NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.2690 of 1999
Judgment Reserved on : 5.12.2017
Judgment Delivered on : 21.2.2018
1. Hemant, S/o Milan Ram, aged about 24 years, Resident of Village
Khamtarai, Thana Aarang, District Raipur
2. Ram Bharose, S/o Kashi Ram, aged about 24 years, Resident of
Village Khamtarai, Thana Aarang, District Raipur, M.P. (now
Chhattisgarh)
—- Appellants
versus
State of M.P. (now Chhattisgarh) through District Magistrate, Raipur
— Respondent
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For Appellants : Smt. Indira Tripathi, Advocate
For Respondent/State : Smt. Smita Ghai, Panel Lawyer
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Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 30.9.1999
passed in Sessions Trial No.366 of 1996 by the Second Additional
Sessions Judge, Raipur convicting and sentencing each of the
Appellants as under:
Conviction Sentence
Under Section 376(2)(g) Rigorous Imprisonment for 10 years
of the Indian Penal Code and fine of Rs.500/- with default
stipulation
2. Facts of the case, in brief, are that the prosecutrix (PW18), aged
about 16 years, was a mentally retarded girl. She was unable to
speak properly. When Punitram (PW1), father of the prosecutrix
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and Chhediyabai (PW5), mother of the prosecutrix went to the
agricultural field, the prosecutrix stayed alone at home. In the year
1993, as per the Hindu Calendar in the month of Agahan, stomach
of the prosecutrix started swelling. She was avoiding to take food
and began to vomit. On being asked by her mother Chhediyabai
(PW5), she told that when she stayed alone at home, sexual
intercourse was done with her by accused Hemant, Rambharosa
and Sewan Kumar. Thereafter, a village panchayat was called by
the parents of the prosecutrix. In the panchayat, accused Hemant
and Rambharosa confessed that they had committed sexual
intercourse with the prosecutrix. It is alleged that one agreement
(Ex.P4) was also signed by them in the panchayat. It is also
alleged that accused Ghanshyam Prasad aborted the pregnancy of
the prosecutrix by making her consume medicines without her
consent. First Information Report (Ex.P1) was lodged by Punitram
(PW1), father of the prosecutrix on 21.2.1994. During
investigation, statements of the prosecutrix as well as other
witnesses were recorded under Section 161 of the Cr.P.C.
Regarding the age of the prosecutrix, Kotwari Register was seized
vide Ex.P9. The aforementioned agreement (Ex.P4) was seized
vide Ex.P3. The prosecutrix was medically examined by Dr. Kiran
Agrawal (PW19). Her report is Ex.P14A in which she has opined
that the prosecutrix was mature for doing sexual intercourse, but
she was unable to give a definite opinion regarding recent abortion
of the prosecutrix. Accused Rambharosa and Hemant were
examined by Dr. S.C. Shrivastava (PW12) and his reports are
Ex.P10 and P11 in which he found that both of the accused were
capable to perform sexual intercourse. On completion of the
investigation, a charge-sheet was filed against the accused for
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offences punishable under Sections 376(2)(g), 313 and 315 of the
IPC. Charge was framed under Section 376(2)(g) IPC against
accused Rambharosa, under Section 376(2)(g) IPC against
accused Hemant, under Section 376(2)(g) IPC against accused
Sewan Kumar and under Sections 313 and 315 IPC against
accused Ghanshyam Prasad.
3. To rope in the accused, the prosecution examined as many as 19
witnesses. Statements of the accused were also recorded under
Section 313 Cr.P.C. in which they denied the circumstances
appearing against them, pleaded innocence and false implication.
Two witnesses have been examined in their defence.
4. After trial, the Trial Court acquitted accused Sewan Kumar and
Ghanshyam Prasad of the charges framed against them, but
convicted and sentenced the accused/Appellants as mentioned in
the first paragraph of this judgment. Hence, this appeal.
5. Learned Counsel appearing for the Appellants argued that the FIR
was lodged after 10 months of the incident and delay in lodging the
FIR has not been explained properly. There are contradictions and
omissions in the statements of the witnesses. It was further
argued that statement of the prosecutrix is not reliable. Her
parents Punitram (PW1) and Chhediyabai (PW5) have also not
duly corroborated the case of the prosecution. It was further
argued that there is nothing on record to establish that the
prosecutrix was mentally retarded.
6. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment.
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7. I have heard Learned Counsel appearing for the parties and
perused the material available on record minutely.
8. Punitram (PW1), father of the prosecutrix has stated that at the
time of the incident the prosecutrix was aged about 13-14 years.
He has further stated that the prosecutrix was mentally weak and
was able to speak little. As per his statement, when he along with
his wife Chhediyabai (PW5) used to go to work in the agricultural
field, the prosecutrix used to say alone at home. When the
prosecutrix left taking food and started vomiting, her mother took
her to the doctor. At that time, it came to their knowledge that the
prosecutrix was pregnant. He has further stated that on being
asked, the prosecutrix told that the pregnancy was due to accused
Hemant and Rambharosa. A panchayat was called. Both the
accused were also called in the panchayat. They admitted in the
panchayat that the prosecutrix became pregnant because of them.
He has further stated that when the prosecutrix was taken to the
doctor, she told that the prosecutrix was carrying a pregnancy of 2-
3 months. Later on, her pregnancy was aborted. After that, he
lodged the FIR (Ex.P1). The above statement of this witness has
remained unchallenged. Not a single question was put to him
during his cross-examination on behalf of the accused.
9. Chhediyabai (PW5), mother of the prosecutrix has also stated that
when they came to know that the prosecutrix was pregnant, on
being asked the prosecutrix told that accused Rambharosa and
Hemant had committed sexual intercourse with her. She has
further stated that a village meeting was also called in this regard.
10. Rajuram (PW3), Jagdeo (PW4), Sukhdeo (PW6), Kashiram (PW7),
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Kriparam (PW8), Ramlal (PW9) and Dhanushram (PW10) are the
witnesses, who appeared in the said village panchayat. All these
witnesses have appeared in the said panchayat yet Kashiram
(PW7) has not supported the further story of the prosecution. But,
the other above-named witnesses have categorically stated that in
the village panchayat, in their presence, the prosecutrix named
both the accused/Appellants and stated that both the Appellants
had committed sexual intercourse with her.
11. Dhanushram (PW10) has further stated that both the Appellants
also admitted in the said panchayat the allegation levelled against
them. They were fined also by the panchayat. Rajuram (PW3) has
also supported the above statement of Dhanushram (PW10) and
stated that both the Appellants were fined by the panchayat and
they have also deposited the fine amount. Jagdeo (PW4) has also
admitted that in the said panchayat, both the Appellants, on being
asked, had admitted committing sexual intercourse with the
prosecutrix and for that one agreement (Ex.P4) was also executed
by both the Appellants. The said agreement has been seized vide
Ex.P3. Rajuram (PW3) has supported the above fact. All the
above witnesses have deposed that an agreement was executed
and they have remained firm during their cross-examination.
Raghu (PW16) and Rajuram (PW3) have admitted that the said
agreement was seized in their presence.
12. Though the prosecutrix (PW18) has not been able to speak about
the incident in detail during her examination before the Court yet
she has stated that by mounting over her wrong act was done with
her.
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13. Sukhnandan (PW11) is the witness before whom Kotwari Register
was seized vide Ex.P9. Dr. S.C. Shrivastava (PW12) has
examined the Appellants and has given his reports (Ex.P10 and
P11) in which he has stated that the Appellants were found capable
of committing sexual intercourse. Sitabai (PW14) has not stated
anything about the incident and has been declared hostile. Station
House Officer Pramod Naidu (PW15) is the witness who recorded
the FIR (Ex.P1) as per the oral report of Punitram (PW1). During
investigation, he also recorded statements of the parents of the
prosecutrix Punitram (PW1) and Chhediyabai (PW5) under Section
161 Cr.P.C. Assistant Sub-Inspector D.P. Bhoi (PW17) has stated
that the agreement (Ex.P4) was seized and Kotwari Register was
seized vide Ex.P9. He did the further investigation into the offence
in question. Dr. Kiran Agrawal (PW19) examined the prosecutrix.
14. On minute examination of the evidence adduced by the
prosecution, it is found that though the prosecutrix (PW18) has not
been able to state about the incident in detail during her
examination before the Court yet her father Punitram (PW1) and
mother Chhediyabai (PW5) have categorically stated that when
they came to know, on being asked, the prosecutrix told the names
of the Appellants. In the village panchayat also, the prosecutrix
took the names of the Appellants. Statements of the parents of the
prosecutrix have remained unchallenged before the Court.
Rajuram (PW3), Jagdeo (PW4), Sukhdeo (PW6), Kashiram (PW7),
Kriparam (PW8), Ramlal (PW9) and Dhanushram (PW10) have
also categorically stated that the prosecutrix had taken the names
of both the Appellants before the panchayat. Rajuram (PW3),
Jagdeo (PW4), Dhanushram (PW10) have further stated that both
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the Appellants had admitted the charges levelled against them
before the said panchayat. During cross-examination, these
statements have not been challenged by the Appellants. Further, it
is also clear that in the said panchayat, one agreement (Ex.P4)
was also executed by the Appellants which was later on seized
vide Ex.P3. From perusal of the said agreement (Ex.P4) also, it
reveals that both the Appellants had admitted their guilt before the
village panchayat.
15. Regarding the age of the prosecutrix, Kotwari Register was seized
vide Ex.P9. In the Kotwari Register, the date of birth of the
prosecutrix is mentioned as 1.11.1974. The incident was of the
year 1993. Thus, as per the entry of the Kotwari Register, the age
of the prosecutrix, on the date of incident, was above 16 years is
established. From the evidence adduced by the prosecution, it is
also clear that both the Appellants had committed sexual
intercourse with the prosecutrix. Though on the date of incident
she was above 16 years of age yet from the evidence of the
prosecution it is well established that the mental condition of the
prosecutrix was not sound. It is true that there is no document or
medical evidence on record regarding mental condition of the
prosecutrix, but from the statements of the prosecution witnesses,
it is clear that her mental condition was not sound. Therefore, she
cannot be legally held to be able to give consent for the sexual
intercourse done with her. Thus, since the prosecutrix was not
able to give consent for the sexual intercourse, the act of the
Appellants certainly falls within the category of rape.
16. In view of the foregoing, I find that the prosecution has duly proved
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its case against the Appellants beyond doubt. The finding of the
Trial Court is just and proper and the same does not warrant any
interference by this Court.
17. Consequently, the appeal is dismissed. The judgment under
challenge is affirmed.
18. 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