^ APPLICANT INJAIL HIGH COURT OF CHHATTISGARH AT BILASPUR Crfaaiaal Appeal No. 918/2005 Jameshwar, S/o Jogi Ram Gond, aged about 30 years- R/o Village- Ghotha, Thana Bhanupratppur, Distt. U.B. Kanker (C.G.) RESPONDENT VBRSUS State of Chhattisgarh, througl^ P.S. Bhanupratappur, Distt. U.B. Kanker (C.G.) ORAL ORDBR 17. 03. 2008 DHIRBNDRA MISHRA. J. Shri Saaieer Singh, counsel for theapplicant, Shri SushU Dubey, Govt, Advocate for fhe Stete, Heard. This criminal appeal is directed agauast fhe judgnient of conviction and oider of sentence dated 1st December 2005 passed ia Sessions Trial No. 111/05, whereby the learaed Additional Sessions Jiidge (FTC), Kanker, District-Kaiiker has convicted fhe appellant uuder Section 376 of the I,P.C. and sentenced him to undergo RJ, for 7 years and fme of Rs.500/- and m default of payment offine, to undergo additional R,I. for 6 months. 2. Case of fhe prosecution, MDL brief, is that on 25.1,2005 at about 10-11 ia the raomuig, the prosecutrix had gone to viUage Kulharkaftta and Mohgaon m connection wifh celebration of Cherchera Festival for dancing, At about 7:00 p.in,, at Schoolpara ofViUage- Ghota wheii ftiey reached near fhe house of Bajju aud called hiai, fhe appeUant came out aad aUeged that tiiey did not vote for his father and started abusing fhe prosecutrix aad ofhers by usiag filfhy language. The prosecutnx and othei^ boys and girls left for their respective houses, whereupon the appeUaat came behmd her and caught her bofh haads wifh evil desire near a secluded place and comniitted lupe with her, When Satrughan (P.W,-2) came near fhe spot, fhe appellaat slapped her two to tiirce times and asked him to run away, The prosecutrix naiTated about ftie incident to her parents aad elder father aad ultimately fhe report was lodged on 26th Januaiy 2005 at about 6:15 ia fhe evennig, 3. During iavestigation, fhe prosecutrix was sent for medical exaaiination to Community Healfh Centre, Bhanupratappur where Dr. Sunita Goti (P,W-14) examiaed her aaid gave her report of Ex,P- 12, The appeUaiit was also seiit for medical examination aiid ^, Dr. Prakash Patil (P.W.-17) examiaed huii and gave his report of Ex. P-26. The Superintendent of Police seat vaginal slides, wearing apparels of flie prosecutrix, wearing apparels aad semen slides of flie appeUant to fhe Forensic Science Laboratory, Raipur for examination vide Ex,P-22 aad ftie report of fhe Forensic Science Laboratory is Ex, P-25. 4, After completing iavestigation, charge sheet was fUed ui fhe Court of Judicial Magistrate First Class, Bhanupratappur who m tuni conunitted the case to the Court ofSessions Judge, Jagdalpur aad the same was received for tdal ou transfer by leamed Additional Sessions Judge. 5. Durmg trial, the prosecutibu exammed 17 witnesses in all aiid thereafter stateinent of accused was recorded m which he denied the evidence appeaiiag against him m fhe prosecution case aad pleaded mnocence and false impUcation on accouxit of factional rivahy, He also exaaiuie.d Shyaaibai ia his defence. 6, The trial Court after hearing learaed counsel for fhe respective parties, convicted aad sentenced fhe appeUant as mentioned above, 7, Conviction of fhe appeUaat is based on fhe statements of the prosecutrix (P.W. 1), Shatmghan (P.W.2), Manno (P.W.-3), Jainuram (P.W.-4), Ku. Dhanno(P.W.-7), Ku. Parvati (P.W-8), Jagdish (P.W.10) and Ku. Mohantin(P.W.-ll). 8. Leamed couusel for the appeUaiit submits fhat fhere are material contradictions aiid omissions in fhe statement of the prosecutriix, Therc is evidence available on record fhat there was election related factionaUsin ia the village. The appeUaat belongs to opposite party, and therefore, tiie prosecutnx aiid other witaesses who belong to ftie party which is opposed to fhe appeUant, have falsely iaiplicated the appellaiit m fhe above oflTence, RefeiTmg to paragaraph 17, 21 & 26 offhe depositioii offhe prosecutrix, itwas argued tih.at fhe conduct of fhe prosecutrix is highly uniiatural as she did not raise alarm even after fhe appeUant allegedly caiiie after her and tried to catch her aad she did aot make any attenipt to resist tiie attempt, There is material discrcpaacy about fhe time of report as the prosecutrix claims fhat the report was lodged at 10:00 iri the niorEiiiig and not at 6:00 p,m. as shown in the first mformatioa report aad she has also stated fhat her statemeat was uot recorded by fhe police after the report was registered, The prosecutrix has also adimtted fhat father of ftie appeUant belongs to oae party whereas father of fhe prosecutnx and ofher witaesses belong to fhe other party. It is further argued that in the medical rcport, no iajuries have been fouad over fhe person of fhe prosecutrix. 9, On the ofher haad, leanied Govt, Advocate for fhe State has supported the iaipugned judgment, 10, I have heard leamed counsel for the parties. I have penised fhe impugned judgment as also flie record of the trial Court. The prosecutorix in her deposition has stated fhat fhey had gone to the viUage offhe appeUacit for celebratmg Cherchera. While fbiey were retuming to their viUage, fhe appeUaat came after her and started abusiag them, He was exhortmg others to beat them ond robbed fheir honour. She was holding paddy sack over her head, at that juucture, fhe appeUant caught her. When she said that she is like his sister, he left her, After sonie distance, near Govt. Nursery, he caught her, fhrew her on fhe ground and committed rape with her, She cried for help. When Shatrughan came Uiere, fhe appellaat slapped him aud fhereafter she retanied home and narrated fhe incident to her elder fafher Jangluraxn aad faftier Maagauraai, On fhe next day, she lodged fhe report vide Ex.P-1. 11, In fhe cross-examiaation, she has stated fh.at fhe incident occun-ed at about 7:00 ia fhe eveniag, Because of the qiiarrel near Bajju^s house, she aiid her compaaions togefher proceeded for tiietr homes, She was accompanied by Ku, Dharmo, MohaEitm and Maano Bai. She has adniitted fhat when fhe appeUaat was abusmg her, she did not ciy for help, However, when he caught her, she abused hiai, When he tried to catch her first tiine, she did not raise alarm, She has stuck to her claim iii paragraph-19 tiiat fhe appeUaat caught her hand aad ffarew her on fhe grozind, however, she did not receive aay injuiy, Shatrughan was at a distance of30- 35 steps, In paiagraph 21 & 22, she has admitted the suggestion of fhe defence that at fhe time of coraHiission of rape, she did not attempt to defead her aad shouted for help only afler the act was over, s^- 12. P.W.2-Satnighaa, whose name also finds place in fhie first iBformatiou report, has coiToborated the versiou of fhe prosecutribc regardiag fhe incideut, He further stated fhat the appeUant caught fhe prosecutrix near Govt, Nurseiy, Wheu he heard the cries of flie prosecutrix for help, he went to place of iacident aad protested, however, fhe appeUant slapped aad abused hiai aad the prosecutrix iaformed hioi fhat he has raped her. In fhe cross- exaniination of this witaess, fh-e defence has not been able to elicit aaything which makes his version unreUable or untrustworthy, 13. P.W.3- Kii. Mamio, P.W.4- Jaiauram, P.W.-7- Ku. Dharmo, P.W,-8-Ku. Parwati, P.W,ll-MohaD^tia had accompaiued fhe prosecutdx when she had gone to the viUage of Uie appeUant m connection wifh Cherchera Festival and aU of titiexa were returamg togefher oue after fhe ofher to fheir viUage. AU fhtese wituesses have deposed about fhe iacident and have con'oborated fhe stateinent of fhe prosecutrix fhat she was ravished by the appellant near Govt, Nursery, The version of the proseciitdx is farther coiToborated from the statement of Biraju Bai (P.W,-5) mother of ttie proseciitrix, Mangauram (P,W,6), father of the prosecutdx aad Jangluram (P.W,-9) who are witaesses of the fact fhat after flie uicident, the proseciitrix told tiiem fhat the appeUant had raped her. 14, Dr, Sunita Goti (P.W,-14), who has exammed the prosecutrix, has observed fbat fhe age of fhe prosecutrix appears to be about 16 years, Her secondaiy sexual characters were developed, hymen was absent, therc was no mjuxy on her piivate part, her vaguia adniitted one finger wifh paiii, In paragraph 6, she has stated that flie paia aad sweUiag which she had referred ia her report could be caused because of infection or because of menstruatiou, The version of ftie prosecutrix further finds corroboration from fhe F.S.L. report, accordiag to which huiaan sperm was found ia tlie vaguial swab, wearing apparels of fhe proseciitrix aad the appeUant as also fhe seinen sUdes of fhe appeUant. 15. The argument of leanied counsel for fh.e appeUaat that the prosecutrix did not make aay attempt to resist fhe attempt of the appeUaat is indicative of her beiag a consenting party, cannot be ^" ^^^' ..^^^ ^yi^\ 'l. ^ ^J"/ y "^SSS!^ Sinha ?) accepted m view of the statement of prosecutnx as also fhe stetement of oflier witnesses who saw fhe appeUant azid fhe prosecutrix together aud who tried to mtervene. It is not a case fliat fhe prosecutrix is a grownup lady or she is habitual to sexual uitercourse as from fhe niedico legal exaainiation report of the proseciitrix, it would be evident fhat she is a girl oftender age, her vagiaa admitted one fmger wifb pain, sweUiag was prcsent ia her vagma, The version of fhe prosecutrix is further con'oborated froni fhe first iuformation report ui which naaie of the appeUant as also fhe witnesses who were present in fhe vicmity have been mentioned aad all of them have corroborated fhe statement of prosecutrix, Therefore, in the considered opinion of fhis Court, the trivial inifirmities poiated out by counsel for fhe appeUant rcgardmg time of lodgmg fhe report are not sufi&cient to discard the veraion of the proseciitrix which otherwise mspires confidence of this Court. 16. In flie result, the appeal bemg devoid of siibstaace deserves to be dismissed aad is accordmgly hereby dismissed, Sd/- OhirendraMishra Judge