3 ‘ Singk $¢a¢h N THE HON BLE HIGH COURT OF CHHATrISGARH AT BILASPUR * Cr A No Qéo /2008 (s B) 'RaJu Yadav S/o. Jagtu Ram. Yadav, aged, about : 37 years, R/o’. 'vmage : Kharhtakal, .P.s. Arang, District : Raipur (C.G.’ APPELLANT : (IN JAIL) 9 I VERSUS 'State 9 of} Chhattusgarh Through : Pollce Station IArarig, Distt. . Raipur (C.G.). V, 0’ CRIMINAL APPEAL UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE 1973 I % QW u' ) HIGH COURT OF CHHATTISGARH A‘!‘ BILABPUR CRA. v N0. 26 2008 0! Raju Yadav VerSuS APPELLAN'rs State of Chhattisgarh RESPONDENT Shn H B Agmwal Sr Ccunsel w1th Shn Vmeet Kumar Pandey, counsel for the apyellant x“ APPEAL UNDER SECTION 37gj2) OF THE mP.C. Shn Pravecn Das, Dy G A for the State JUDGMENT (23.03.2011’ 3 The pwsent appeal anses out of the judgment & order dated 30.66.2007 passed by the 14th Addmonal Sessmns Judge, (FTC) Sessmn Tnal No 7012007 conmcung the oEence punishable under $ecuons 376 8t. 450 of the Ind1an Penal Code and sentencmg hnn to undergo ngorous mpnsonmcnt for tcn years With 0116 of Rs '500 1n default ofpayment of Me to further undergo ngomus mpnsomncnt for three m Raipu‘r in accused/appellant for the ntho and to undergo RI for five years W101 iine of Rs 500 1n default of hm to further undergo RI for three months, respeétively. 2. Bnef facts of the case axe that on the basis of written report (mole A) dated 7 9 06 FIR (Ex P18) was xeglstered on that day 1tself agamst the accused/appellant under Secnou 3'76 of the IPC to the eh‘ect that on 5 9 06 at about 12 OD noon when the prosecutnx (mentally challenged) was alone m her house, accused/appellant . nd after thmwmg her on the ground commtted rape on her mid thereafter when her father came from the workplace, she narrated . came there, ued her hands, gagged her mouth w1th a yiece of cloth a V the enhre me1dent to mm Who 1n turn mformed the Vlllage Sarpanch vmagers and as the matter could not be resolved as well as the other , in the village meeting, the mport camc to be lodged. Thereafter, the pmse'cuu'ix was medically examined by Dr. Aishwarya Netam (PAM—6) ' on 9.9;06 vide EXP/4 and after investigation, chHHan was %d on 30.12.06 under Section 376 of the IPC. However, on 20.3.07 learned trial Judge has framed charges under Secn'ons 3'76 &. 450 ofthe IPC. 3. So as to hold the accused] appellant guilty, the prosecution’has examined nine witnesses. Statement of the accused/aypellant was also recorded under Section 313 of the Cr.P;C. in Whicli he denied the charges levelled against him and pleadedhis innocence and false implican'on in the case. 4.. After hearing counsel for the parties, the trial Court has convicted and sentenced the accused/appellant for the onence as mentioned above. Hence this appeal. 5. It has been argued by Shri Agrawal and Shri .Pandey that present appears to be a case of false implication because a piece of t land was purchased by the accused/appellant mom father of the prosecutrix who was demanding some additional amount for the same on account'of hike in the price and as the said amount was not given, report was lodged. It has also been argued that earliex also in a similar case, the prosecuu‘ix has implicated two other persons namely Hemant Lodhi 8r. Ram Bharose and though she entezed into a compromise with them at later stage. According to the counsel for the appellant even the medical report is'not very conclusive on the basis of which the accused] appellant could not be convicted under Sections 376 an 450 of the IPC. Further, it has been argued that the accused/appellant is not physically capable of performing sexual intercourse on account of impotency due to some surgery performed in is stomach. 6. On the other hand, supporting the impugned judgment it has been argued by Shri Das that a mentally challenged girl has been subjected to rape by the accused/appellant by taking due advantage of her-helpless condition and therefore no leniency be shown to him and his conviction be upheld. it has been further argued that the: medical report of the prosecun'ix is positive‘and the i111urv on her h hat, she being mentally chanenged used to remain in the house and . could not speak pmperly though communicate the things. She has tated that on the date of incidsnt when she and her husband returned mm work place the pmsecuh‘ix had informed them as to in What manner she was subjected to rape by the accused} appellant In cross'examjnation, she has admitted the fact that fast she along with her husband went to the Salpanch and as the dispute could not be resclved by him, the FIR was lodged. She admits that earlier the report was lodged by the prosecmrix regaxding rape against two other persons namely Hemant Lodhi and Ram Bharose but she has denied the fact of demami of money by her husband §‘om the accused/appellant for the land sold to him. g‘, Heeralal (P.W.-2), the villager has stated that the pmsecuu‘ix is a mentallyrchallenged g‘rl and that he was informed by her kmer about the act of the accused] appellant. According to him, even on enquiry by some viilagers including the Salpanch, she nmrated the entire incident to them. Fekulal (P.W.-3), the Samanch of the village tvhile supporting the prosecution case has categorically stated that he was informed by the $ther of the prosecutrix about the entire incident and then he personally enquired the matter from the prosecutrix; He has further stated that themafter the report was lodged becauee in such cases the panchayat ’could not take any decision. Punit Ram (PAM—5) father of the pmsecutrix has also supported the prosecution case and stated that when he retuncd to his house along with his wife, the prosecutrix was found weeping and on account of fear she could not tell anything to him but she narrated the entile incident to his wife as to in what manner she was subjected to rape by the accused/appellant. This witness has also admitted the fact that earlier also the mport was lodged against two other lemons namely Hemsnt Lodhi 8r, Ram Bhérose by the prosecuh-ix regarding commission of mpe on her but he has clarified that the said report was lodged at the behest of the villagers. He has s further admltted the fact that wntten report (Amcle A) was prepared .by the $arpanch BabuJal (PAM-7) is the police constable who took the prosccutrix for medical cxaminah’on. He is the Witness of seizure of slide (Ex.P/2). D.R.Verma (P.W.-8) anested the accused/appellant vidc EXP/7. Mukti 'I‘irkey (P.W.-9) is the Investigating omcer. .8. ~ Minute examination of the evidence thus makes it clear that on 5.9.06 when the prosecutrix - a mentally challenged girl was alone in her house, the accused/appellant came there and taking the advantage of her helplessness committed rape on her and when she tried to come out of his clutchee, he gagged her mouth by inserting a piece of cloth, Statement of the prosecutrix has been duly supported by Dr. Aishwarya Netam (P.W.—6) who noticed injuries on the pn'vate pan of the prosecutrix.’ Statement of the pmsecutrix has also been duly supported by her mother (P.W.-1),. villager Heera lal (P.W.~2), Fekulal (Sarpanch) (P.W.-3) and her father Punit Ram (P.W.-5). The very fact that earlier also some report was lodged by the pmseeutrix against Hemant Lodhi & Ram Bhamse will not absolve the accused/appellant hum the present c' e especially when the N statement of the prosecutrix has been duly supnprted by medical: \ evidence. Thus it can be held that the statement of the pmsecuhix inspires full contidence of this Court and there is no reason to discard the same. The defence taken by the accused/appellant is not substantiated by any legally'admissible evidence and being so the only conclusion which can be drawn by this Court is that the prosecutrix was subjected to rape by the accused/appellant. . 9. Accotdingb’, the hndings recorded by the Court below convicting the accusedlappellant under Section 376 IPC are just and proper and no interfemnce with the same is called for. Thus the appeal being without substance is liable to be dismissed and the same is hereby’dismissed. Judgment impugned is left undisturbed. Sdl— Pritinker Diwaker