wgw€$w§kQNwmw% In the Eigh Court of Madhya Pra dash at Jabalgur, agi. Appeal No.33i2—or’ 1996. Augpguant :a Mukesh E‘ged about 25 yearg , sun in baa of Shri Badri PM sa/d/Kvoushik,” R/o Pon dikhurrai’Cha kerbhata r‘ Bila sp Urn '.''... i"v v rSu§o Respondent u Anpeal under $ection 37L? of the Code of Criminal Procedweg The Siwte of Moi”. § Mukesh HIGH COURT OF CHHATTISGARH AT BLASPU IR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 342 of 1996 APPELLANT VERSUS RESPONDENT State of Madhya Pradesh Shri FLS. Khare counsel for the appeHant. Shri Pankaj Shrivastava PL for' respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. J U D G M E N T (10.082010) i This appeal is directed against the judgment and order dated ' 15.2.1996 passed by Additional Sessions Judge, Biiaspur, in Sessions Trial No. 79/1995 convicting the accused/.appeilant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500, in default of payment of fine to further, undergo rigorous imprisonment for five months. 2. Case of the prosecution in brief is that on 18.4.1994 FIR Ex. P-11I was lodged by the prosecutrix, a married lady aged about 32 years at the relevant time, to the effect that on the previOus night in between 12 and 12.30 when she had come out of her house to answer the call of the nature, accused/appellant came there, caught holdof her hands, started dragging her in a bid to commit sexual intercourse with her and when she tried to run away in order to get out of his clutches, he again caught hold of her and committed forcible sexual intercourse with her. When she tried to raise cries, he inserted a piece of cloth in her mouth. lt is alleged that ' after commission of the offence she went to her house and informed the incident to her sister—in—law (Devrani), brother—in—law (Devar) and other family members. ‘ 3. So as to hold the accused/appellant guilty, the prosecution has ’ examined as many as 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code ‘ r‘ of > Criminal Procedure in which — he if denied the charge levelled against ‘ him]; I and pleaded his innocence and false implication in the case. This apart support of its case. t sentenced the accused/appellant as mentioned above. 4. Afer hearing the parties the trial Court has convicted and 5. Heard counsel for the parties-and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appeilant submits that prima facie it is a: l ‘ case of consent otherwise it would not have been possible for the acCused/appellant to commit sexual intercourse with the prosecutrix in the mid-night because he was not aware that the prosecutrix would come ut of her house in the midnight and he would get an opportunity to have ex with her. He submits that though it appears to be a case of consent for some reason or the other, the accused/appellant has been falsely implicated in the case. He submits that even the medical report does not, support the case of the prosecution as no external or internal injury was noticed by the doctor who had medically examined the prosecutrix. 7. On the other hand counsel for the respondent/State supports the?“ judgment impugned and submits that as the report of the incident was lodged by the prosecutrix very promptly and the witnesses namely Pardeshi and Bahra Bai (PW-3 and PW—11 respectively) to whom the prosecutrix narrated the entire incident, have also supported the case of the prosecution, the findings recorded by the Court below are just and proper. He submits that medical report of the prosecutrix (Ex. P-4) very i i much makes it clear that she had suffered external injury on her forehead. Hesubmits that there is absolutely no evidence available ortj , record to show that the prosecutrix was a consenting party as the recorded under Section 313 of the Code of Criminal Procedure. 8. Prosecutrix (PW—‘8), a married lady aged about 32 years has stated in her evidence that the accused/appellant being the resident of the same w "it? lit Mat ' accused/appellant has not stated anything to this effect in his statement l o s ’3' Village Is known to her Accordmg to thls Witness on the date of InCldent m the night hours when she had come out of her house to answer the call of nature accused/appellant came there caught hold of her hands and on the cnes belng rarsed by her he first gagged her mouth by hand an then Inserted a plece of cloth thereln Thereafter according to the prosecutrlx the accused/appellant took her to some dlstance by dragging and when she trled to run out of hls clutches he agarn caught hold of her and after taklng her towards the street made her lle on the ground and committed forcrble sexual Intercourse wrth her Accordlng to this wrtness after commissmn of the offence, she returned home and narrated the incident to her sister-in law (Devrani) brother-In law (Devar) Trlakram and one other person Thereafter Trlak Ram and Pardeshl went In search of the accused/appellant but he was not traced Subsequently, after consultation wrth the elderly people of the Vlllage the matter was reported to the police ln cross examlnatlon the prosecutrlx has not stated anythlng new and remained stuck to what has been stated by her ln the examlnatron m chief The prosecutrlx has denied the suggestion put to her by the defence In respect of the dlspute between the members of the two famllles and also that as she was seen by the accused/appellant in. the compromising posrtlon wrth one Trlak Ram to save herself she has Implicated hlm In a false case Though there appear to be some minor contradictions In the statement of the prosecutrlx In respect of the timing of lodgment of the FIR, considering her entire statement the same is rendered insignificant Pardeshi (PW 3) — the brother-in law of th prosecutrlx to whom she had narrated the entire InCIdent Immediately ‘ has supported the case of the prosecution stating that when he was sleeping In his house at about 12 3O In the night prosecutrlx had Informed him and other family members about the manner In which she V was subjected to rape by the accused/appellant. ln cross examination also, this witness remained firm to his statement made in the examination:in-chief. Alakhram (PW—10) — the husband of the prosecutrik nd Bahra Bai (PW-11) have also supported the case of the prosecution I stating that they were Informed by the prosecutrIX as to In what manner she was raVIshed by the accused/appellant Dr (Smt ) Samdarlya (PW 4) who medically examined the prosecutrlx has stated that she had noticed e a _(4 _ she was ravished by the accused/appellant. Dr. (Smt.) Samdariya (PW-4) who medically examined the prosecutrix has stated that she had noticed one scratch mark on her forehead in the size of 10 x 1/4 c.m. This witnese‘ has opined that the prosecutrix being a married lady no definite opinion regarding rape could be given. Nem Prasad Tandon (PW-1) is the Patwari who had prepared the spot map. Devi Das (PW-2) has also‘ supported the case of the prosecution stating that the prosecutrix had informed him about the rape having been committed on her by the accused/appellant. Dr. V.D. Sonwani (PW-5) who medically examined the l accused/appellant has stated in his report Ex. P—6 that he was capable of g l having sex. T.S. Bisen (PW-9) — the investigating officer has alsd‘ supported the case of the prosecution. Though an attempt has been made by the defence witness Samaylal (DW—1) that there was some relation with the prosecutrix and her brother-in—law and as the accused/appellant had seen them in an objectionable condition, a false. report has been lodged against him, without there being any other‘ evidence available on record to this effect, this Court is not inclined to act upon that. 1 0. Thus the aforesaid discussion of the factual aspect of the matteri does not lead this Court to disbelieve the testimony of the prosecutrix which has been duly supported by other witnesses also. ln this view of ‘ the matter, the findings of conviction recorded by the Court below appear to be just and proper and do not warrant any interference in this appealt Appeal being without substance is hereby dismissed. Appellant is reported to be on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out the remaining part ofthe sentence. 9AA Pritinker Diwaker Judge 3 gl Ii l j. l i l i e 'mmrawavm‘ 4‘