Chattisgarh High Court
Rostam Ram @ Bade Rostam vs State Of Chhattisgarh on 15 January, 2024
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1136 of 2003
Rostam Ram @ Bade Rostam, S/o Badku Ram, Rajwade, aged about
25 years, occupation- Agriculture, Residence of Korja, P.S. Lakhanpur,
Dist- Surguja (CG)
---- Appellants
Versus
State Of Chhattisgarh
---- Respondent
For Appellants : Mr. Arham Siddiqui along with Mr. Vivekannand Samaddar, Advocate For Respondent/State : Mr. Wasim Miyan, Penal Lawyer S.B.: Hon'ble Shri Ravindra Kumar Agrawal, Judge Order On Board 15/01/2024
1. The present appeal arises out of the judgment of conviction and sentence dated 30/09/2003 passed by the First Additional Sessions Judge, Ambikapur, Dist- Surguja, in Sessions Case No. 238 of 2003 whereby the appellant has been convicted for the offence under Section 376 (1) of I.P.C. & sentenced him for R.I. for 07 years with fine of Rs. 1000/-. In default of payment of fine further R.I. for 06 months
2. Brief facts of the case are that, on 05.04.2003, the prosecutrix, aged about 21 years (PW-1) has made a written complaint to the Police 2 Station Lakhanpur against the appellant alleging that she is residing at Village- Turna, P.S. Darima and her elder sister is residing at Village- Korja, Navapara. Last year, the prosecutrix had gone to her sister's house on the occasion of the marriage of her grand son and reached there on 15.05.2002. On 16.05.2002 when she was sleeping in the house of Devman Rajwade, in the night at about 10 PM, the appellant entered into the room and committed forceful sexual intercourse with her and allured her that he will marry with her and asked her not to disclose the incident to anyone. He continued in making sexual intercourse with her by which she conceived pregnancy and thereafter she asked the appellant to get marry with her but he refused. When she has disclosed the incident to her elder sister, she asked for disclosing it to her parents. When she disclosed the incident to her parents they also tried to convince the appellant but he was not ready to get marry with her. Therefore, on the written complaint Ex-P/1 made by the prosecutrix, the FIR (Ex-P/2) was registered for the offence under Section 376 of IPC against the appellant. The prosecutrix was referred for her medical examination and PW-7 Dr. Smt. Shakuntala Xalxo has examined her and gave her medical report (Ex-P/5A), in which she opined that the prosecutrix is having pregnancy of about 32 weeks and advised for Ultra Sonography. Two slides of her vaginal smear were prepared and sent for Histopathology examination. Since the prosecutrix was referred for two examination, 1) Histopathologycal examination of the slide prepared from the Vaginal Smear and another is ultra Sonography test and therefore a query was being 3 raised by the Police as to which one examination would be appropriate with respect to the prosecutrix. In reply to that query, Dr. Smt. Shakuntala Xalxo (PW-7) has replied that she has already advised for Ultra Sonography test and her query report is vide Ex- P/7A. Spot map (Ex-P/10) was prepared by the Police. The appellant was arrested on 01.05.2003 and he was sent for his medical examination where he was medically examined by PW-8 Dr Ved Ram Singh, who gave his opinion (Ex-P/9A) according to which doctor has opined that he could not find any sign that he has not able to perform sexual intercourse. Statement under Section 161 of Cr. P.C of the prosecutrix as well as the witnesses have been recorded and after completion of investigation the charge sheet for the offence under Section 376 of IPC has been filed before the learned Chief Judicial Magistrate, Ambikapur.
3. The case was committed for its trial to the learned Sessions Judge, Surguja, Place- Ambikapur and from where transferred to the Court of learned First Additional Sessions Judge, Ambikapur. On 18.08.2003, the charge under Section 376 (1) of I.P.C. has been framed against the appellant, the appellant abjured his guilt and claimed for trial.
4. In order to establish the charge against the appellant, the prosecution has examined 08 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded in which he denied the material appears against him and plead innosence. One defence witness has been examined by the appellant. 4
5. After appreciation of the oral as well as documentary evidence available on record, the learned Trial Court has convicted the appellant and sentenced him as mentioned in Para 1 to this judgment hence this Appeal.
6. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the case. The prosecution has failed to prove his case beyond reasonable doubt. The prosecutrix is fully grown up major lady and having engaged in making consensual physical relation with the appellant and therefore no offence of Rape is made out against him. He would further submit that the appellant has already performed marriage with the prosecutrix on 25/04/2005 and residing with her two children also. The alleged offence of rape committed by the appellant has not been made out in view of the age and conduct of the prosecutrix because she has not raised any alarm at the time of commission of alleged forceful sexual intercourse with her. She continued in making physical relation for about 10-11 months and it is only when he refused to marry with her, the report has been lodged. Therefore, the appellant is entitled for his acquittal.
7. On the other hand, learned State counsel has opposed the argument made by the learned counsel for the appellant and would submit that the prosecution has proved his case beyond reasonable doubt. The prosecutrix has fully supported her case and her evidence need not be any required to be corroborated by other evidence. She being the victim of the offence of rape. Her evidence 5 is sufficient to hold guilty of the appellant in the offence of rape. He would further submit that at she is being engaged in making consensual physical relation with the appellant, she would not have lodged any report against him and therefore the learned Trial Court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference.
8. I have heard the learned counsel for the parties and perused the record.
9. PW-1, the prosecutrix have stated in her deposition that on 16.05.2002 when she was sleeping in the house of one Devman Rajwade, the appellant entered into her room and asked for making physical relation with her, when she refused, he allude her that he will marry with her. After making forceful sexual intercourse with her on first day, he repeatedly making physical relation with her on the pretext of marriage. In the month of July, she had conceived pregnancy. She informed the appellant about her pregnancy and requested him to perform marriage with her but he refused. In the month of September, 2002 the appellant has completely refused to marry with her and thereafter she informed her elder sister and her family members about the incident. Her elder sister has sent her back to her parents house where the village meeting was convened. In the village meeting the appellant again refused to marry with her and thereafter she came to Police Station and lodge the report. She has further stated that on 25th May, 2003, she delivered a male child. In cross examination she has stated that after about 4-5 days 6 when she had gone through the house of her elder sister she introduced with the appellant. On 16th May the appellant has made forceful sexual intercourse with her. She admits in Para 10 of her evidence that she has not disclosed the fact that the appellant has allured her that he will marry with her if she has not been informed to her elder sister and it is only being informed after the time when she has got pregnant. She has further stated that she has already married 4 years back but she has thrown out from her in laws house and her father again searching groom for her. She has further stated that when the appellant was in the house of Devman Rajwade, all the family member of Devman were there and the appellant stayed there for whole night and in the morning he left. She stayed along with the appellant in the night as husband and wife. She has further stated that from the month of May up to July the appellant daily came to her and made physical relation with her which continued up to the month of September. She has further admitted that if the appellant would have marry with her, she would not have lodged any report against him.
10. From the evidence of the prosecutrix PW-1, it appears that in the night when she was sleeping in the house of Devman, the appellant came there, stayed there along with the prosecutrix as husband and made physical relation with her but there is no protest by the prosecutrix and no alarm was raised by her. Had she been raised any hue and cry or protested the act of the appellant, the family members of Devman who admittedly were there in other rooms of 7 the house, would gathered there and rescued her from the appellant but she has not stated in her deposition about the act of the appellant in any manner by raising alarm or making hue and cry except that she refused for making physical relation when the appellant asked for the same. Even she has not disclosed any incident of forceful commission of sexual intercourse to anyone till the month of September and remain in relation with the appellant.
11. PW-2, who is the elder sister of the prosecutrix has stated in her deposition that at the time of her grand son's marriage, her sister came to her house. After about 3-4 months, her sister informed her that the appellant has committed rape upon her. The appellant has assured her that he will marry with her but he did not do so. By the act of the appellant her sister was got pregnant. The Panchayat meeting was convened in the village and in Panchayat meeting also the appellant refused to accept his guilt. she admits in her cross- examination that her sister has not disclosed the incident to her on the date when she was allegedly subjected to forceful sexual intercourse and it is only when she has got pregnant she informed the incident to her.
12. PW-3 the father of the prosecutrix has also stated in his deposition that after about 7-8 months his elder daughter has informed him that the prosecutrix was subjected to rape by the appellant and by that she conceived pregnancy. He called Panchayat meeting in the village in which the appellant denied his guilt and thereafter the father of the prosecutrix has lodged the report. In cross examination 8 the appellant has stated that the fact of Panchayat Meeting was informed to the Police by his daughter.
13. PW-4, who is the mother of the prosecutrix has also came into knowledge about the incident when her elder daughter has informed about the incident. In cross-examination she has further stated that if the appellant would have married with the prosecutrix, she would not have lodged any report against him.
14. Close scrutiny of the evidence, makes it clear that the prosecutrix has not immediately informed about the incident to any of the person in the house of Devman where she was stayed in the night. Till the month of September, she has not informed about the incident to anyone and it is only when she conceived pregnancy, she disclosed about the incident to her elder sister. Had she been subjected to forceful sexual intercourse by the appellant she would have immediately informed to her sister or other persons who where there in the house of Devman.
15. Considering the abovementioned evidence and facts also that the appellant has got married with the prosecutrix on 25.04.2005 and residing with her and procured two children which is supported by the document filed by the appellant in this appeal, no offence of Section 376 (1) of IPC made out against the appellant.
16. In the result the appeal is allowed and the appellant is acquitted from the charge of Section 376 (1) of IPC.
17. The appellant is on Bail. His bail bond is continued for the period of six months as prescribed in Section 437-A of Cr.P.C. 9
18. For the foregoing reasons, the appeal is allowed.
19. The Lower Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal) Judge Sagrika