Indian Penal Code - Section 376 - Rape - Promise to marriage

 Ramesh Kumar Vs State of HP 07.09.2010

Cr. Appeal No. 445 of 2003

Hon’ble Mr. Jus­tice VK Ahuja, Judge.

Indian Penal Code — Sec­tion 376 — rape — A perusal of state­ment of pros­ecutrix as PW-1 shows that occur­rence had taken place on 2.12.2001 — It has come up in state­ment of PW-1 that appel­lant used to visit her house and stay there and spe­cific dates were sug­gested in regard to vis­its of appel­lant to house of pros­ecutrix as 9.11.2001, 24.11.2001, 15.12.2001, 14.12.2001 and 3.1.2002 and pros­ecutrix had admit­ted that appel­lant used to visit their house and stayed there even after inci­dent — This clearly shows that appel­lant was known to pros­ecutrix, was already engaged to pros­ecutrix and mar­riage was likely to take place in near future — There­fore, there is noth­ing to sug­gest that appel­lant had forcibly tres­passed into house of pros­ecutrix — state­ment of sis­ter of pros­ecutrix, namely, PW-2 Nisha Kumari also shows that accused came to their house for din­ner, which was pre­pared and served to him and there­after, this occur­rence took place — This clearly shows that there was no occa­sion for wrong­ful tres­pass by appel­lant to house of pros­ecutrix — Though par­ents of pros­ecutrix had learnt about occur­rence, but still FIR was not lodged imme­di­ately, which was lodged on 3.3.2002 — pros­ecutrix alleged that she was given threat, but no threat had been given to PW-2 Nisha Kumari, younger sis­ter of pros­ecutrix, who did not lodge any report or made any com­plaint to her par­ents — Num­ber of vis­its as admit­ted by pros­ecutrix in her state­ment clearly shows that appel­lant was a fre­quent vis­i­tor to their house since she was already engaged to appel­lant — State­ment of PW-2 Nisha Kumari, younger sis­ter of pros­ecutrix, also sug­gests that she learnt about occur­rence, but did not nar­rate inci­dent to her par­ents — State­ment of PW-3 Smt — Sant Kali, mother of pros­ecutrix and PW-4 Prem Lal, clearly shows that they had learnt about occur­rence after 1½ month, but still no report was lodged -

For the appel­lant: Mr. PP Chauhan, Advo­cate.

For the respon­dent: Mr. JS Gule­ria, Assis­tant Advo­cate General.

VK Ahuja , J. (Oral):.

This is an appeal filed by the appel­lant under Sec­tion 374 CrPC against the judg­ment of the Court of learned Ses­sions Judge, Kin­naur Ses­sions Divi­sion at Ram­pur Bushahr, dated 27.9.2003, vide which the appel­lant was held guilty under Sec­tions 376, 342, 417 and 506 I.P.C. and was sen­tenced as under:-

1. Under Sec­tion 376 I.P.C.: Seven years sim­ple impris­on­ment and fine of Rs.20,000/-. In default of pay­ment of fine, the con­vict shall fur­ther undergo sim­ple impris­on­ment for one year.

2. Under Sec­tion 342 I.P.C.: One year sim­ple impris­on­ment and fine of Rs.1000/-. In default of pay­ment of fine, the con­vict shall fur­ther undergo sim­ple impris­on­ment for two months.

3. Under Sec­tion 417 I.P.C.: One year sim­ple impris­on­ment and fine of Rs.1000/-. In default of pay­ment of fine, the con­vict shall fur­ther undergo sim­ple impris­on­ment for one month.

4. Under Sec­tion 506 I.P.C.: Two years sim­ple impris­on­ment and fine of Rs.1000/-. In default of pay­ment of fine, the con­vict shall fur­ther undergo sim­ple impris­on­ment for one month.

2. Briefly stated, the facts of the case are that on 3.3.2002, a report was lodged with the police by Prem Lal, father of the pros­ecutrix, that his elder daugh­ter is Tauli Devi alias Man­isha, who is aged about 20 years. In the month of Feb­ru­ary, in the third week, it was noticed by him as well as his wife that Tauli Devi appeared to be depressed and was seen vom­it­ing. They enquired from Tauli Devi and she informed them that on 2.12.2001 when the wife of the com­plainant and com­plainant were not present in the house and the pros­ecutrix and her sis­ter were in the house, Ramesh Kumar, appel­lant, came to their house at about 9.00 P.M. After some­time, he asked his daugh­ter Nisha to bring water, who had gone to the kitchen to bring water.

There­after, the appel­lant bolted the door from inside and put a Dattu (cloth) on the mouth of Tauli Devi and gave a threat that if she raised an alarm, she will be killed. There­after, the appel­lant did Galat Kaam forcibly with her and the appel­lant left the place after giv­ing her threat that in case she informed any per­son, she will be killed. He was not informed by his daugh­ter or his wife about this fact and today it was told to him and he had lodged the report. On this report, a case was reg­is­tered and after inves­ti­ga­tion, the chal­lan was filed before the Court of learned Sub Divi­sional Judi­cial Mag­is­trate, Ram­pur Bushahr, who com­mited the case to the Court of learned Ses­sions Judge.

The appel­lant was tried by the learned Ses­sions Judge under the Sec­tions men­tioned above and on con­clu­sion of the trial, the appel­lant was held guilty and con­victed and sen­tenced as detailed above.

3. I have heard learned coun­sel for the par­ties and have gone through the record of the case.

4. The first point taken by the learned coun­sel for the appel­lant was in regard to the delay in ques­tion. It was sub­mit­ted that the occur­rence had allegedly taken place on 2.12.2001 and the report was lodged on 3.3.2002, though in between the father of the pros­ecutrix had allegedly learnt about the occur­rence in the third week of Feb­ru­ary, but still no report was lodged. It was also sub­mit­ted that the delay in ques­tion in lodg­ing the report has not been sat­is­fac­to­rily explained, which proves fatal for the pros­e­cu­tion case.

5. A perusal of the state­ment of the pros­ecutrix as PW-1 shows that the occur­rence had taken place on 2.12.2001. It is also in her state­ment as well as that of her father and other wit­nesses that engage­ment cer­e­mony had already been per­formed in between the pros­ecutrix and the appel­lant and the mar­riage was to be per­formed in the near future. It has come up in the state­ment of PW-1 that the appel­lant used to visit her house and stay there and spe­cific dates were sug­gested in regard to the vis­its of the appel­lant to the house of the pros­ecutrix as 9.11.2001, 24.11.2001, 15.12.2001, 14.12.2001 and 3.1.2002 and the pros­ecutrix had admit­ted that the appel­lant used to visit their house and stayed there even after the inci­dent. This clearly shows that the appel­lant was known to the pros­ecutrix, was already engaged to the pros­ecutrix and the mar­riage was likely to take place in the near future. There­fore, there is noth­ing to sug­gest that the appel­lant had forcibly tres­passed into the house of the prosecutrix.

The state­ment of sis­ter of the pros­ecutrix, namely, PW-2 Nisha Kumari also shows that the accused came to their house for din­ner, which was pre­pared and served to him and there­after, this occur­rence took place. This clearly shows that there was no occa­sion for wrong­ful tres­pass by the appel­lant to the house of the prosecutrix.

6. Apart from the above, it has come up in the tes­ti­mony of PW-1 that the accused closed her mouth with Dattu and also told that mar­riage would be sol­em­nized between the pros­ecutrix and the accused and also told that engage­ment has already been sol­em­nized and, there­fore, it can­not be said that there was threat to kill her, rather accord­ing to the pros­ecutrix, it was a promise to marry in view of the engage­ment cer­e­mony hav­ing been solemnized.

She admits that her own sis­ter PW-2 Nisha Kumari was present in the house, who on see­ing the door bolted from inside slept in the adjoin­ing room. It has also come up in the state­ment of PW-2 Nisha Kumari that her sis­ter had told her next morn­ing itself that the accused had com­mit­ted Galat Kaam with her dur­ing the night time, which clearly shows that she was aware of the facts on the next day itself.

She was the girl of 16 years at that time and, there­fore, can­not be said to be unable to under­stand the occur­rence that had taken place on the pre­vi­ous night. How­ever, she did not inform about the inci­dent to her mother or father.

7. Accord­ing to PW-1 Tauli Devi, she did not nar­rate the inci­dent to any­body. How­ever after 1½ month when she started vom­it­ing, it came to her knowl­edge that she has been pregnanted.

In the month of Feb­ru­ary, the pros­ecutrix’ mother had learnt about the occur­rence. This clearly shows that the pros­ecutrix’ mother had learnt about the occur­rence and it was alleged in the FIR itself that the pros­ecutrix’ father had learnt about the occur­rence when the pros­ecutrix started vom­it­ing in the third week of Feb­ru­ary. Though the par­ents of the pros­ecutrix had learnt about the occur­rence, but still the FIR was not lodged imme­di­ately, which was lodged on 3.3.2002. It has come up in the state­ment of PW-4 Prem Lal, father of the pros­ecutrix, that in the month of Feb­ru­ary, 2002, the police offi­cials had called the accused and them to Police Sta­tion, but the accused did not turn up, which clearly shows that the police was aware of the fact that a cog­niz­able offence has been com­mit­ted, but no report was reg­is­tered by him. It was sug­gested to PW-20 Inspec­tor Hukam Singh, Inves­ti­gat­ing Offi­cer, that he had sub­mit­ted a report to this Court when bail appli­ca­tion was filed by the accused on 22.2.2002 and he had reported that no case was reg­is­tered. How­ever, the report sub­mit­ted by him or the order of the Court was not placed on the record. How­ever, in view of the sug­ges­tion made to the wit­ness and admis­sion made by the father of the pros­ecutrix, it is clear that the mat­ter had been reported or had been brought to the knowl­edge of the police offi­cials in Feb­ru­ary, 2002 itself, but no case was reg­is­tered by the police, which was got reg­is­tered on 3.3.2002 on the report of the father of the prosecutrix.

8. The above dis­cus­sion clearly leads to an infer­ence that the occur­rence was not reported by the pros­ecutrix to her par­ents, though it was reported to her younger sis­ter on the next day itself, but still no report was lodged. There­after, the occur­rence was brought to the knowl­edge of the par­ents in the month of Feb­ru­ary, but still they did not lodge any report. It was lodged only on 3.3.2002. The pros­ecutrix alleged that she was given threat, but no threat had been given to PW-2 Nisha Kumari, younger sis­ter of the pros­ecutrix, who did not lodge any report or made any com­plaint to her par­ents. Thus, it is clear that there has been inor­di­nate delay in lodg­ing the FIR, which has not been explained sat­is­fac­to­rily. Since the girl was major and was already engaged to the appel­lant and there was no ques­tion of any fam­ily hon­our hav­ing been put to stake or hav­ing affected the mar­riage prospects of the pros­ecutrix, the report would have been lodged imme­di­ately. There­fore, the state­ments of the pros­e­cu­tion wit­nesses in the light of the inor­di­nate delay has to be taken with more care and cau­tion, though it can­not be said that it proves fatal for the pros­e­cu­tion case.

9. A perusal of the record shows that the pros­e­cu­tion case mainly rests upon the state­ment of the pros­ecutrix and it has been cor­rob­o­rated to some extent by her younger sis­ter and her parents.

On perusal of the state­ment of PW-1 shows that her younger sis­ter was sent to bring water and the accused bolted the door and when the younger sis­ter knocked the door, the door was not opened. The rea­son­ing given by the pros­ecutrix in her state­ment was that the accused had closed her mouth with Dattu (cloth) and he had given a threat and, there­fore, the sex­ual inter­course was com­mit­ted with her.

It looks sur­pris­ing that the accused com­mit­ted sex­ual inter­course with her three times dur­ing the night. Dur­ing this period, Dattu was kept on her mouth and she could not resist or raise an alarm. More­over, the accused left the room in the next morn­ing at about 8.30 A.M. The pros­ecutrix’ state­ment as well as that of PW-2 Nisha Kumari clearly shows that there was a ten­ant liv­ing in their house. Her younger sis­ter was present in the house and there are other houses also near the place of occur­rence. In case an alarm had been raised by the pros­ecutrix at that time, those per­sons from the nearby houses or from the room in the upper floor could have eas­ily come and helped the pros­ecutrix in sav­ing her from the clutches of the appellant.

Num­ber of vis­its as admit­ted by the pros­ecutrix in her state­ment clearly shows that the appel­lant was a fre­quent vis­i­tor to their house since she was already engaged to the appel­lant. The appel­lant used to reside in the house and this clearly shows that the and the appel­lant was per­mit­ted to stay in the house on sev­eral occa­sions. The fact that the sex­ual inter­course was com­mit­ted on 2.12.2002 for three times and the appel­lant remained in the room through­out the night clearly sug­gests that the pros­ecutrix was a con­sent­ing party to the sex­ual intercourse.

10. It has also come up in the evi­dence that the engage­ment cer­e­mony was can­celled and accord­ing to state­ments of PW-1 and PW-4, father of the pros­ecutrix, that the mother of the accused came to their res­i­den­tial house and told that she would not marry her son with the pros­ecutrix, which was sug­gested to the pros­ecutrix and other wit­nesses that the mar­riage was refused to be per­formed since the pros­ecutrix was preg­nanted by some other per­son. The sug­ges­tion was denied by the wit­nesses, but the pos­si­bil­ity in the facts of the case can­not be ruled out since the appel­lant had not refused to marry her, but his mother aban­doned the mar­riage pro­posal in view of such alle­ga­tions made. State­ment of PW-2 Nisha Kumari, younger sis­ter of pros­ecutrix, also sug­gests that she learnt about the occur­rence, but did not nar­rate the inci­dent to her parents.

She knocked the door and slept in the adjoin­ing room with­out rais­ing any alarm or call­ing any per­son for help, which clearly shows that nei­ther any alarm was raised by the pros­ecutrix nor by this wit­ness and no per­son came to help the pros­ecutrix. State­ment of PW-3 Smt. Sant Kali, mother of the pros­ecutrix and PW-4 Prem Lal, clearly shows that they had learnt about the occur­rence after 1½ month, but still no report was lodged. The fact that the appel­lant had been vis­it­ing their house sev­eral times and stay­ing in their house stands estab­lished and the state­ment of the pros­ecutrix is not suf­fi­cient to prove that the sex­ual inter­course was com­mit­ted on the pre­text of promise to marry or under threat given to her and as such, the state­ment of the pros­ecutrix is not such which can be relied upon. The state­ment of the pros­ecutrix itself is suf­fi­cient to hold that she was a con­sent­ing party and, there­fore, the ingre­di­ents of offences under Sec­tion 376 or other Sec­tions 342, 417 and 506 I.P.C. were not estab­lished beyond any rea­son­able doubt.

11. In view of the above dis­cus­sion, it is clear that the find­ings recorded by the learned trial Court hold­ing the appel­lant guilty and con­vict­ing and sen­tenc­ing him can­not be said to be sus­tain­able and as such, the appeal filed by the appel­lant is accepted and con­vic­tion and sen­tence is set aside. The bail bonds fur­nished by the appel­lant shall stand dis­charged forth­with. The amount of fine, if real­ized, shall be refunded back to the appel­lant after the expiry of the period of appeal. The appeal stands allowed accordingly.

Indian Penal Code - Section 376 - Rape - Promise to marriage