E s HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & .HON'BLE MR. R.L. JHANWAR, JJ. Crimmal Appeal No. 943 OF 2000 APPELLANT/ ACCUSED (IN JAIL) VERSUS RESPONDENT Bisheshar Alias Dwari Nai, Aged about 45 years, S/o Moharsai Nai, Occupation Cultivation, Resident of Ghoraghati Police Station and Tahsil Sarangarh, » District RAIGARH M.P. State of Madhya Pradesh, Through District Magistrate Raigarh, Distt. RAIGARH M.P. APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:- Mr. Abhay Tiwari, Advocate for the appellant. Mr. Arun Sao, G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 06/09/2010) The following iudgment of the Court was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 6/3/2000 passed by Second Additional Sessions Judge, Raigarh in Sessions Trial No. 183/98 whereby and where under after holding the appellant guilty for the commission of ' rape with Karmabai after confining her and voluntarily causing hurt to her, convicted the appellant under Sections 376, 323 & 342 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 2000/-, in default of payment of fine amount additional rigorous imprisonment for 6 months, rigorous imprisonment for 6 months & rigorous imprisonment , for 6 months. The judgment is impugned on the ground that without there being any incriminating evidence against the appellant/accused connecting him with the commission of the crime in question, learned Second Additional Session Judge has committed an illegality by convicting and sentencing him as aforementioned. , Brief case of the prosecution is, on 26/9/98 between 9:00-12:00 at night, PW1 Karmabai a widow woman was present in her house and was cleaning pots. Appellant came to her house and told that he will commit intercourse with her, on her refusal appellant tied her hands by rope and dragged her to his house, she shouted for help. Hemsagar came out from his , house, he saw the incident then he went inside his horae. Appellant took her into his house there he committed rape twicely and also confined her in his house anyhow she rescued from the house of appellant and came to her house on 29/9/98. She lodged First Information Report vide Ex. P-1. She was sent for fSSiyl i^: ^iK^i^^MN^fe^ ^'- C-, medical exaniination where she was examined by PW4 Dr. R.P. Patel and found abrasion over her buttock vide Ex. P-5. She was also examined by PW12 Dr. S. Ekka where he was found same injuries. On her internal examination, no visible injury was found vide Ex. P-11. Dhoti of t^g appellant was seized vide Ex. P-3. Accused was examined vide Ex. P-9. Sealed articles were sent for chemical examination. After recording the statements of the witnesses under Section 161 ofthe Code of Criminal Procedure,1973 (in short 'the Code?) and on completion of the investigation, charge sheet was filed against the accused/appellant in the Court ofJudicial Magistrate First Class, Sarangarh, who in turn committed the case to the Court of Sessions, Raigarh from where the learned Second Additional Sessions Judge, received the same on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 17 witnesses. Accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and claimed innocency and false implication in crime in question. He has also exaiTiined defence witness DW1 Bihari who has deposed in his evidence that appellant is a man of good character. — ^) \ 10. After providing, an opportunity of hearing to the counsel for the parties and perusing the evidence adduced by them learned Second Additional Sessions Judge has convicted and sentenced the accused/appellant as aforementioned. Learned counsel for the appellant Mr. Abhay Tiwari and learned G.A. for the State/respondent Mr. Arun Sao are heard and perused the material available on record including the judgment impugned. Learned counsel for the appellant vehemently argued that in the light of PW1 Karmabai, he has not disputing conviction and he wants to argue only on the question of sentence. Learned counsel for the appellant further argued that as per evidence of PW1 Karmabai, on the ground of marriage with the Karmabai, present appellant has committed intercourse with her after taking her in his house. Prosecutrbc is a woman aged about 40 years. As per version of villagers, they have seen the incident but have not objected. Present appellant was in custody since 29/9/1998 till 24/7/2006 for about 7 years and 10 months that shall be treated as sufficient sentence in the present case. On the ' other hand, learned counsel for the respondent/State opposed the appeal and submits that evidence of PW1 Karmabai is sufficient for drawing an inference that appellant has committed rape with her, 11. 12. he has assaulted to her and also confined her. Conviction of the appellant is based on legal, credible and clinching evidence. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. As regards the question of sentence is concerned, considering the circumstances of case age of the appellant on the date of offence and his present age the sentence period already undergone i.e. for about 7 years and 10 months would be sufficient sentence for under Section 376 of the Indian Penal Code. Consequently, criminal appeal is partly allowed. Conviction of the appellant under Sections 376, 342 & 323 of the Indian penal Code are hereby maintained instead of imprisonment for life under Section 376 of the Indian penal Code, appellant is convicted rigorous imprisonment for already undergone i.e. for about 7 years and more than 9 months but less than 10 months likewise his sentenced under Sections 323 & 342 of the Indian penal Code are hereby maintained, sentences are run concurrently as a result appellant is present in Court be released. <v Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge