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Hemant And Another vs State 3 Cra/589/2002 Guddu @ Ram … on 21 February, 2018

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
——————————————————————————————————

For Appellants : Smt. Indira Tripathi, Advocate
For Respondent/State : Smt. Smita Ghai, Panel Lawyer

——————————————————————————————————

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
2

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
3

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.

4

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),
5

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.

6

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
7

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
8

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

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