,if^:^. ~~^ r i. ..s^\ i i t;yi i %.. ^VA HIGH COURTOF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon'ble Shri T.P^Sharnia & Hon'bleShri R.N. Chandrakar, JJ, \ Criminal Appeal No.466 of 2009 Appellant (in jail) Vs. Respondent. Kirtan Saganvanshi, s/o. Mangal Singh Sagarwanshi (Udia), aged about 20 years, r/o. Sikola Basti, Ward No.16, P.S. Mohan Nagar, District Durg (CG). State of Chhattisgarh through Station House Officer, Mohan Nazgar, Durg, District Durg (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. R.M. Solapurkar, counsel for the appellant. Mr. D.K. Gwalare, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Deliveredon 27-7-2011) Per T.P. Sharma, J. 1. Challenge in this appeal is to thejudgment of conviction and order of sentence dated 12-5-2009 passed by XI Additional Sessions Judge (FTC) Durg in Sessions Trial No. 198 of 2007, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of house trespass, causing injunes and committing rape with prosecutrix, convicted the appellant under Sections 376, 327 (1) and 450 of IPC and sentenced him to undergo Rl for 14 years and fine of Rs. 25,000/-, in default of payment offine to undergo further Rl for 3 years, Rl for 5 years and fine of Rs.1000/-, in default of payment offine to undergo further Rl for six months, Rl for 5 years and fine of Rs.1000/-, in default of payment of fine to undergo further Rl for six months respectively. All the sentences are directed to run concurrently. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, on 7-6-2006 at about 10.00 a.m., prosecutrix - PW/1 (name not mentioned) aged about 18 years was present in her house alone, at that time, appellant came to her house and tried to close the doors to which she objected, then the appellant holding sickle caused injuries over neck, head, thigh, arm and leg of the prosecutrix and thereafter committed rape with her. After commission of rape she shouted for help upon which her father came there to whom she demanded water and told to save her. Persons of the vicinity gathered in the house of prosecutrix and her parents took her to Govemment Hospital, Durg, at that time she was not fully conscious and thereafter when she regained conscious, she narrated the incident to her mother and sister-in- law. On 7-6-2007 at 11.30 a.m. Dharamdas (PW/3), father of the prosecutrix took his daughter to Police Station, Mohan Nagar and lodged first information repori: vide Ex.P/3 in which he has informed the Police that present appellant had caused myltiple serious injuries to prosecutrix in her house. On 8-6-2007 prosecution had examined mother andsister-in-law of prosecutrix. On 7-6-2007 prosecutrix was examined by Doctor R.K. Naik (PW/11) vide Ex.P/11 who found the injuries; i) incised wound 2x1x.5cm over right cheek, ii) incised wound about % x % x % cm over left side of the neck; iii) incised wound 1 x .5 x.5 cm over right fore-arm; iv) multiple incised wounds 2 x.5x.3, .5x..5x.3cm, .5x.3x.3cm, .5x.2x.2cm over right thigh; v) multiple incised wound .5x.5x.2cm, .5x.3x.3cm, .5x.3x.3 cm, 1x.3x.3 cm over left thigh; vi) abrasion of2 cm over right thigh; vii) abrasion of 1x.5x.5cm over right hand and viii) abrasion of 2 cm over right leg and opined that injuries No. 1 to 5 might be caused by sharp object. 5. On 8-6-2007 blood and sperm stained underwear of prosecutrix was seized vide Ex.P/4 from father of the prosecutrix (PW/3). Prosecutrix was again sent for examination to Government Hospital, Durg, vide Ex.14 and she was examined by Doctor Jayashri Gopinath (PW/13) vide Ex.P/7 who found the symptoms of injuries i) sexual characters well developed, ii) vagina easily admits 2 fingers, iii) hymen was ruptured , iv) redness present over vagina and opined that she was habitual to sexual intercourse and no definite opinion about recent intercourse was possible. Slides from vagina were prepared, sealed and handed over to constable. Underwear ofaccused was seized from the possession of appellant vide Ex.P/5 and sealed slide of prosecutrix was seized vide Ex.P/8 y 8. 9. 10. 11 On 9-6-2007 accused/appellant was taken into custody and was examined by Doctor A.K. Mishra (PW/7) vide Ex.P/9 who opined that the appellanfaccused was capable to perform sexual intercourse and smegma present over gland. Sealed articles were sent for chemical examination to the FSL and presence of human sperm on the underwears of appellant and prosecutrix and slides of prosecutrix were confirmed vide Ex.P/29. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned Sessions Judge, received the case on transfer, who framed charge under Sections 450 327, 376 of the Indian Penal Code against the appellant who abjured the guilt. In order to prove the guilt of the appellant, prosecution examined as many as thirteen witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against them and pleaded innocence and false implication. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial court. Mr. R.M. Solapurkar, learned counsel appearing for the appellant vehemently argued that as per evidence of prosecutrix appellant 12. came to her house, assaulted her by sickle and thereafter when she became unconscious, he committed rape with her. During her unconsciousness it was not possible for her to know that who had committed the crime and what crime had been committed upon her body. Father of prosecutrix Dharamdas (PW/3) lodged first information report at Police Station vide Ex.P/3 on 7-6-2007, but factum of rape has not been mentioned in FIR which shows that after lodging FIR, the prosecutrix exaggerated her statement for falsely implicating the appellant with ulterior motive, which does not inspire confidence and appears untrustworthy. Learned counsel further submits that as per medical evidence, prosecutrix was accustomed to sexual intercourse and no definite opinion regarding recent intercourse was given which also supports the defence of the appellant. He further submits that the evidence of PW/1 prosecutrix is not corroborated from independent source and same does not inspire confidence. On the other hand, Mr. D.K. Gwalre, learned Deputy Govt. Advocate appearing on behalf of the State opposed the appeal and submitted that as per evidence of PW/1 prosecutrix and her statement recorded under Section 161 ofthe Cr.P.C., as Ex.P/22, at the time of commission of rape, she was not fully unconscious, she shouted for help upon which her father came there to whom she requested to save her. Her father immediately took her to hospital and thereafter FIR was lodged at Police Station and when she regained consciousness then she immediately narrated the incident to her mother and sister-in-law. On 9-6-2007 she was [o^ 13. 14. 15. examined by Doctor Jayashri Gopinath (PW/13) who opined that no definite opinion could be given regarding recent intercourse but medical examination report (Ex.P/7) corroborates the evidence of prosecutrix. He further submits that appellant has committed rape with prosecutrix after committing house trespass and causing injuries to prosecutrix and the court below has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. In the present case, the fact that number of number of multiple injuries found over the body of prosecutrix caused by some sharp edged weapon has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor R.K. Naik (PW/11) and injury report(Ex.P/11). As regards complicity of the appellant in the crime in question, conviction is substantially based on the evidence of PW/1 Prosecutrix. As per her evidence, appellant who is a resident of same vicinity came to her house on 7-6-2007 at about 10.00 a.m. when she was alone in her house. Appellant was holding sickle, he tried to close the doors which she objected then the appellant caused injuries by sickle over her neck and thigh. Thereafter, when she became unconscious, appellant committed rape with her and fled from the spot. When she regained conscious at that time she was badly stained with blood, she shouted for help upon which her parents came there with whom she narrated the incident, / thereafter, her parents took her to Police Station and hospital where she was examined. 16. As per evidence of Doctor R.K. Naik (PW/11), on 7-6-2007 at 12.30 p.m., he examined prosecutrix vide Ex.P/11 and noticed huge number of injuries; incised wounds and abrasions over cheek, neck, hand and thigh of the prosecutrix. As per evidence of PW/3 Dharamdas, father of prosecutrix, he had lodged first information report (Ex.P/3) stating that at the time of incident his daughter was unconscious, when she regained conscious she narrated the incident and thereafter she was admitted in hospital. On 9-6-2007 she was again examined by Doctor Jayashri Gopinath (PW/13) vide Ex.P/7 who opined that hymen was ruptured, redness present over vagina, vagina easily admits two fingers and there was no symptoms about recent intercourse and she was accustomed to intercourse. Although Doctor Jayashri Gopinath (PW/13) has deposed that prosecutrix has accustomed to intercourse, but her medical examination report (Ex.P/7) clearly reveals that hymen was ruptured, redness present over vagina admitting two fingers which is sufficient for corroborating the evidence of rape/intercourse with prosecutrix. Defence has cross-examined PW/1 prosecutrix at length in whieh she has categorically deposed that present appellant caused injuries to her and has committed offence. She has denied the suggestion that she was having love affair with appellant and she lodged FIR underthe pressure of her parents. The evidence of prosecutrix (PW/1) is well corroborated by the evidence of Doctor R.K. Naik (PW/11), Doctor Jayashri Gopinath (PW/13), FSL report (Ex.P/29) and parents of prosecutrix to whomshe had immediately narrated the incident. The aforesaid evidence appears to be trustworthy and inspires confidence. 17. After appreciating the evidence available on record, learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. At the time of commission of offence, the age of appellant was 20 years and the age of prosecutrix was 18 years. This is not a brutal case of rape. Considering the circumstances under which the offence was committed, while maintaining conviction, sentence requires consideration. The trial Court while awarding the sentence, has not considered all the aspects of the matter. 18. Consequently, the appeal is partly allowed. Conviction of the appellant under Sections 376, 327(1) and 450 of the IPC is hereby maintained but instead of Rl for 14 years and fine of Rs. 25,000/-, Rl for five years and fine of Rs.1000/-, under Section Rl for 5 years and fine of Rs.1000/-, appellant is hereby sentenced to undergo Rl for ten years and fine of Rs.1000/- under Section 376 of the IPC, Rl for three years and fine of Rs.1000/- under Section 327(1) of IPC, and Rl for three years and fine of Rs.1000/- under Section 450 of IPC, in default of payment of fine to undergo furt:her Rl for six months. All the sentences are directed to run concurrently. Sd/- P-Sharnia Judge Sd/- R.N. CHANDRAKAR. Judge ^Raju