HIGH COURT OF CHHATTISGARH, BILASPUR Criminai ABpeaLNo^.936^of 1992 APPELLANT: Babulal Versus RESPONDENT: The State of M.P. (now C.G.) th Post fouironQuncementofjudflmentQn 25"'Jyne, 20^10 Sd/- T.P. Sharma Judge • gs!3% % Sl APPELLANT: (In Jail) HIGM COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.936of1992 Babulal, S/o Ram Prasad Kewat, aged 30 years, Occupation Cultivation, R/o Gundardehi, Distt. Durg (M.P.) (now C.G.) RESPONDENT: Versus The State of M.P. (now C.G.) through Police Station Gundardehi, Distt. Durg (M.P.)(nowC.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Neeraj Pradhan, counsel for the appellant. Mr. U.K. Singh Chandel, Panel Lawyerforthe State/respondent. Single Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (25th June, 2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-8-92 passed by the 4th Additional Sessions Judge, Durg in Sessions Trial No.189/91, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of rape, convicted him under Section 376 (1) of the I.P.C. and sentenced to undergo R.l. for seven years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l.forsixmonths. 2. Conviction is impugned on the ground that without any clinching and credible evjdence the tria1 Court has convicted & sentenced the appellant ' and thereby^ommitted illegality. 3. Case of the prosecution, in brief, is thaton 2-7-90 at about 9.30 p.m. the 'prosecytrix (PW-1) (name not mentioned)Was sleeping in her house along with her children, her husband had gone to river for fishing, the appellant entered inthe house ofthe prosecutrix and committed sexual infercourse with-her, at that time, the prosecutrix has not objected the l,,,,*.«!":f: te '-) appellant on the ground that her husband is committing sexual intercourse with her. After completion of sexual intercourse, when the appellant tried to leave the house of the prosecutrix, the proseGufrix noticed the fact that her husband has not committed sexual intercourse with her and the appellant herein has committed sexual intercourse with her. The appellant has kept his cycle in front of the house of the prosecutrix. The prosecutrix shouted that the appellant has committed rapewith her. The appellant fled away from the spot. The prosecutrix narrated the incident to neighbours. She went to the Police Station and lodged F.I.R. without half an hour vide Ex.P-12. She was sent for medical examination vide Ex.P-13 and she was examined by Dr. Chaya Tiwari (PW-15) vide Ex.P-16. Vaginal slides of the prosecutrix were prepared and sent for chemical examination. During the course of investigation, cycle and underwear stained with sperm were seized from the accused vide Ex.P-1. Spot map was prepared vide Ex.P-5. Rent register of cycle was seized vide Ex.P-6. Copy of the entry is Ex.P-7 which shows that the app^llant herein has taken one cycle from the cycle f shop. The accused was also sent for examination and he was examined by Dr. P.K. Agrawal (PW-11) vide Ex.P-8. The appellant was found competent to commit sexual intercourse. Smegma was not present over the glans penis. Patwari also prepared spot map vide Ex.P-9. One lamp was seized from the prosecutrix vide Ex.P-10. Her petticoat was seized vide Ex.P-11i Slides of vaginal smear of the prosecutrix were seized •• / vide Ex.P-12. Seized articles were sent for chemical examination and •**• presence of sperm was confirmed on vaginal slides of the prosecutrix, petticoat of the prosecutrix and underwear of the accused/appellant vide Ex.P-15. Statements of the witnesses were recorded under Section 161 ;-oftheCr.P.C.. After completion of investigation, charge sheet was filed lyi;<""t:Nk Siil'[,,ii,tfc. 1 '"^ Vl •<-. ....^ ll!<, »l..._ before the Court of Judicial Magistrate First Class, Durg, who in turn, committed the case to the Court of Sessions, Durg, from wherelearned Additional Sessions Judge received the case on transfer for trial. 4. In order to prove the guilt of the appellant, the prosecution has examined as many as fifteen witnesses. The accused was examined under Section 313 of the Cr.P.C, in which he denied the circumstances appearing against him and pleaded innocence & false implication. The appellant has taken specific defence that on the ground of previous enmity on account of fishing, he has been falsely implicated in the crime in question. The appellant has examined defence witness Santuram (DW-1) who has deposed that the appellant was Secretary of Jai Bharat Matsya Palan Cooperative Society, the appellant has caught the husband of the prosecutrix red handed while he was stealing fish from the pond and he took the husband of the prosecutrix to the Police Station, but the police has not registered F.I.R.. Husband of the prosecutrix has also paid penalty of Rs.100/-. 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 6. I have heard learned counsel for the parties, perused the judgment and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that conviction of . - the appellant ii solely based on the evidence of the prosecutrix (PW-1) whk:h does not inspire confidence. Her evidence is full of contradictions, omissions and exaggerations. Her evidence is not natural. As per her evidence, the appellant has committed rape with her in presence of her children which is not possible, even otherwise, the prosecution has not -ixE; . ?-'-'°*&«:;, w 'i'|^;^^'''"^l' J^ ^ s i.» "y' '•^,.,. '' " examined those children tocorroborate the evidence of the prosecutrix. The appellant has been falsely implicated on account of enmity. 8. On the other hand, learned State counsel vehemently opposed the appeal and submitted that the appellant has committed rape with the prosecutrix at about 9.30 p,m. while she was sleeping in her house with her small children. The prosecutrix has promptly lodged report within half an hour. As per the chemical examination report, sperm was found on the undergarment ofthe accused and vaginal slides ofthe prosecutrix which is suggestive of the fact that sexual intercourse has been committed on the prosecutrix before herexamination. 9. In order to appreciate the arguments advanced on behalf of the parties, 1 have examined the evidence adduced on behalfofthe parties. 10.As per the evidence of the prosecutrix (PW-1), at about 10 a.m. when she was sleeping in her house along with her children, the appellant came inside her house and after pressing her neck, he committed sexual,. intercoyrse with her and while the appellant was leaving the house of the prosecutrix, the prosecutrix shouted on which her elder brother-in-law Rajaram came, thereafter, other' persons Sukhram, Guddu, Bhagela& Khorbahra also came. She has lodged the report vide Ex.P-1 . 11. Rajaram (PW-2) has substantially corroborated the evidence of the proSecutrix relating to presence of the appellant in the house of the prosecutrix at^bout 10 p.m.. Johar (PW-6) - husband ofthe prosecutrix, has deposed that on the date^f incident he was not present in his house and was .sleeping in the house of Balla, his wife told him that the appellant has committed rape with her andshe has lodged the report immediately. Haggar (PW-7) - father-in-law of the prosecutrix has also , cprroborated the evidence ofthe prosecutrix. T?T wm•;"iBiB SsWii '-ss'^./ • \ 12.1n the present case, Dr. Chaya Tiwari (PW-15) has examined the prosecutrix vide Ex.P-16, on 3-7-90. She has taken the slides of vaginal smear of the prosecutrix and also examined her petticoat. Dr. P.K. Agrawal (PW-11) has examined the appellant on 3-7-90 at about 12 nooh vide Ex.P-8. He has reported that smegma was missingover the glans penis of the appellant and has also noticed some stainson his undergarment. Stained undergarment of the aceused, SIides of vaginal smear of the prosecutrix and her pettic.oat were examined by the F.S.L. videEx. P-15and presence of sperm was confirmed over the aforesaid articles which are suggestive of the fact that the prosecutrix was subjected to sexual intercourse and sperm.was also found on the undergarmentof the accused/appellant. 13.Defence has cross-examined the prosecutrix in detail. Defence has also taken the defence that on the ground of enmity on account of fish theft, the appeltant has been falsely implicated. Defence has examined defence witness Santuram (DW-1) in support of its defence. Santuram (DW-1) has deposed that husband ofthe prosecutrix has challenged the accused/appellantthathewill lodged report against all the persons. This shows that the prosecutrix and herfamily were in inimical terms with the appellant. 14.1n the detailed cross-examination of the prosecutrix, the appellant has suggested to herin para 4 of her cross-examination that on the date of ' 'incident, th&appellant, one Balla & husband of the prosecutrix consumed liqubr in the house of the prosecutrix till 7 p.m. Defence has also syggested to the prosecutrix that on account of excess consumption of liquor the appellant slept in the house of the prosecutrix. In para 5 of her cross-examination she has explained that the door of her house was ndt in*~gQOd conditio.n and opening ofthe doorwas possiblewith the help ofa Hii. rope. In para 6 she has admitted that at the time of incident the lamp was burning. In paras 7 & 8 of her cross-examination she has specifically deposed that the appellant is the person who has committed rape with her. 15.0n the one hand, the appell'ant has taken defence that on account of previous enmity the prosecufrix has falsely lodged report against him, but on the other hand, the appellant has admitted his presence at night in the house of the prosecutrix. Husband of the prosecutrix Johar (PW-6) has specifically deposed that at the time of commission of offence he was not present in the house. As per the chemical examination report, the prosecutrix was subjected to sexual intercourse. Sperm was found on the undergarment of the appellant and smegma was missing over the glans penis which alone is not the proof of commission of sexual intercourse, but is suggestive of the fact that the accused has either committed sexual intercourse or has washed his male organ to remove the smegma. The accused has not offered any explanation regarding missing of smegma over his glans penis and presence of sperm on his undergarment on the second.day of the incident. Evidence of the prosecutrix (PW-1) is sufficient for drawing inference that the appellant is the person who has committed sexual intercourse with the prosecutrix v^ithout her will and consent. 16.After appreciating the evidence available on record, learned Additional / Sessions Judge has convicted the appellant under Section 376 (1) ofthe •I.P.C. and sentenced him in the aforesaid mahner. Conviction & sentences ofthe appellant are based on credible, clinching and legal evidence sustainable under the law. ?»*—«-.;'. ,/' '- i ] 1 r-. Nl',:^! "••'-' I- pmy 1 7 ss ' .^ ^ <..,nS!i' ts ;'*.-::"^ Soma 7 17.For the foregoing reasons, l do not find any illegality in the judgment impugned warranting any interference. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. The appellant is on bail. He shall surrender immediately before the Court of 4 Additional Sessions Judge, Durg/successor-in-office for serving the remaining sentence imposed upon him in Sessions Trial No. 189/91 Sd/- T.P. Sharma Judge ^ f-1