecutrix has categoricaily stated the act of the accused/appellant in detail and therefore, the judgments cited by him are distinguishable on "Galat Kaam" used by the prosecutrjx in her facts.
The words evid'ence cannot be construei^'otherwise in the sex-related offences. The aforesaid decisions of the Supreme Court relied upon by the counsel for the appellant are of no help to the accused/appellantin the present case because in those cases the point involved was whether penetration was done or not and whether the offence alleged in that case wpuld fall under section 376/511 IPC, But, in the present case, th& prosecutrixhas categorically stated that she was subjected to physical relationshlp by the appellant and no further w 1^ -6- \ details regarding the manner in which the offence of rape was committed, are required from the prosecutrix. The other argument that the statement of the prosecutrb< is not supported by any other evidence is not acceptable to this court because it is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplic^,.after the crime.
There is no rule oflawthat her testimony cannot be^cted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In this case, the prosecutrix has givena vivid account of the entire episode as to how the accused sexually assaulted her and unless s, there are compelling reasons necessitating corroboration of statement of the prosecutrix, her testimony alone is sufficient to convict an accused under section 376 of the Indian Penal Code. Moreover, nothing has been elicited by the defence as to why the appellant has been falsely impllcated in this case and thus the stand of false implication taken by the accused/appellant is aiso not worth the medical acceptance. The other contention that report of the prosecutrix does not support the caseofthe prosecution is also not acceptable to this Court because the prosecutrix was forcibjy removed Jrorn her lawful guardlanship on 19.3.2006 and remained under the clutches of the accused/appellant till 27.3.2006 and she benefit found on her body after such a long intervai, was medically examined only on 29.3.2006 and if no injury has been it will not give any for in the sentence because of the fact that the prosecutrix is already married to some other man and fe teading a happy married life, cannot to the accused/appellant.
The leniency sought change the course of justice an^-the decision cited by the counsel for the appellant is absolutely c^tinct on facts as in the decision of the Supreme Court taken support of by the appeliant, the sexual intercourse was the culminating effect of love affairs existing between the accused and the prosecutrix. Unfortunately such is not thecaseherein.
Thus in sum and substance what comes out of the entire aforesaid narration of facts is that the appellant j removed the t"tl!lim • / ..<> -K o n>13 o <D => <~t* w w-o -o g>IB), <c 1 i: s§' 1 3 s ^fn> O a> ? n> o o 3 m •< a> Q. O11 (fl-t Q. B)"0 -o (C (ri 13- Q :3- <c 1 Q % Q. _n> s s §-. i u 3 ^ w 01 3 o a> 3 3 CL y m^ 1o 0) 3 Q. Q. c y <E. B> s z su-g c"I 3- (D 8 3 3. S. o; (D 3 &. ::r <D 3: ? 1 1 i S 5 i< o T i ^ sa> 3' SS^ 1 i! o §. (D 3 W 3- <D ^ 3- (D 1 ~~J l~ 11c s- <s ^ O! (Q 0> a> -o g 3- (D < m ^2. 5 -a 1s c Q. (Q <D :3 Q •s (& O) B) c: 3 §• <eI.Q o o :3 0) c: y 3. 8 8 (B 3 5, £. c*> 2. ~*J (Q n> 3 Q. f (& o' c 3a. n> °- a> :3 Q. Q. % 3 &f*- o n> d' B) 3•< ^ -y' 'S A ^•^ T.<i a\a
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — s. 374; Indian Penal Code, 1860 — ss. 363, 366, 376, 506, 511.
Which court decided this case, and when?
Chhattisgarh High Court, on 26 Oct 2009.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.