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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Narendra Kumar Vyas, J.
Gorakhnth Sharma S/o Devcharan Sharma - Appellant
Versus
State of
CRA No. 891 of 2019
Decided On :
(A) Criminal Procedure Code, 1973 - Section 374(2) - Indian Penal Code, 1860 - Sections 377, 376, and 304 - Conviction and sentence of the appellant under multiple sections of IPC for unnatural sex and murder - The trial court relied on the dying declaration of the victim, which was deemed insufficient due to lack of corroborative evidence and the relationship between the parties. (Paras 1, 12, 14, 16, 19)
(B) Dying Declaration - The court emphasized that a dying declaration can only be the basis for conviction if it inspires full confidence and is corroborated by other evidence. (Paras 16)
(C) Legal Interpretation - The court found that the definitions of Sections 375 and 377 IPC create a repugnancy when applied to marital relationships, leading to the conclusion that the offences under these sections cannot be made out between husband and wife. (Paras 14, 15)
Facts of the case:
The appellant was convicted for unnatural sex and murder of his wife based on her dying declaration, which was later challenged for lack of corroboration and legal grounds.
Findings of Court:
The court found that the trial court's reliance on the dying declaration was misplaced and that the conviction was based on perverse findings.
Issues: Whether the offences under Sections 376 and 377 IPC apply in a marital context and whether the conviction under Section 304 IPC was sustainable.
Ratio Decidendi: The court ruled that the definitions of Sections 375 and 377 IPC do not support a conviction for unnatural sex between husband and wife, and the dying declaration lacked the necessary corroboration.
Result: Appeal allowed; the appellant acquitted of all charges.
Judgment :
(Narendra Kumar Vyas, J.)
1. 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
The court held that Sections 375 and 377 IPC do not apply to marital relationships, and a dying declaration must inspire full confidence and be corroborated to support a conviction.
(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 o....
If a man and a woman indulged in anal sex with their free consent in private, no offence under Section 377 IPC is made out.
Point of Law : Sexual abuse on child - ‘carnal intercourse’ - Offence under section 377 would therefore arise when there is ‘penetrative intercourse’ which is ‘against the order of nature’.
Cruelty, rape and hurt – Forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A IPC , but cannot be prosecuted as rape under Section 376 IPC.
The court found the dying declarations credible, linking the accused's rape to the victim's suicide, justifying conviction under IPC Sections 376 and 306.
In a marital relationship, consent is implied, and Section 377 IPC does not apply to consensual sexual acts between spouses.
The court clarified that a conviction under Section 304B for dowry death does not substitute for a murder charge under Section 302, emphasizing the need for distinct evidence for each charge.
Simultaneous convictions under IPC sections for dowry death and murder require clear evidence for the latter; presumption of dowry death applies if cruelty is established prior to death.
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