^ -^y-^ ^^-- .18 lle^ w »•' A-^::,.^ 3 ^....•••- ' ^<^^ ..•••"" &*'-"" ^ _ ;!' Single Bencb IN THE HIGH COURT OF CHHATTISGARH JUDICATURE AT \ BILASPUR CRIMINAL APPEAL N0. -<>-c> ^> /2006 fo- ^ APPELLANT Clv, •S'v.t') RESPONDENT Ashwini Raatre, S7o Mohan Raatre, Aged 19Years, R/oVillage Kewiara, P.S. Kharora, Distt. Raipur ( C.G.) t .^VERSUS :-State of Chhattisgarh Through Police Station Kharora, District Raipur ( C.G.) CRIMINAL APPEAL UNDERSECTION 374 OF THE CODE OF CRIMINAL PROCEDURE . 1973 .< .^!-;;;ii^?u^.; .toJi.y.i^L.UaiS; llll!ll':!l ^ \ HIGHCOURT OFCHHATTISGARH AT BiLASPUR (Hon'ble IVir. Justice Pritinker Diwaker) _ Criminal Appeal No. 553 of 2006 -.'-s APPELLANT .Ashwini Raatre son of Mohan Raatre VERSUS - RESPONDENT State of Chhattisgarh Post for pronouncement of the judgment dated -2C /10/2009. Sd/- Pritinker Diwaker <?tNg- ^' s i1'</':-:"^;-—L.-.-' A-^^ ^' \ \ HtGH COURT OF CHHATriSGARH AT BILASPUR (Hon,.!Vlr. Justice Pritinker Diwaker) Criminal AppealNo. 553 of2006 APPELLANT ' Ashwini Raatre son of Mohan Raatre. RESPONDENT VERSUS li' M State of Chhattisgarh. .§ Shri J.R. Verma counsel for the appellant. Shri G.D. Waswani GA for the respondents/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (?6.10.2009) The appellant in this appeal is challenging the iegality, validity and propriety of the judgment dated 17.7.2CX)6 passed by the Additional Sessions Judge, (FTC), Raipur in Sessions Triat No. 196/2006 convicting the accused/appellant under Sections 363 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 200, and rigorous imprisonment for seven years with Tine of Rs. 300 respectively, with default stipulations. 2. Brief facts of the case unfolded by the prosecution are that on 19.3.2006 at about 2.30 p.m. prosecutrix (PW-12) \was taken by the appellant from Imlibhata to village Tarashiv, Tilda, Bhatapara and ultimateiy to Itwari (Nag^ur). Missing report Ex. P-12 was lodged on 21.3.2006 by Ganesh Ram (gW-13), the father of the prosecutrix. Further case of the prosecutron is that on 27.3.2006 the prosecutrix was brought back to hervillage by her brother in faw and other retatives and thereafteron 29.3.2006 her statement was recorded by the police in which she stated that at Nagpur the appeltant and she herseif stayed for two nights where appellant subjected her to rape On the basisof thisstat^nent ofthe prosecutrix, the Station House OfRcer of poltee station, Kharoraregistered the offences punishable under sections 3^3, 36'6,376 and 506 ofthe Indian PenaL£ode, £vssss^9ys~ ^ iS'S -2.- \ againstthe appellant, vide FIR Ex. P-20. Thereafter, on 29.3.2006 she was sent for medical examination to Community Heaith Centre, Tiida where Dr. Mlna Samuel (PW-17) examined her and vide medical report Ex. P-22 she opined that hymen of the prosecutrix was ruptured,two fingers easiiy entered her vagina, and as the prosecutrix was habitual tp sexual intercourse, no definite opinion regarding instanf sexual irifSrcourse could be given. 3. So as to prove the guilt of the accused, prosecution has examined as' many as 17 witnesses. Statement of the accused/appeliant wasalso recorded undersection313 oftheCode Criminal Procedure in which he denied the charges tevetled against him and pleaded his innocence and false implication in the case. , 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this Judgment and acquitted him of the offences punishable under sections 366 and 506 ofthe Indian Penal Code. Hence this appeal. 5. Counsel for the appellantsubmits that the trial Court has landed itself in the legal error while convicting and sentencing the accused/appellant for the offences punishable under sections 363 and 376 IPC for the reason that the prosecutrix has not stated in her evidence that she was subjected to rape by the appetlantand that the penetration.which is a sme qua non to establish the commission of rape, took place. He fi)rther submits that unless penetration is estabiished, conviction under segtion 376 IPCcannot be warranted and itcan be safely presumedtB'at the prosecutrix was not subjected to rape. According to him the prosecutrix has merely stated that the appellant had done "Galat Kaam" with her whereas in her police statement recorded under Section 161 of the Code of Criminal Procedure she has stated that appellant committed rape on her. He submits that the prosecutrix has ,not disclosed anything to her mother, father,grand father or any other relatives about the .commission of rape by the appellant. She had also not disclosed "31:!:, -3- \ B about her having been subjected to rape by the accused/appellant, to Manga! Chand (PW-14) who had brought her back from Nagpur. According to him, the prosecutrix for the first time had disclosed the incident of rape in fhe Court only and therefore her statement regarding commission of rape cannot be said to be credible and trustworthy. He further st^mits that the prosecutrix had sufficient & • . .. opportunity to raise an aNtrm white she was being taken to Nagpur and other places butsurprisingly she kept mum and did not even report the matter to the poiice and thus solely on the basis of statementof the prosecutrix the appellantcannot be convicted under section 376 ofthe Indian Penal Code. As regards the offence under section 363 of thelndian Penal Code, counsel for the appellant submits that the mother and father ofthe prosecutrix have notstated anything in their statement that the prosecutrix was taken away forcefully without their consent and therefore, the appellant cannot be convicted under section.363 of the Indian Penal Code also. He further submits that whenon the same set of evidence the appellant has been acqulttedof the offences punishable under sections 366 and 506 of the Indian Penal Code he cannot be convicted undersections 363 and 376 of the Indian Penal Code without there being any other reliable and ciinching evidence in that regard. According to him when the statement of the prosecutrix is not supported by any other evidence, minute scrutiny of her evidence is required in the case. He subnrtits that in this case merely on the basis of statement 6f the prosecutrix the appellant deserves to be acqyitted. He submits that Dr. Mina Samuel (PW-17)who has medipally examined the prosecutrix has aiso not supported the case of the prosecution as she has categorically stated that the prosecutrix has not suffered any internal or externai injury. He also submits that the report of the chemical anaiyzer also does not support the case of the prosecution. In support of his submissiori counsel for theappellant places reliance on the judgments of the Supreme Court in the matter of Aman Kumar and anothervs. State of Harvana reoorted in (2004) 4 SCC llt' % . 'l ii ll III.! l^l- •II -4- \ 379 sind in the matter of Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand) reDorted in (2006) 8 SCC 560 and submits that in both these cases it has been heid by the Apex Coyrt that penetration of maie organ into private part of victim/prosecutrix is a must to bring the offence under sectiori376 IPC into play. Accordingto him, in the present case, the pei|etration has not been established by the prosecution and therefol-e the appellant cannot be convicted under section 376 of the indian Penal Code. Counsel for the appellant has filed an affidavit of the father of the appellant to the effect that as after marriage the prosecutrix is leading a happy married life, liberai view may be taken and his sentence may be reduced to the period already undergone. In support of his submission he has relied upon a judgment of theSupreme Court in the matter of State of Punjab vs. Rakesh Kumar reported in (2008) 12 SCC 33. !n the case cited by him, the accused and the prosecutrix were in love with each other which ultimately culminated into the sexuai intercourse. 6. Repudiating the arguments advanced by the counse! for the appeilant, counsel appearing for the respondent/State supporting the impugned judgment of the triai Court submits that the prosecutrix has categorically stated in her evidence, reievant portion of which reads as under: "'llliy,-i 4' SIRWl' ^ 4^ •ElTai rCc!Q W RiW 1 uRWi^ "HcIcT ^>R few i ai<|ifl ^ 41 vf% 'ggit siN ^ w airar ^t ufftr q?t 'AcfTOT 44 'TcRT W V-T^ ^ SKtft Vf tFV ^ aft ^W^ «[Rift q? ^€fW ! 3IRMt ^ WR ^ST t i" It has been submitted by the counsel for the State that from this statement of the prpsecutrix it is'clear that she was subjected to rape by the appeltant. It is argued^hat the prosecutrix is not required to give the details as to the manner inwhich she was subjected to rape and no other meaning of the words used in her statement can be derived in sex-related offences. He submitsthat when the factum of the prosecutrix being minor on the date of incident remains undisputed, theory of consgnt becomes immaterial. Hesubmits that merely non-raising of aiarm by the prosecutrix after haying been ^Tdnapped does not make the appellant entitled for acquitta! li..l;"';ki. ^i^-f?' \ because so many reasons such as threat etc. are there which could have not permitted her to open her mouth against the appellant. According to him, in her statement the prosecutrix has categorically stated that appelfant subjected her to sexual exploitation by putting her under threat of life. Lastly he submits that in the absence of injury on the body of.the proseeutrix as has been opined by the i,. ' doctor who examineEls'the prosecutrix, the appellant cannot claim acquittai. - 7. Heard counsel for the parties and perused the material available on record including the judgment of the trial Court. 8. Admittedly, at the time of commission of the offence i.e. in between 19.3.2006and 27.3.2006 the prosecutrix was a minor gir! as according to her school record (Ex. P-9) which is duly proved by Murlidhar Verma, Head Master (PW-8) her date of birth is 9.9.1990. The contention of the counsel for the appeliant that in the absence o£- the detailed narration of the incident of rape, the appellant cannot be convicted under section 376 iPC, is not acceptable to this court for the reason that she has categorically stated in her evidence that "st Nagpur accused did bad work with me. Foivsbly did bad work. ! Accused removed my clofhes and came to me, spread my thighs, 1 refusedtiim to do bad work but in spite of this he dtd not conceded to my request. Accused had mounted on me". Thus the prosecutrix has categoricaily stated the act of the accused/appellant in detail and therefore, the judgments cited by himare distinguishable on facts. The words "Galat Kaam" used by the prosecutrjx in her evid'ence cannot be construei^'otherwise in the sex-related offences. The aforesaid decisions of the Supreme Court relied upon by the counsel for the appellant are of no help to the accused/appellantin the present case because in those cases the point involved was whether penetration was done or not and whether the offence alleged in that case wpuld fall under section 376/511 IPC, But, in the present case, th& prosecutrixhas categorically stated that she was subjected to physical relationshlp by the appellant and no further w 1^ -6- \ details regarding the manner in which the offence of rape was committed, are required from the prosecutrix. The other argument that the statement of the prosecutrb< is not supported by any other evidence is not acceptable to this court because it is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplic^,.after the crime. There is no rule oflawthat s, her testimony cannot be^cted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In this case, the prosecutrix has givena vivid account ofthe entire episode as to how the accused sexually assaulted her and unless there are compelling reasons necessitating corroboration of the statement of the prosecutrix, her testimony alone is sufficient to convict an accused under section 376 of the Indian Penal Code. Moreover, nothing has been elicited by the defence as to why the appellant has been falsely impllcated in this case and thus the stand of false implication taken by the accused/appellant is aiso not worth acceptance. The other contention that the medical report of the prosecutrix does not support the caseofthe prosecution is also not acceptable to this Court because the prosecutrix was forcibjy removed Jrorn her lawful guardlanship on 19.3.2006 and remained under the clutches of the accused/appellant till 27.3.2006 and she was medically examined only on 29.3.2006 and if no injury has been found on her body after such a long intervai, it will not give any benefit to the accused/appellant. The leniency sought for in the sentence because of the fact that the prosecutrix is already married to some other man and fe teading a happy married life, cannot change the course of justice an^-the decision cited by the counsel for the appellant is absolutely c^tinct on facts as in the decision of the Supreme Court taken support of by the appeliant, the sexual intercourse was the culminating effect of love affairs existing between the accused and the prosecutrix. Unfortunately such is not thecaseherein. 9. 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