/} /' .. ''<-<"- .< CF0000058260 ^!, .9 • <"•' s,N?? '""' JS. TOB HIOH CCTIRT , OF W3X3A KADSSH AT JABALPOK CRIMIH&L APPB&L N0, ^-r^-^ CT' 199$ RQhit Itaaar^ son of LaKhasilal ':^^ ; ^, Mehra^ aged 32 yeara^ latourer^ ^@Bid©nt-©f.-^illa^©Bija-Bhat^ - . . . • Poliee StafcioB Bemeiara^ Blatrict? Durg-ft . • <.«»APE@LL T v^sus The Stet©of MadtQ^a.Pradesh ,«^ESPCSffiCTT GRIIffM&LAPPS&.LUKEHlSECTIOS 31kiS) OF THB CODE CS GRIKIML mOGEIiURB A.fi^. HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. JusticePritinker Diwaker) Criminal Appeal No. 403 of 1995 APPELLANT Rohit Kumar VERSUS RESPONDENT State of Madhya Pradesh Post for pronouncement of the judgment on Pl.2.2011. Sd/- Pritinker Diwaker Judge -hFZ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 403 of 1995 APPELLANT RESPONDENT VERSUS Rohit Kumar State of Madhya Pradesh Dr. N.K. Shukla learnedSr. counsel with Shri Sudhir Verma forthe appellant. Shri Vivek Sharma PL for the respondent/State. CRIMINAL APPEAL UNDERSECTION 374 OF THECODE OF CRIMINAL PROCEDURE. JUDGMENT ( ^3.02.2011) This appeal is directed against the judgmentand order dated 24.2.1995 passed by theAdditional Sessions Judge Durg, Camp at Bemetara in Sessions Trial No. 87/1994 convicting the accused/appellant under Sectjon 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine ofRs. 500, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Case of the prosecution in brief is that on 7.10.1993 at about 7.30 p.m. FIR Ex. P-1 was lodged by the prosecutrix - a married lady aged about 28 years alleging that on that day at about 3 p.m. she was going to the field of Mansaram and when she reached near the filed of one Chunnilal, accused/appellant who was already sitting there, caught hold of her, threw her on the field, upturned her sari and petticoat and committed forcible sexual intercourse with her. After investigation challan was filed on 15.10.1993 for the offence under Section 376 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. ^ "^- This apart, four persons namely Basanti Bai (DW-1), Santram Yadav (DW-2), Ghasiram (DW-3) and Ramesh Kumar Kothari (DW-4) have also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Counsel for the appellant submits that presenbappears to be a case of false implication where on account of some previous dispute the accused/appellant has been roped in a falsecase. He submits that there are material contradictions and omissions in the statement ofthe prosecutrix (PW-1) and that bejng so the accused/appellant is entitled for acquittal. According to the counsel for the appellant, the story put forth by the prosecutrix appears to be highly improbable and that her statement has not been corroborated by her husband Ashwani Kumar (PW-3) and Mansharam (PW-4). He submits that the prosecutrix was allegedly raped by the accused/appellant in the field butshe has not sustained any injury on her body which makes the entire prosecution case wholly unreliable. He submits that even the medical report of the prosecutrix does not make it clear that she was subjected to rape. According to him, though the accused/appellant was medically examined on 8.10.1993 at 4.45 p.m. i.e. more than 25 hours of the incident yet as per his medical report Ex. P-3 smegma was present on his gland penis and on this count also the appellant is entitled for acquittal. 6. On the other handcounsel for the respondent/State supports the judgment impugned and submits that minor contradictions and omissions in the statements of the witnesses who happen to be rustic villagers are but natural and they have to be ignored when major portion thereof clearly makes out a case against the appellant under Section 376 IPC. He submits that conduct of the prosecutrix and her husband appears to be quite natural where the entire incident has been narrated by them in plain and unambiguous term. He submits that as the accused/appellant has raped the prosecutrix on a bund having thickly grown grass, question of injury on her body does not arise. Lastly he submits that as per FSL report Ex. P-10 presence of spermatozoa was confirmed in the vaginal slides and —3.—. the petticoat of the prosecutrix. He submits that as the medical examination of the accused/appellant was done after 24 hoursof the incident, presence of smegma on the gland penis loses its importance. 7. Prosecutrix (PW-1) has stated in her evidence that on the date ofincident at about 1 p.m. after feeding her child when she was going back to the field of Mansharam (PW-4) csirrying food for her husband and as soon as she reached near the field of Chunnilal, accused/appellant who was already sitting there, caught hold of her from behind as a result of which the food stuff being carried by her had fallen down. When this witness told the accused/appellant as to what would happen if the people working nearby happened to see, he said that be that as it may, at the most they would kill him. Thereafter, according to this witness, the accused/appellant threw her on the ground and committed forcible sexual intercourse with her. She has stated that though she had resisted the act of the accused/appellant by throwing her legs, she was overpowered by him. She then went tothe field of Mansharam weeping and narrated the incident to Ramkali, Sati Bai and Brijbai. She also narrated the incident to her husband when he returned from the nearby bore well after cleansing himself. Thereafter, she and her husband went to the village Kotwar and then the report was lodged. In paragraphS of her cross examination, this witness has clarified about certain omissions and stated that if something is missing in the FIR she cannot tell the reason for that. She has stated that first she narrated the entire incident to the women who were present there and after return of her husband from the nearby bore wellshe disclosed the same to him also. This witness has stated that the accused/appellant had complained to her husband that she was implicating himin a false case and when she herself asked him whether he had not committed the act alleged, he did not say anything and kept quiet. In paragraph 6 of her cross examination, this witness hasstated that there may be some confusion in the FIR and the case diary statement in respect of the words "field" and "thrashing field" but she clarified later that she narrated the incident to the villagers in the thrashing field and not in the field. She has further clarified that -<-t- immediately after reaching the thrashing field she had narrated the entire incident to the women labourers present there. This witness has further clarified that when she disclosed the incident to her husband, by that time he had not finished his meal. She has denied the fact that had the accused/appellant begged pardon, she would have just fined him and not resorted to lodging of the report. In paragraph 8 of her deposition she has further clarifi^d about certain omissions and contradictions in the FIR and the case diary statement. She has stated that the incident had taken place on a 3 ft. wide bund full of grass. According to her, though she had raised cry for help and offered resistance, on account of fear she fell asleep but it was not out of her free will. She has denied the fact that the appellant spoke to her with love. According to her when she had asked the appellant not to touch her saying that her husband was present nearby and he would not spare him, he said to her that he might lose his life but he would do thesame. In paragraphs 12 and 13 this witness has stated as to the manner in which she was subjected to rape by the accused/appellant and denied the fact that she was a consenting party to his act. This witness has also denied the fact that on account of some previous dispute between her and the wife of the accused/appellant over water she has implicated him in a false case. She has also denied that her husband had abused the wife of the accused/appellant. She has also denied all the suggestions put by the accused/appellant in respect of her character. Ramkali Bai (PW-2) and Sati Bai (PW-8) whom the prosecutrix is stated to have narrated the incident have not supported the case of the prosecution and have been declared hostile. Ashwani Kumar (PW-3) - the husband of the prosecutrix has stated in his evidence that on the date of incident he and his wife were working in the field of Mansharam (PW-4) and at about 2/2.30 p.m. his wife had gone home to feed her child and when she returned, initially she did not inform him anything but was talking to the women labourers present in the field and when he finished his meal, she informed him that the accused/appellant had committed forcible sexual intercourse with her. Then, according to this witness he and the prosecutrix went to the Kotwar and informed her entire T^ ^'^ -^~- incident and then the report was lodged. Mansharam (PW-4) in whose field the prosecutrix was working along with her husband has supported the statement of the prosecutrix and stated that when he and the husband of the prosecutrix had finished their meal, prosecutrix informed them about the act committed by the accused/appellant and then in the evening they left the field. He has clarified the entire incident in paragraph 3 of his cross examination T f^' and stated that if certain things are not writteri in the case diary statement, he cannot tell the reason for that. According to him, he and the husband of the prosecutrix had asked the accused/appellant to beg pardon but he did not agree to that. He has denied the suggestion in respect of dispute between the prosecutrix and wife of the accused/appellant. Dr. P.K. Bajpai (PW-5) who had medically examined the accused/appellant on 8.10.1993 at about 4.45 p.m. and given his report Ex. P-3 has stated that he was capable of performing sexual intercourse and smegma was present on his gland penis. Dr. (Smt.) Rajshri Deodhar who had medically examined the prosecutrix and given her report Ex. P-5 has not found any injury on her body. ASI S.P. Singh (PW-7) is the investigating officer who has supported the case of the prosecution. J.D. Manikpuri (PW-9) is the Patwari who had prepared the spot map Ex. P-12. Basanti Bai (DW-1) has stated that there was some dispute between the accused/appellant and the husband of the prosecutrix. Santram Yadav (DW-2) has also stated that there was some dispute between the wife of the accused/appellant, the prosecutrix and her husband. Ghasiram (DW-3) and Ramesh Kumar Kothari (DW-4) have also made almost similar statement as that of Santram Yadav (DW-2). 8. First of all this Court would like to thoughtfully turn over the evidence of the prosecutrix (PW-1). According to her, at about 3 p.m. on the date of incident she was going to the field of Mansharam and when she reached near the field of Chunnilal falling in between, accused/appellant who was hiding himself there beforehand appeared all of a sudden and made her the victim of his lust. The prosecutrix has stated that near the place of incident the accused/appellant did not have the field of his own nor did she -6. herself also. This goes to show that the accused/appellant was aware of the fact that the prosecutrix would pass thereby at a particular time and in his pursuit he was waiting for her by hiding himself in the field of Chunnilal. Her evidence furthershows that immediately after the incident, she went to the field of Mansharam and narrated the incident first to the women labourers already present there and then to her husband after he turr];Qd back from the nearby bore well. This witness has also stated that before lodging the report she along with her husband went to the village Kotwar where the accused/appellant was already present but he persistently denied the incident. According to this witness, while the accused/appellant had caught hold of her, she had referred to the persons present nearby and asked the accused/appellant not to touch her. This utterance on the part of the prosecutrix implies that she was very much perplexed and worried about her honour and dignity and by making a reference to the persons nearby she was trying to get rid of the accused/appellant. This version on her part does not lead to an inference of consent as tried to have been argued by the defence because had she been a consenting party, there was no reason for her to disclose the incident to her husband and the women labourers working in the field. As regards presence of smegma on the penis of the accused, it is a settled legal position that 24 hours after the commission of sexual intercourse examination of the same loses its importance. Admittedly, in this case the accused was examined about 26 hours after the incident and as such presence of smegma would not make any difference in the case of the prosecution. More over, nothing has been brought forth by the defence as to for what reason she would involve the accused/appellant in such a socially abominable offence which normally a woman of common prudence does not do. Statement of the prosecutrix gets full corroboration from her husband (PW-3) and Mansharam (PW-4). According to the case of the prosecution itself, the incident had taken place on a bund having thickly grown grass and therefore the absence of injury on her body does not have any adverse impact on the case of the prosecution. Even otherwise, it is a settled legal position that if the version of the prosecutrix itself rrp appears trustworthy, corroboration of the same from any other source is not a necessity. 9. In view of the aforesaid threadbare discussion of the facts of the case in the light of the evidence available on record, this Court does not find any flaw in the judgment under challenge. The Court below has taken into consideration every aspect of the matter in a ^^ right perspective and being so the findings recbrded by it hardly need any disturbance from this Court. Accordingly, the appeal being without substance is liable to be dismissed. It is dismissed as such. The accused/appellant is enjoying bail. His bail bonds stand cancelled. He be shifted to jail without any delay. Sd/- Pritinker Diwaker Judge