Allowed

Dhanna Ram v. State of Chhattisgarh

Chhattisgarh HC10 Aug 2023CRA/1116/2003

Case brief

AI extract

What is this about?

High Court of Chhattisgarh allowed the appeal, setting aside the conviction of the appellant under Sections 376/366 IPC. The court acquitted the appellant by benefit of doubt, finding the prosecutrix was a consenting party based on the delay in FIR, lack of injuries, and witness testimony indicating voluntary cohabitation.

What did the court decide?

Judgment of conviction and sentence set aside; Applicant acquitted by benefit of doubt; Bail bonds remain in force for six months.

Dhanna Ram Vs State of Chhattisgarh — Chhattisgarh HC (2023) — LawSathi Research

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on 25.07.2023 Judgment Delivered on 10.08.2023

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CRA No.1116 of 2003

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Dhanna Ram son of Shri Dubey Prasad, aged about 25 years, Occupation agriculturist, resident of village Pathrayee (Kachhrarnaka) Police Station Batauli, District Surguja (Chhattisgarh).

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---- Appellant

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Versus

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The State of Chhattisgarh, through Police Station Batauli, District Surguja (Chhattisgarh).

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---- Respondent

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For Appellant : Mr. Vivek Bhakta, Advocate For Respondent/State : Mr. Aman Kesharwani, P.L.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal CAV Judgment

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The present appeal arises out of the impugned judgment of conviction and order of sentence dated 04.10.2003 passed by Second Additional Sessions Judge, Ambikapur, District Surguja (C.G.) in Sessions Trial No.313 of 2001 whereby, the learned Second Additional Sessions Judge convicted the appellant and sentenced him as under :-

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Conviction	Sentence
U/s 376 of IPC	R.I. for 3 years and fine of Rs. 5,000/- in default of payment of fine amount additional R.I. for 6 months.
U/s 366 of IPC	R.I. for 3 years and fine of Rs. 2,000/- in default of payment of fine amount additional R.I. for 6 months.
Both the sente	nces were directed to run concurrently.

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The prosecution story, in brief, is that, on 17.06.2001, prosecutrix Dharmdashi Beck lodged a written report to Police Station Batauli regarding kidnapping and rape. In the said report, it has been stated that she was living in village Pathrai and studied upto Class IX, she was aged about 16 years. On 07.02.2001, in the evening, when she was returning to her house after answering the nature’s call, she met the appellant Dhanna Ram and Surendra Oraon near the house of Basanti. They caught hold of her, when she refused, they threatened her to kill. Thereafter, they dragged the prosecutrix and taken to the house of the appellant and locked her in one room, where appellant Dhanna Ram committed sexual intercourse with her twice. On the next night, accused persons were brought her to Maheshpur, where also, appellant Dhanna Ram committed sexual intercourse with her. On the very next day, appellant Dhanna Ram brought her to village Karendra, Lakhanpur by Bus and they stayed there for one day. Thereafter, they moved to village Kaskela, where they got a room on rent from one Baldeo (PW-13), where they lived together for about three months. On 17.05.2001, appellant Dhanna Ram, his father and maternal uncle took her to village Patharai and kept the prosecutrix for about 4-5 days. One night, after getting a chance, prosecutrix went to Ambikapur for her sister’s house (namely Phoolkunwar Oraon PW-5). Thereafter, brothers of appellant Dhanna took the prosecutrix to the house, where appellant Dhanna forcibly taken photographs with prosecutrix. He went to Surajpur Court and got the paper signed and told her about the Court marriage. When the prosecutrix was abducted for the first time, Yogendra Nair (PW-2) was seen her. On the basis of written report

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(Ex.P/1) lodged by the prosecutrix, First Information Report (Ex.P/2) was registered against the appellant and after completion of the investigation, charge sheet was filed.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 13 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C., in which, he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 04.10.2003, learned Second Additional Sessions Judge while acquitting the co-accused Surendra for the offence punishable under Sections 363/34 & 366/34 of IPC, coaccused Smt. Shanti Bai for the offence punishable under Sections 363/34, 366/34 & 342/34 of IPC and accused/appellant Dhanna Ram for the offence punishable under Section 363 of IPC, has convicted and sentenced the accused/appellant- Dhanna Ram as mentioned in para1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that the trial Court in para 13 of the impugned judgment held that there was love affairs between the accused and prosecutrix, despite that, trial Court has convicted the appellant, which is not sustainable in the eyes of law. He further submits that learned trial Court has failed to consider that there is an inordinate delay in lodging the FIR. Apart from this, according to FIR, prosecutrix was shown to be aged about 16 years, but during the course of investigation, it is found that prosecutrix was aged about 21

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years on the date of alleged incident, as such, the charge under Section 363 of IPC automatically washed-out by the trial Court. It is contended that prosecution has not proved its case beyond reasonable doubt and accused/appellant is entitled for acquittal. It is further contended that an observation has been made by the trial Court that there was love affairs with the parties and they performed marriage in temple as well as in Surajpur Court by executing an affidavit, despite that, conviction of the appellant under Section 376 of IPC by the trial Court is not sustainable. It is lastly contended that the impugned judgment passed by the learned trial Court is illegal, arbitrary and is liable to be set aside.

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Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

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Heard learned counsel for the parties and perused the material on record including the impugned judgment.

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The main contention of defence is that at the time of occurrence, prosecutrix was major and consenting party, who was in love relationship with appellant. She voluntarily stayed with appellant for about 4½ months and prosecutrix has lodged a false report against appellant under the pressure of her family members. The prosecutrix and her family members have emphasized during their evidence that at the time of incident, age of prosecutrix was 16 years, but they have not produced any documentary evidence in this regard to ascertain that at the time of alleged incident, prosecutrix was aged about 16 years.

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Sub-Inspector C.D. Lahre (PW-8) has seized the admission register of school vide Ex.P/10, which is in the form of Ex.P/18. Teju Singh (PW-12) Headmaster of Government Primary School, Pathrai has proved the said admission register, to which, date of birth of prosecutrix was mentioned as 25.08.1979. Calculating the date of birth from the date of alleged incident i.e. 07.02.2001, prosecutrix appears to be between 21-22 years. Apart from above date of birth, prosecutrix or her family members have not stated any other date or year of birth. Their evidence in respect of age of prosecutrix to be 16 years has been exaggerated. As such, oral statements are not found credible in view of entries in school admission register. It has been established from the evidence presented by prosecution that on the date of alleged incident i.e. on 07.02.2001, age of prosecutrix was above 21 years and she was major.

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The prosecutrix was major on the date of alleged incident, then the offence of Sections 366 and 376 of IPC will be deemed to be proved only when she was abducted by force or coercion and sexual intercourse was done without her will and consent. In the case at hand, defence has stated that prosecutrix was consenting party, hence, such fact has to be examined whether conviction and sentence awarded by the trial Court with regard to coercion is justified or not ?

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Dr. S.P. Jaiswal (PW-10) conducted medical examination of prosecutrix and given its report vide Ex.P/17. He stated that hymen of prosecutrix was old torn and there were no marks of injury on her genitals or body. She was stated to be with a man for three months. On

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the basis of above, he opined that sexual intercourse has been done with her. He further opined that since the incident was occurred on 07.02.2001 and report was lodged on 17.06.2001, i.e. after about 4½ months, there is no mention in medical evidence regarding instant sexual intercourse.

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Sub Inspector C.D. Lahre (PW-8) has conducted entire investigation in the matter. He stated that affidavit of prosecutrix was marked as Ex.D/6 and affidavit of appellant was dated 26.03.2001, according to which, they went to Surajpur District Court and executed an affidavit, under which, they got married. At that time, a picture was clicked to garland each other, which is presented as Ex.D/7. However, the fact of voluntarily executing the affidavit was denied by prosecutrix, but she has accepted her signature on affidavit.

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In the Court statement, prosecutrix has basically stated the course of events as per written report (Ex.P/1) lodged in police station, whose re-mentioning would be unnecessarily burdensome to decide. Regarding the credibility of evidence, it is being considered in detail later.

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First of all, it would be appropriate to take a look at the other circumstances and statements of other witnesses, so that, on the basis of statement of prosecutrix, it can be determined whether she was a consenting party or not?

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Yogendra Nair (PW-2) is an eyewitness to the incident dated 07.02.2001. Prosecutrix has stated in para 29 of her evidence that Yogendra Nair is the son of her cousin Bhubaneswar. Yogendra Nair

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has stated in his evidence that incident occurred in between 06.0007.00 PM. He saw the incident from a distance of about 100 meters that appellant Dhanna Ram and co-accused Surendra were holding the prosecutrix and prosecutrix was crying. When he said what are you doing, Dhanna, who was holding knife, ran him for some distance, then he ran to his house. In cross-examination, he stated that he did not tell the above incident to anyone for 2-3 months. When prosecutrix returned home, she narrated the incident to people. Thus, despite being a relative of prosecutrix, incident witnessed in the village was not disclosed to anyone for three months, which seems unusual. As such, Yogendra Nair (PW-2) is not found to be a reliable witness.

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Mother of prosecutrix Dharmani Bai (PW-3) has stated that after disappearance of prosecutrix from the house, she made inquiries, but she was not found for a long time. She was found after 2-3 months, then, she narrated the incident. In cross-examination, she was giving the same statement in Court as asked by Police. She stated that she was not good terms with accused. She also stated that 2-3 days after the incident, friends of prosecutrix had gone to call the sister of appellant Dhanna Ram, then they had seen the prosecutrix at Dhanna Ram's house. Thus, she came to know only 2-3 days after the incident that prosecutrix was seen at the house of appellant Dhanna Ram, but even then, she did not lodge any report to the police. Rather, she talked about finding of prosecutrix for a long time, which is unnatural. Hence, evidence of Dharmani Bai (PW-3) lends credence to the fact of defence itself that prosecutrix was a consenting party.

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Ku. Brihaspati Oraon (PW-4) and Ku. Chanda Oraon (PW-9) are friends of appellant Dhanna Ram's sister and are also friends of prosecutrix. Ku. Brihaspati Oraon (PW-4) has stated the prosecutrix to be her aunt ( Mosi ) and Ku. Chanda Oraon (PW-9) has stated the prosecutrix to be her aunt ( Bua ). Both these witnesses have stated that they had seen the prosecutrix with Dhanna Ram in his house. Thus, it does not reflect from the evidence of these witnesses that prosecutrix was forcibly confined in the house of appellant Dhanna Ram. Rather, it seems that she was sitting and talking comfortably with Dhanna Ram. As such, the argument of defence is appearing more appropriate that prosecutrix has been a consenting party.

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Phoolkunwar Oraon (PW-5) was the resident of Village Patpariya, Police Station Ambikapur. As per prosecution case, prosecutrix finally reached the house of Phoolkunwar Oraon alone. When relatives of both the parties came to know about it, prosecutrix was brought back home. Thereafter, a report was lodged in the police station. Phoolkunwar Oraon has stated in her Court statement that prosecutrix had come alone to her house. Rest of the things are hearsay, as such, there is no need to discuss them further. It has been reflected from the statement of Phoolkunwar Oraon that prosecutrix had come alone to his house.

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Rajeshwar Kerketta (PW-6) brother-in-law of prosecutrix. According to his evidence, prosecutrix narrated the incident to him and then, a report was lodged to the police. As per the statement of prosecutrix, written report (Ex.P/1) was lodged on the instructions of

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Rajeshwar Kerketta, in which, she had signed. According to Rajeshwar Kerketta, prosecutrix was seen in the house of Baldev (PW-13) by the Sarpanch of Village Kaskela.

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Baldev (PW-13), resident of village Kaskela, has stated that appellant Dhanna Ram had brought the prosecutrix with him and was staying in his house as a tenant for three months. Both were doing the work of labour. The appellant had stated that he was married to prosecutrix. The affidavit (Ex.D/6) and photograph (Ex.D/7) presented by the defence corroborated the evidence of Baldev (PW-13) that appellant had told about getting married and got those photographs clicked. In cross-examination, he stated that both of them lived well in his house as husband and wife. Thus, it is clear from the evidence of Baldev that prosecutrix was a consenting party.

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After examining the above-stated evidence in detail, it would be appropriate to consider the evidence of prosecutrix herself. In her evidence, she stated that for the first time, appellant Dhanna Ram and co-accused Surendra forcibly took her to the house of appellant Dhanna Ram where her mother Shanti Bai also helped him. She was forcibly kept in the house at knife point and forced to have sexual intercourse with appellant Dhanna Ram. On the next day, they took her to village Maheshpur, which was a distance of 30-35 kms away, where appellant forcibly committed sexual intercourse, then took her to village Karinda (Lakhanpur) by bus and kept her there also. Thereafter, appellant took him to the house of Baldev (PW-13) at Village Kaskela. She tried to run away, but was restrained at knife point. She was

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threatened and kept always under surveillance. She was never left alone. She tried to run away 2-3 times, but did not succeed. When she was being dragged away on the first day, she raised an alarm, but no one came out of the house. Many things have been stated by the prosecutrix in the above form. In cross-examination, she has replied to every question by stating that appellant himself or someone else used to keep her under surveillance and used to threaten her by showing knife. On account of this, she neither ran away nor raised an alarm or seek cooperation from anyone.

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It is clear from the evidence of prosecutrix as well as all other examined witnesses that prosecutrix lodged a written report to the police after about 4½ months. In the meanwhile, prosecutrix was living with appellant, who is an adult female of 21 years of age. The appellant was already married. According to the prosecutrix, when appellant Dhanna Ram and co-accused Surendra were pulling her, her relative Yogendra Nair (PW-2) saw her. In the house of appellant Dhanna Ram, two of his friends and relatives, namely, Ku. Brihaspati Oraon (PW-4) and Ku. Chanda Oraon (PW-9) had seen her, the said fact has been disclosed by prosecutrix to her mother Dharmani Bai (PW-3). They stayed at Village Kaskela with appellant in the house of Baldev (PW13) for about three months and the said information was narrated by her to Rajeshwar Kerketta (PW-6), brother-in-law of prosecutrix. All these circumstances do not show that prosecutrix was kept at knife point and on being threatened for such a long time, she was forcibly stopped from one village to another village, from second village to third village and from third village to fourth village. Baldev (PW-13) has

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stated that they had told that they had married each other. Affidavit (Ex.D/6) and photographs (Ex.D/7) also show the same position. Baldev has also stated that they both used to work as labourers. In such a situation, if appellant had forcibly held back the prosecutrix while going from one village to another for such a long period of time, she would certainly have shouted to the neighbours while dragging her to the village and asking for help. If the said facts were informed by Yogendra Nair (PW-2) to the family members, the report was quickly lodged by them. Even when she had been working as a laborer for three months at Village Kaskela, she would have got many opportunities to lodge a report to the police station or sought cooperation from the people of neighborhood, but nothing has been done by prosecutrix and later, she has signed the report lodged by her brother-in-law. It has been reflected that keeping in view the situation of marriage not being possible, report (Ex.P/1) was lodged. Thus, from the entire evidence, it is found clear that prosecutrix must have been a consenting party and hence, prosecutrix as well as her family members who have spoken with regard to coercion by the appellant, are not found credible.

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In view of aforementioned facts and circumstances of the case, evidence presented by the prosecution has not been proved beyond reasonable doubt that prosecutrix (age 21 years) was coerced by force, rather it has been reflected that prosecutrix was a consenting party. As such, offence punishable under Sections 366 and 376 of IPC is not made out against the appellant. Therefore, finding of trial Court in this regard, is not found to be sustainable in the eyes of law.

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In the result, the appeal is allowed. The judgment of conviction and order of sentence is set-aside. The appellant is acquitted of the charges framed against him under Sections 366 and 376 of IPC by giving benefit of doubt. The appellant has been stated to be on bail, he need not surrender before the trial Court. However, his bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC. If there is no need to appear in the Superior Court, he will be deemed free from bail bonds. If the appellant has deposited the imposed fine amount, the same shall be returned to him.

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Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.

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Sd/--

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(Sanjay Kumar Jaiswal)

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Judge

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Yogesh

Dhanna Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dhanna Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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