IMPORTANT POINTS
(1) Rape – If age of wife is not below 15 years then any sexual intercourse or sexual act by husband with his wife cannot be termed as rape.
(2) If provisions of latter enactment are so inconsistent or repugnant to the provisions of an earlier one then the two cannot stand together and earlier is abrogated by the latter.

JUDGMENT (CAV)

This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 11.02.2019 passed by Additional Sessions Judge (FTC) Bastar Jagdalpur in Sessions Trial No. 32 of 2018, by which the appellant has been convicted under Sections 377, 376 and 304 of the IPC and has been sentenced to undergo rigorous imprisonment for 10 years to pay fine of Rs. 1000/-, in default of payment of fine to undergo additional RI for one year under Section 377 IPC, RI for 10 years to pay fine of Rs. 1000/- in default of payment of fine to undergo additional RI for one month under Section 376 IPC and RI for 10 years to pay fine of Rs. 1000/- in default of payment of fine to undergo additional RI for one month under Section 304 IPC with a direction to run the sentences concurrently.

2. The prosecution case, in brief, is that the appellant was the husband of the victim who was working as driver. On 11.12.2017 in the night the appellant committed unnatural sex with the victim against her will and thereafter he left her there and went to work. It is alleged that the appellant inserted his hand in the anus of the victim due to which the victim complained pain and narrated the incident to his sister and neighbours, subsequently she was admitted to Maharani Hospital for treatment from where a report was made to police Station Bodhghan and offence under Section 377 IPC under Crime No. 419/17 was registered against the appellant. Dying declaration of the victim was recorded before the Magistrate on 11.12.2017 wherein she has made a statement that due to forceful sexual intercourse by her husband she became ill. The same statement has been recorded in subsequent statement also. The victim during treatment died in the hospital on 11.12.2017 thereafter merg intimation No. 61/17 under Section 174 CrPC was also registered and offence under Section 304 of the IPC was also added and the appellant was arrested on 11.12.2017. On completion of usual formalities, challan was filed before the Court on 09.03.2018. Learned Sessions Judge on hearing the parties and after appreciation of evidence and material on record convicted the appellant as mentioned above.

3. In order to bring home the guilt of the appellant, the prosecution has examined as many as 16 witnesses, Kalawati Sharma (PW-1), Taraknath Sharma (PW-2),Dr. Kolaskar Shashikant (PW-3), Indu Sharma (PW-4), Lalita Taram (PW-5), Smt. Archana Dhurandhar (PW-6), Priti Vishwakarma (PW-7), Kanchan Vishwakarma (PW-8), Dr. Rajgupta (PW-9), T.P. Pandey (PW-10), R.P. Baghel (PW-11), Dr. Khileshwar Sahu (PW-12), Kumkum Sahu (PW-13), Ketanram Kashyap (PW-14), Parmanand Bhoyar (PW-15), Surendra Baghel (PW-16). The accused did not examine any witness in his support only statement of the accused was recorded under Section 313 CrPC.

4. The victim was admitted in the hospital where her dying declaration (Ex.P-29) was recorded by the Executive Magistrate R.P. Baghel (Ex.P-11) and merg intimation (Ex.P- 29) under Section 174 CrPC was recorded wherein she stated that due to unnatural sexual act committed by her husband, she became ill and also stated that she cannot explain how she was injured and she has to give any further information. The prosecution witnesses (PW-1) Kalawati Sharma, (PW-2) Taraknath Sharma were examined before the Court, they have turned hostile and have not supported the case of the prosecution.

5. Dr. Kolaskar Shashikant (PW-3) who has conducted the postmortem of the deceased was examined before the Court wherein he has stated that two perforations on rectum were present, 1st perforation is present on anterior side of rectum approximately 1 cm above the pelvic floor and 2nd perforation is present on left side of rectum about 2 cm above the pelvic floor. He opined that the cause of death was due to peritonitis and rectal perforation and duration of death on 11/12/2017 at 9.00AM and proved his report under (Ex.P-9).

6. R.P. Baghel (PW-11) the