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Judgment
Since, both the appeals arise out of a common judgment, they are decided together.
The appeals preferred under Section 374(2) of the Criminal Procedure Code are directed against the common judgment dated 26.10.2018 passed in Session Case No.98/2014 by the learned Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj (C.G.), wherein the Appellants have been convicted as under:-
Appellant's Name
Conviction
Sentence and fine
Anil Kujur
Sections 376(1), 323, 506- B & 315 of the Indian Penal Code
RI for 7 years with fine of Rs.2,000/-, RI for 3 months with fine of Rs.200/-, RI for 3 years with fine of Rs.200/- & RI for 5 years with fine of Rs.1000/- respectively, with default stipulations.
Anita Renu Kujur and Smt. Ishwati Kujur
Section 315 of the Indian Penal Code
RI for 5-5 years with fine of Rs.1000-1000/- respectively, with default stipulations.
In the present case, Appellants Anil Kujur and Anita Renu Kujur are brother and sister and Smt. Ishwati Kujur is their mother. Prosecutrix (PW-1) is a major lady and at the time of incident, she was aged about 24-25 years. According to the case of prosecution, in the year 2009, the victim was resided in a rented house of one Laxman Soni at Namnakala, Ambikapur (C.G.) along with her friend Avita Kachhap. After some time, Avita left the rented house and started residing separately at hostel but, the victim and Avita used to meet with each other. Raju is brother of Avita who was also residing in a separate rented house at Ambikapur. Appellant Anil Kujur was resided next to Raju's Room. Once Avita along with the victim went to meet Raju, accused Anil also came their and got acquainted with the victim. Further case of prosecution is that Anil being well acquainted with the victim, both of them have shared their mobile numbers and started talking on the phone. Anil used to tell her that he wanted to marry her, but the victim at that time refused to marry him, however, she informed her family members about the proposal of Anil. Thereafter, Anil often visited the room of the victim which is situated at Namanakala, Ambikapur, at that time, Anil was residing at village Kusmi and was working as Patwari. It is alleged that on the first time in March 2011, he took the victim to his room and committed forcible sexual intercourse with her on the pretext that their marriage is fixed. Further case of the prosecution is that even thereafter, on the pretext of marriage, Anil had committed sexual intercourse with the prosecutrix on various occasions due to which, she became pregnant in the month of September 2012. When the Appellants came to know about pregnancy, they abused the victim and told her to abort. When she was six months pregnant, the Appellants Anita Renu Kujur and Smt. Ishwati Kujur took her to Arogya Niketan Hospital Ambikapur, which is owned by Dr. Kiran Agarwal, allegedly, they had admitted her and aborted her child. The victim remained admitted in the hospital from 11.04.2013 to 13.04.2013. The delivery took place on 13.04.2013 and a live baby boy was born but, he died after 6-7 hours of delivery. When Appellant Anil Kujur refused to marry the prosecutrix, she lodged a complaint against the Appellants at Police Station Gandhi Nagar, Ambikapur. A settlement was also entered into between the two parties on 26.06.2013, at that time Appellant Anil Kujur promised the prosecutrix that he would marry her. When Anil did not marry her, she lodged the FIR (Ex P-17). The medical examination (Ex. P-4) of the prosecutrix was done by Dr. Shashikala Tirki (PW-6). The statements of the prosecutrix and other witnesses were recorded under section 161 of the Cr.P.C. and after completion of the investigation, the charge sheet was filed. The learned Sessions Judge framed charges against the Appellant Anil under sections 376(1), 323, 506-B and 315 of the Indian Penal Code and Charges were framed against Appellants Anita Renu Kujur and Ishwati Kujur under Section 315 of the Indian Penal Code. In order to implicate the Appellants in the offense under consideration, the prosecution examined 10 witnesses. The statements of the Appellants were also recorded under Section 313 of the Criminal Procedure Code, wherein, they have pleaded their innocence and false accusation, however, none of the defense witnesses were examined by them.
After completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in paragraph 2 of this judgment. Hence, this appeal.
Learned Counsel appearing for the Appellants submits that without any cogent and sufficient evidence available on record, the Trial Court has convicted the Appellants. The prosecutrix is a major lady and from the admission made by her and her family members, it makes clear that she was the consenting party of the alleged Act committed by Appellant Anil. She had physical relations with Appellant Anil for about 2-3 years and never made any complaint against him. Even after she became pregnant, she did not lodge any complaint against him. Further, after the delivery/miscarriage of her child, she did not lodge any complaint against him and when marriage of Appellant Anil was fixed with another girl, the matter was reported by the prosecutrix. As the prosecutrix was a consenting party, therefore, the Trial Court has wrongly convicted the Appellant Anil in the present case. Hence, conviction of this Appellant is not sustainable.
It is further submitted by learned Counsel appearing for the Appellants that with regard to the offence punishable under Section 315 of the IPC, there is no material available on record to show that the prosecutrix gave birth to a child and a live child was born and died after 6-7 hours of birth. There is also no evidence on record to show that the prosecutrix was ever admitted in Arogya Niketan Hospital, Ambikapur. Investigating Officer D. Toppo (PW-8) categorically admitted that according to the admission register of patients, the Victim has not been admitted in the said hospital during the period from 01.04.2013 to 27.04.2013. Hence, conviction of these Appellants is also not sustainable.
On the contrary, learned State Counsel opposes the appeal and supports the impugned judgment. He submits that the Trial Court on due appreciation of the evidence, rightly convicted the Appellants.
I have heard learned counsel appearing on behalf of the parties, considered their rival submissions and gone through the record of the Court below minutely.
Undisputedly, Prosecutrix (PW-1) is a major lady who at the time of incident was aged about 24-25 years. In her Court statement, she deposed according to the case of prosecution and stated that being acquainted with Anil, both of them have shared their mobile numbers and started talking on the phone. Anil used to tell her that he love her and wanted to perform marriage with her. She further deposed that on her denial, Anil used to pressurized her for marriage. In paragraph 5 & 6 of her examination-in-chief, this witness deposed that Anil used to ask her to visit his room situated at village Kusmi and one day when she went to his room, on pretext of marriage, Anil committed forcible sexual intercourse with her, during that time the prosecutrix was also sustained injuries on her hand. Anil was also threatened her for life. In paragraph 8 of her examination-in-chief, this witness deposed that on the date of incident itself, she told about the incident to her family members. Thereafter, also Anil used to ask her to visit his room situated at Kusmi and there also on pretext of marriage, he committed sexual intercourse with the prosecutrix. In paragraph 9 of her examination-in-chief, this witness deposed that when she often went to her rented room situated at Ambikapur, there also, Anil used to visit her room and committed forcible sexual intercourse with her due to that she became pregnant. In paragraph 10 & 11 of her examination-in-chief, this witness deposed that when she was having seven months' pregnancy, she went to Anil, he pressurized her for abortion and when she denied, he abused her and also beaten her. Thereafter, Appellants Ishwati and Anita admitted her in Arogya Niketan Hospital and left her there. When she suffered from pain, then Dr. Kiran Agrawal told her that Ishwati and Anita admitted her in the hospital for abortion. In paragraph 15 & 16 of her examination-in-chief, this witness further deposed that on 13.04.2013, she gave a birth to a male child and after 3-4 hours of delivery, the child has died, thereafter, Dr. Kiran discharged her from the hospital. This witness further deposed that after the said background, Anil was still talking to her and told her to perform marriage with her. On 05.05.2013, the Appellants denied performing marriage with the prosecutrix, thereafter, she made a complaint against the Appellant.
In paragraph 21 of her cross-examination, the prosecutrix stated that when she was living in Namnakala, Anil used to came to meet her, further admitted that she never told to anyone about Anil's visit nor made any complaint against him. She further admitted that her family members went to Anil and talked to him about their marriage. In paragraph 28 of her cross-examination, this witness stated that Anil taken her to his home for having tea together, where he kissed her and committed sexual intercourse with her, on that time, the door was locked from inside. In paragraph 30 of her cross-examination, this witness stated that she was not tied in the hospital and was free to go anywhere. In paragraph 34 of her cross-examination, this witness stated that after abortion, she did not lodge any complaint in Police Station about her forced abortion. In paragraph 36 of her cross-examination, this witness categorically admitted that every time when she made complaint against Anil, in that complaints she stated about ignoring of marriage by Anil by saying that he would marry after his sister's marriage. Friend of prosecutrix Avita Kacchap (PW-5) also deposed that there was a love relationship between Appellant Anil and the prosecutrix and physical relation was also developed between them.
On minute examination of statement of the prosecutrix, it makes clear that there was a love relationship between Appellant Anil and the prosecutrix from last 2-3 years. For the first time, the alleged incident was occurred in the house of Appellant Anil. From the statement made by the victim in paragraph 28 of her cross-examination, it appears that the intercourse which was committed by Anil was done with the consent of the prosecutrix and it was not a forcible intercourse. From the admissions made by the victim, it also established that thereafter also, on various occasions sexual intercourse was done between them due to that the victim got pregnant. Thereafter, also the victim did not make any complaint against Anil. After her abortion also, she did not make any complaint against any of the Appellants. Further, from the admission made by the victim in paragraph 36 of her cross-examination, it is well established that Anil never refused to perform marriage with her, while he used to say that he would marry after his sister's marriage. Looking to the entire statement of the prosecutrix as well as statement of her friend Avita Kacchap (PW-5), it appears that the prosecutrix who is a major lady, was the consenting party in the alleged act committed by Anil and there was a love relation between them, therefore, conviction of Appellant Anil under Sections 376(1), 323, 506-B & 315 of the Indian Penal Code is not sustainable.
With regard to conviction of Appellants Anita Renu Kujur and Ishwati Kujur under Section 315 of the Indian Penal Code is concerned, I do not find any cogent and reliable evidence in this matter as Dr. Kiran Agrawal nor made witness neither examined in Court. Further, Investigating Officer D. Toppo (PW-08) in paragraph 18 of his cross-examination, categorically admitted that on the basis of statement of the prosecutrix, he checked the admission register of patients attested by the Doctor, wherein, from 01.04.2013 to 27.04.2013, name of the victim has not been registered. Therefore, it cannot be said that the victim had an abortion/delivery and a male child was born and died within 4-5 hours of birth. There is also no evidence available on record to show that the Appellants have ever beaten the victim or any act has been committed by them. Thus, conviction of these Appellants is also not sustainable.
Thus, the impugned order dated 26/10/2018 passed in Session Case No.98/2014 by the learned Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj (C.G.) is set-aside.
Consequently, the appeals are allowed. The Appellants are acquitted of the charges framed against them.
It is reported that the Appellants are on bail. Their bail bonds are not discharged at this stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C.
Records of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.