Suklal @ Sukhlal Tandon Vs State of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 23.04.2007 passed by the learned 7^th Additional Sessions Judge Raipur (C.G.), in Session Case No.103/2006 whereby the learned Judge has convicted and sentenced the appellant as under :

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Conviction	Sentence
U/s 366 of IPC	RI for 7 years and fine of Rs.500/-, in default thereof, 3 months additional RI.
U/s 342 of IPC	RI for 6 months and fine of Rs.500/-, in default thereof, 3 months additional RI.
U/s 376 of IPC	RI for 7 years and fine of Rs.500/-, in default thereof, 3 months additional RI.

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As per the prosecution story, the prosecutrix (PW-12), aged 28 years, resides in Village Sonpairi with her husband and six children, engaged in farming activities. On July 25, 2005, at around 8:00 AM, she was brushing her teeth in front of her house when she called out to her daughter, saying, “come and hold the another child; she have to go to the field.” At that time, Dinesh’s wife, who was on her way to fetch water, overheard this and assumed that she was being abused. Thinking this, Sadhan, Shobha, and Dulori caught hold of prosecutrix’s hair and assaulted her. The fight was eventually settled. Later, she went inside and was breastfeeding her child when, at around 9:00 AM, accused Sukhlal entered her house, pushed the child aside, forcibly took her to his house, locked her in a room, and kept her confined there the entire day, intimidating her. Then, at around 10:00 PM, Sukhlal threatened her, forced her into a jeep, and took her to the house of Sumer in Village Bundeli, where he kept her in a separate room. That night, he raped her and continued to do so for ten days while holding her captive. When she protested and fought back, Sumer, his wife, and their son became aware of what was happening. They rebuked Sukhlal and drove him away. Sukhlal then took her to Village Bhutkapara and kept her at Premlal’s house, where he again raped her at night under threats. Two days later, when she confided in Premlal about the incident, he scolded Sukhlal and drove him away. Sukhlal then took her to Village Charmatha, where he kept her at Guddu’s house and raped her again that night. The next day, when she narrated the incident to Guddu, he abused Sukhlal and told him to leave. At some point, when Sukhlal was away from Guddu’s house, she escaped, boarded a bus,

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and reached Village Adsena, where she informed her father about the incident. She then went to the police station with her husband and father and lodged a report. After completion of investigation, a charge sheet was filed against the appellant.

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So as to hold the Appellant guilty, the prosecution has examined as many as 13 witnesses and exhibited 11 documents. The statement of the Appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, and stated that he had a previous love affair with the prosecutrix (PW-12) which was known to all in the village and the prosecutrix had told him that if he did not take her along, she would commit suicide. Due to this threat, he had gone with the prosecutrix at her behest.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 23.04.2007, the learned Judge has convicted and sentenced the appellant for the offence as mentioned in para-1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that the prosecutrix (PW-12) being a 28-year-old married woman is a consenting party. The incident report has been lodged with a delay of about one month for which no satisfactory explanation has been given and the prosecution witnesses themselves, who are relatives and neighbours of the prosecutrix, have confirmed the defence of the appellant that the two had a love affair and the prosecutrix was a consenting party. Thus, the conviction of the appellant is not based on valid evidence. Therefore, the impougned judgment may be set aside and the Appellant may be acquitted.

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Per contra, learned counsel appearing for the State,

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supported 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 available on record including the impugned judgment.

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It is clear from the entire prosecution evidence that the incident is said to have taken place on 25/07/2005, the report of which was lodged by the prosecutrix (PW-12) on 24/08/2005 with a delay of about one month. This delay has not been satisfactorily explained in the prosecution evidence. The prosecutrix (PW-12) herself has stated in her Court statement that when her husband and children were present at home, the appellant forcibly picked her up from the house and took her to his house in their presence. But it is noteworthy that the husband did not lodge any report in this regard to the police and the husband has not been examined by the prosecution either. In such a situation, at first glance, no reason is clear for the delay in filing the report by the prosecutrix.

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Dr. Snehlata Singh (PW-6) has conducted a medical examination of the proseucutrix (PW-12) and has submitted a report Exhibit P-4, according to which neither any injury has been found on the prosecutrix’s body nor any clear opinion has been given in this regard that the prosecutrix was raped forcibly. No chemical test report has been produced in favour of the the prosecutrix either.

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The prosecutrix (PW-12) has supported the prosecution case in her Court statement according to which the appellant kidnapped her from her house in front of her husband and child and first took her to his house, then took her in a jeep to his uncle Sumer's house in village Bundeli and kept her there for 10 days. Thereafter, he took her to his sister's house in village Bhutakapara, after that

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to his uncle Guddu and Anandbai's house in village Charbhatha and kept having physical relations with her at all places. But it is noteworthy that during this period of about one month, no report was ever filed by any party, nor does it appear that the prosecutrix (PW-12) opposed the appellant.

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If I consider the statements of the prosecution witnesses as per the argument of learned Counsel appearing for the appellant, Ishwar Kumar Tandon (PW-1), a resident of village Sonpairi, has stated that while returning from the field at about 10.30 am, he saw that the appellant was walking ahead with a cycle and the prosecutrix was walking 10-12 steps behind him. Later, he came to know that the prosecutrix had lodged a report against the appellant. Thus, according to this witness, the prosecutrix was an consenting party. Similarly, Shatrughan Dhritlahare (PW-5), who is also a resident of village Sonpairi, has also stated that while working in his farm in the morning, at about 11-12 in the day, he saw that the appellant was taking the prosecutrix (PW-12) on the bicycle handlebar. In cross-examination, he also admitted that both the parties had a love affair since the past and both were going laughing. Similarly, Shivkumar Khande (PW-7) who is a resident of village Charbhatha also stated that the prosecutrix (PW-12) is his aunt-in-law and the appellant and the prosecutrix came to his house on foot and stayed there for one night and left in the morning. He came to know that both of them had eloped and the prosecutrix had asked him to find a room. On his inquiry, the prosecutrix told that she had come with the appellant herself. Rumel Tandon (PW-10) who is the brother-in-law of the prosecutrix told that the appellant was trying to take the prosecutrix to his house by holding her hand, which the

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prosecutrix was resisting. But this witness also admitted in cross-examination that the going of the prosecutrix with the appellant had brought disrepute to them and there was talk about them in the village. Thus, the statement of brother-in-law Rumel Tandon (PW-10) also confirms that both the parties had a love affair since the past and the prosecutrix was a consenting party.

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On the basis of the above discussion, when the prosecutrix is a major married woman. The report of the alleged incident has been lodged with a delay of one month for which no satisfactory explanation could be given and according to the prosecution witnesses, both the parties have had a love affair since the past. The prosecutrix has been roaming with the appellant for about a month on her own will. In such a situation, the offence under Sections 366, 342 and 376 of the Indian Penal Code is not proved. The conviction of the appellant is not based on valid evidence, hence the impugned judgment is not found to be sustainable.

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Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted.

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14.It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C.

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Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any.

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Sd/(Sanjay Kumar Jaiswal) JUDGE

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Shubham

Suklal @ Sukhlal Tandon v. State of Chhattisgarh

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Suklal @ Sukhlal Tandon v. State of Chhattisgarh

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