@ -t- Singte Bencft IF JODICATUSE AT BILASPUR. C.G. i&2__/2i (Crinnnal AppealUadei sectiou 374 (2| o£Ciimiaal Pioceduie IN JAIL 'fi-o^- GCEK&to' ^1<LK 0^°-1 p ^^ ^^^ lelalNai, agedabouflQyears, S/oBholaNai, R/o villageHaripur Police chowki Bhatgajon, police station. | Pra-tappur, Distt, S@rguja(C.G.| |j State of Chhattisgarh througli the Police chowld Bhatgaos, pouce station Pratappur, Distt. Sui^uja, C.G. CODJ -7\1 iJ^^^^i^^^Jf8®s:^Ni^lsN^ S^ HI6HCOURTC^CHH<<TFIS6ARHATBIU(SPUR SinqleBench: Mon'ble Sliri^stice NliD RflmsahSt^ Cntninalftwision .102/2006 Ambeldl Nai Vs. State of Chhaft'isgarh Rresent: ShriVishnu Koshta.AclvocatefortheAppetlcait. Shri Sumesh Bajaj, Sovt. Advocate for1+ie State Kt 1 :iH^.ii 11 JU&6MENT C&eliveredon23.03.Z006) This appeal is directed dgains-t-the judgment dated 23^)1.2QQ6 delivered by the lecB-ned 2" Addi-WondI Sessions Judge, Surcypur, Distpict Sui^uja m Sessions Gi^ NQ.64/2005 i^ »wasconvicteclunder5ei::fion450,376(l)dnd 506-B IJ'.C. and uws senfisncecf to undergo rigorous impiiseinment for seven years and a fine of ^Rs.l^XX)/-, under Section 450 I.P.C., to undergo Figoi'oys imprispnment for seven years and a fineof Rs.lCXX)/-, under Section 376(1) I.P.C.and toundergo rigorous imprisonment foroneyan'ancl to pay a fine of Rs.500/- under Section 506-B I.P.C. It was also orderecl •that in default of payfflent of fine, the appellont shall undergb additional RJ. for pne month ecich under Secfion 450 (& 3%(1) IJ».C.' and RJ. for 15 days under Section 506-B IlPX". re^ectivelY. The sentences were orderec)to punconcurrentl^. 2. Briefly stated tiie pro^cution story is that on 10.t2^20^(m vyiage Hwipur theprosecutrix was^alone in thehousewitlT Ir^jiH^ children. Subhag Ram P.WA I'iusyarid of the prosecuti'ixlliiact villc^Bwdoli.AtaltoutltXtOl^.whilet^prosecirh'ixw^ ^ \'t there wus a knock at the door. On opening the door -riie oppellont forcibly entered the house ond committed rapeon tt^prosecutrix after threatening her art' ttie point ofa knife. After committing raipe, the appellant w®ntawdy. The prdsecutrix narrated the Jncident immediately to Kunti &ii P.W.3, groOTd-mo'rtier of •the oppellant in detail and also to Tara Bai P.W.2, 6ita Prasad P.W.5, the village Goniiya. Husbond of the prosecutrix returned to village Haripur on 11.122004. FJ.8. Ex.P-8 vws lodged at 3.10 P.M. on 12.12.2004 at Police Station Pr'dtq>pur situated at a distance of 40 kilometers. The prosecutrix was sent for medical examination. Dr. Mrs.Rose Bula TirkeyP.W.9 examined the prosecutrix on 13.12.2004 and found no marks of injury cmywhepe on the persan of the prosecutrix. Vagina admitted two fingersa%ilyiThepposecutrix being a married lady, it w^ opinecl' 1+iat ;shei;(^ cccusfoffled to sexual ihtercourse ond no ^e^inife^bgfl'iion coUlcl'be given pe^M'-ding recent intercourse. Vdginal s^^vw^ff'eptweA^seo^o^ss'rt to the concerned Potice Stotion. C?ne^®lie|iy^cf^Bn<^pM«aFw^^ % from the appeltant on 21.12,2004 'v^Sx^.4.; S^^wSfflvjl slides were also seized from the Gonstable viclfr@i(;P.5i Thesearticles were sent for chemical examination to the Forensic Science Laborotory, Raipur for confirmation of semen ond human spermatQzoa. The report of •the F.S.L. was tendered as eviclenceunderSect'ion 293 CFP.C.dnd was markedasEx.P.16.Asper report, presence of semen and human spermatozoa was confirmed on the raginat slides of 'the prosecutrix, though not on the underwedrof the appellont. After completion of investigafion, the appellant was prosecuted uneter Section 450, 376(1) and 506-B of the I.P.C. Charges were fromed accordh'igly by the learned Additiorfal Sessions ^udqe. The appellant tibjured the guilt, pleaded irinoGence.amtileid^no evidence in defence. The prosecutipn examined^^ i^i^ witnesses. Relying upon the evidence led by •rfie |)i'osecu'tji«i^"tHje ^ K ;n: i;:i,:-' IR" IT'51 learned trial Judge convictecl anct sen-tenced the appellan-t- os aforesiid in paragraph 1. 3. Shri Vishnt.l Koshta, lear'ned counsel for ths appsll'MTt hos assaifed the convicfioh of •tfie lappeHal'it for theoffences aforesaid on the ground thd1- the ·delay.in lodging the FJ.R. on 12.12.2004 was not o^lainedsatisfqctorilybytheprosecutrix.Itwasfurthercontended •t'hat the absence of onY injury on the person of the prosecutrix renclerecl her testimony unworthy of credit.' The innocence of the appellant wois further ftirtifjed by the report of the F.5.L. Ex.P.16 wherein the . presence of 'semen or human ^ierfflatozod on his underwear was riot confirmed. The •I'estimony of Subhdg Raffl P.W.4 in paragrc^h 8^»^^i*efepi^^ilew'gu^ informed^hiffl 'rf^'the al^llcmt^^^ her. l4^1y,refewing ^ par^r^h 9^^o^ w^ poirited out 1hat 1+ie oppellcOTtlitad been fafsety implicated due to a prevjous enmrty since the •feriier of the (^pelhant proclalmect that l+ie^prosecutrixusedwitchcraft.Thefestimon^ Si'tO Prasad P.W.5, this vilfdge ^w/iya vms also referfed to substanticrte the inhocence of •the<^{sellant. 4. On the other hancl,.5hri Simesh Bajaj, learned fiovernment Advocate argued in support of 1+ie ifflpu9ned judgment and contended that the absenee of injur-ies on tfe person of •Hie prosecutrfX by itself cbuld not be a ground for disbelieving her •fesfimony'^ichhadstobd •the test of cross-examination ond inspired confidence. Me;<wnfen<i&Bl thatthe testimQrryof6itapro»idP^.5,thevitlagie(^^^^e^ ^dgt^h9ofthe1%stiiHOnyofKurrt-iBarP.W3cleartyi^^led|^ ^ttaPro^,1^eyiHage<^/^wdstdkin3sid^withthe<^ yms trying to hush up the ma¥ter. It w^.strenuousl^ cu'gjeidjiStl'ia'l Kunti Bai P.W.3 is :^s'yvnihvRo^her::of:-^^;cspf^^ categorically narrated thdft-he ^rosecBtrixihacl ^itnmedw|ftsl|§|^|j|^e| occutrence can»to her.cr/mg^caid tol^ ,; r ''y: i':. S-Bi asasa, fsi •"••^ ".^IN E;jjyaydi*—t ^^ F forcibly entered her house andcdmmitted nspe onher.So fas' as the report of F.S.L. Ex.P.16 is concerned, learned Sovernment Advocate argued that the prosecutrix being a married womon and her medical examination having be'fen conducted after about two days, the said report vws ofno avail either for the prosecution or the defence. 5. HavingheardrivalcontentionS.Ihaveperusedtherecord. The prosecytrix, a married woman aged 35 years, hds deposed that on the night of occurrence while die was sleeping insicle the house with her minor children, Aie oppeltdnt shouted and asked her to open the door. On opening the door the appetlont dsked for water ond suddenly grdbbed her, threw her on the ground and holding a knife in his hond and threatening to kill if she diouted, committed rape on her. I have minutely gone through the testimony of the prosecytrix ond find that she has stood •the tesf of cross-examination. So far as her testimony in pcragraphs 14 & 15 and 17 is^concemed, although itemerges that ^ie did not shout, yet it is explained by the foct that the oppellant |^:iS>hs|^n3^<t knifewK^l^^t^^ ;;not1o^sBout.^'; ^ .;^; '. •'^^^ ' ' .. 6. ? Thetestimt^ of^e proSeaitrixisfully^M^ Bai P.V/.3. This witness is the grand-mo-ther of the appellant. 5he hdS caitegorically narrorted thdt the prO^cutrix came to house at night crying and told her that the (ippellant had forcibly entered the house and tlireortening her at ttle point of knife commifted irope on her, There is absolutely nothing to show that this wi+ness |would fqlsely implicorte her grand-sonand take sicleswith the proacu-tjr'ix. Tara Bai ! P.W.2 is another witness who supports the testimony of thje pro^cutrix by deposing •Hiori- imfflediately after the oqcuprence th^ prosecutrix; had narrated tha* the appellont had after •forabK/,t entering her house commitedrdpeon her. Subhog Raffl P|W. 4|l'iB^ia[s^| flsserted .that.on his 'pelurn+he prosecutrix had 1x>ld Qppettantjiad qfter pushing her on the ground oyti-ngeicl lier^flBjsl' ssag! i'?m(t ^y :.-./' < 5o far as the testimony of 6ita Prasad P.W.5, the village ffontiya \s concerned, it clearlydppears ttiat he vws taking sides with the appellgnt right from the very beginning dnd trying to hush up the moctter; Kunti Bai PW.3 has also stated that the pro»cutrixhad while irtforming her about the incident at night told her that to hide her diame she had not informed the ffontya c&>oui -^he. inciclent of rape. This wholty exptnins the testimony of fiita Prasad P.W.5 that the prosecutrix informed himthat the oppellcmt had gone to her houseatnightoOTdwcisthreateninghertbopenthedoot'. 7. 1-laving thus considered the testimohy of the prosecutrix P.W.l, Tara Bai P.W.2, &bhag Ram P.W.4 and fanti Bai P.W.3,1 am of the Considered opinion that it inspires confidence ond is worthy ofplacing retiance on. 5o •fdr as the detay m lodging the FJ.R. is concemed^the F1.R. Ex.P.Swuslodgedon 13.12.20)4 at about 3.10 P.M. at P.5. Protoppur which was at a distcOTce qf about 40 kilometers. Subhug Ram P.W.4 hais stated Ihat he had gone to the nei9hboyring village and had returned on the next day after the occurrence. Considering the conduct of the prosecutrix in immediatety informing about the occurrehcetothegr^d-motherpfth&oppeltqntfantiBniP.W.S.Tara Bai P.W.2 and 6ita Prdsad P.W.5, the vMo.y. Sont/ya and also to her husbflnd on his retum to'riievillageon the next day and also the fact that P.S.Pratoppur was situated at a distance of40 kilometers from the plaee of occur'rence., the delay in lodging •thej FJ.R. is satisfactorily explcMned. | 8. 'nie argument that the •testimony of the prosecutrixjis liable to be disbeliewd since the mediaal eyidence of Dr, Mrs. Rose Bula Tirkey did not coproborate her is required to bestdted only to t^e nejeeted. I •'" •-:.: f ' , Thei prosecutrix is a marpied womah having children. Tlie appellant i had committed I'apeon her at the poiivt of a knife. Tl'i^refore^.-the^ abs?nce of omy extemal injuries on the person of; the |pi*ose<:iLrfpixJ| cannot be aground for disbetieving the testimony ofl+ie pij-ossetrtffix.K|i '•itf^ 6^ '} 41^ 9. Paragraph 9 of the testimony of Subhag fcxm P.W.4 shows that forther of the oppellant hoal dlleged thdt the prosecutrix vws indulging in witchcrdft and on this count there was a quarret between Subhag Ram P.W.4 cmd Bhola, father of Ae (^pellant. Howe^.animosity is a double edged weopon and mer'ely on this ground the wholly peliable testimony of the prosecutrix which is fully corroborated by Tard Bai P.W.2 oind tCunti Bai P.W.3 cannot tie bruslied asideds unreliable and unworthy of credit. 10. The arguinent of. the tearned counsel for the qipellant that SubhagRam P.W.4 had admitted in cross-examination that his wife had informed only doourt "Dcinyidasf hos bwn considered by me. There is iabsotutely nothing on recdrd to explain ^\e.word*Dangadasi". No further clarificortion was soyght by the ele'fence from this witness on this point. In viewofthe clear cssertion by Subhcg ttem P.WA in paragrciph 3 that his wife, the pro^cutrix, had informed him that the d^dlonth^outm^dhermoclestycrfterpuAing her on the ground, the iBSfjtnony in;para9nph 8 does not benefit the appellar^ :.indnner'.":':: 1:/ •- :;• • . : - . . ^, : ' It. J-laving •Hius?consi|ferecl the eviclence ted by the prosecution in itsentirety.Iamoftheconsicleneclopinionthort-theconyictibnpfthe appellant under Section 450, 376 (1) and 506-B I.P.G. <md the sentences awarded thereunder by the learned trial Judge are welt founded ond calls for no interference. 12. In the resutt, thiSBppeal being devoid of meritis dismissed._ •< Sd-f Judge