^ ^ ^w .tV^.'y^ ,?**t^^:^T'TT^&aP^ ?<P^TT"S ^TM^^yff ^ *n^rF^TF^C, ^t /?. ^^hf"-*T. tTT-T?TT ^ iff^ P^^.-T-^T^h HIGH COURT OF CHHAmSGAKK; BILASPUR SSfSGLS, BSI3CH: KOM'BLE SHM R. L. JHAHWAS, J. CrimEaal AEioeaI Ho.1494/199° APPEuLANT Vua-ans. SEUIU l^.^¥&r^'^?r^'s)l.^rTl aL?&'W,Li?£.fl''l S. State ofM.P, ;Ncw C.G.) T TT FS (T. Tiff W; W ^J'[ ^Z ^A lut~ ^ JL Post on ) (, Septeniber, 200' c ^/g/2GG§ $.f \ SINGLE BENCH: HON'BLE SHRI RAJISHWAR LAL JHANWAR. J. Vikram. Sahu, S/o Rekhram. Sahu, aged about 32 years, resident of vfllage Araeri, Thana Mandir Hasod Distnct Raiour fMP) Versus State of M.P. through Mahasaxaund District Magistrate, Shri R.P. Tripafhi, counsel for the appeUaiit. Shri U.K.S. Chaudel, Panel Laroyer for fhe State. Memorandum of Appeal under Sectioa 374 of Cr.P.C. JU D GM ENT (Delivered on )<:,) 9/2009) { 1. This crimiaal appeal is directed against fhe judginent of conviction and brder of sentence dated 20th May, 1999 passed by tlie leamed 2nd Additional Sessions Judge, Maliasaiiiuud ia. S.T. No. 284/1997, whereby fhe leamed Additional Sessions Judge has convicted the appeUant for comimssion of offence puiushable under Sectibns 376 (1) aad 450 ofthe IPC and senteneed him to undergo R.I. for7 years and to pay fine of Rs.5000/, ia default ofpayinent ofliue to undei^o additioaal S.l. for 1 year, aad R.I. for 2 years and fiue of Rs.1000/-, in default of payment of fine to furtherundergo additional S.I for6 nionths.respectively. 2, The prosecution story, iu brief, is that ttie appeUant is known to the faauly of fhe prosecutrix becaiise he used to visit the house of fhe prosecutrix for niedical treataient. On 26.4.1997, at about7:30 ain., when fhe husband of prosecuttix had gone to attend call of nature, at that tiine, fhe appeUaiit canie aad asked whereabouts of her husbaad Aaand Ram. At the relevant time, proseciftrix was preparing foodj. When the appeUant/accused cauie to know about ber husband and ajsb that shewas alone ia the house, he caught hold of the prosecutrix, gagged her m.0ufh aad took her iaside fhe bedroora and forcibly G0iiuiutted|sexual uitercourse with her aad thereafter ran. away. After coiainittHig;t^]!e |said act when he was coiiung out pf fhe house of prosecutrix, at tune, husband of prosecutrixwas retuiaiag back aud saw tBe &] away. He asked fh.e prosecutrix, who was also :fo|B0} appeltaiit oy weepiug. Prdsecutrix narTated the stoiy |to r:lit^sbaii|i. i 1 1 After that, her husband caught hold of the appeUaiit and beat Iiim.. In fhe meautime, Jeevaa, step-brother ofAuanad Ram (P.W.l) caaie fb.ere and tried to iutercept the uiatter. Thereater, the prosecutrix and her husband went to Police Station- Bagbahara and on 26.4.1997 at 9:45 am, PIR was lodged. Case was registered uader Sectiou 376 (1) aad 450 ofIPC agaiust the appeUant. Prosecutrix was inedicatly examined. Seizures were made, Statements under Sectiou 161 Cr.P.C were recorded and after coinpletion ofinvestigation,charge sheetwas filed in the Court ofJudicial Magistrate First Class, Mahasamund, who in due course committed fhe case to fhe Court of Sessions, Raipur. The learaed Sessions Judge made over the case to the leamed 2nd Additional Sessions Judge, Mahasaiaimd for trial. 3. Leamed Additional Sessions Judge feamed charge under Sections 376 (1) and 450 ofthe IPC against fhe appeUant,read over and explained it to fhe appeUaut, who abjured the guflt aad pleaded fhat he has been falsely itnpticated iu tiie case. 4. The learued Additional Sessions Judge after evaluatmg fhe evidence available on record, aud hearuig ftie couiisel for respective parties, found appeUaat gmlty uader Section 376 (1) and 450 of ttie IPC aad convicted aad seatenced fhe appeBaat, as above. 5. I have heard learued counsel for both fhe parties at lengtli aad perused the record of fhe trial Court. Leamed counsel for the appeUant after aiguiag fh.e matter at length placed reUauce on AIR 2003 Supreme Court 2136 (Sudhwisu Sekhar Sahoo Vs. State ofOrrisa). 2004 CRI. L.J. 1726 (Jogi Dan and others Vs. S(a(e of Rajasfhan) aud 2003 (4) Crimes 10 (Jagdish Vs. State of 7. On fb.e ofher haud, leamed counsel for the State opposed. 8. The leanied trial Court relyiag on fhe evidence of the prosecutrix,i her husbaad and also on FIR has convicted and seatenced fhe appellan.f as mentioned iu paragraph 1 (supro^. j 9. It is evident froin the stateiiient ofprosecutrix Kunti Bai (P.W.2) fhaf sfae kuew the appeUaut. AtAe time ofincident, when her husbaad was nbt in the house aad she was alone aad was prepariag food, appeQaat camie aad . asked about her husbaad. Knowittg that her husband is not ia. the Kquse, accused caught Iier hands, took her inside fhe bedrooin aad knocked t.e e^ ^tL -c. y. (3) down ber on the bed. When she tried to raise hue and cry, the appeBaat gagged her inoufh aad forcibly coitunitted sexual iutercourse agaiust her wiil. Tbereafter, he went outside the room. She also came outside the room by weeping. At fhis juncture, her husbaad came fhere and saw her wife weeping. He uiquired jroin her, whereupon slie told bita about the uicident. He also saw the appeUant runiung away towards couTfarard aiid he caught hold of the appeUaat and slapped him. Thereafter, fhe prosecutrix along with her husband went to lodge the report Ex.P.2. The prosecutrix was medically examiaed aud her clofhes were seized. Accordiag to her stateinent, it is clear that at the tiiue ofiacident she was alone M her house. 10. Aaaud Ram. (P.W.l), husbaad of prosecutrix alsd corroborated her version. He had gone to attend fhe call of nature. Afber fhat when he reached to his house, he saw his wtfe weeping aad be enquired from her, fhen she narrated the nicident At that time, he saw fh.at appeUaat was runrting away from his house. He imxiiediately caught hold of fhe appeBaiit aiid slapped tuni. Thereafter, Iie, along witti his wife went to poUce station -Bagbahara and lodged PIR, Ex.P-2 prompUy. In his cross- examiuation, he has adinitted thathe assaulted the accused, so fhe accused also lodged the report and a case was registered under Section 325 offhe IPC aad fhe matter was setfled by compromise. 11. Dr. Asha Mishra (P.W.9) examiued the prosecutrix on 26.4.1997. Accordiag to her report, Ex. P-8, she did not fiiid presence ofany recenti signs of sexual iatercourse with tier. She prepared vaginal slides. As pen report of FSL, human spermatozoa and semen were found on petticoat df the prosecutrix and also on ftie underwear of fhe acGUsed. The inedieal evideace of Dr. Asha Mislira was of no use because prosecutrix| is a luarried lady. i' ; [^ ; 12, FIR, Ex.P-2 waa proved by the pro^ectitrix as also by K.S. Nagar (P.^.13) investigation officer. Seizurc of ga?aband aad petticoat, Ex.P-3 (P-4), jwei^ proved by Lajlaram (P.W.3), K.S. Nagar (P.W.13) aud prosecutnx. Iti^also evident froin the evidence of fhe prosecutrix that the appeUant tooltjher iitside fhe room and there he forcibly committed sexual nitercoursejjvFifh her. : 13. So far asno iBJuiy found on the body of prosecutrix is GprtceHled, lt.is evident froia the evideuce of the prosecutrix fhat she was kiioc]sBcl|down! 16 .«- y^ ^ ^. :id:! ^ •-'•/".;'\'"t^. •-^ ;v I •^ i i].: £m3ia on the bed by the appenaat fhen no question ofiajuiy anses. She was weepiug afber cominitting sexual intercourse by tlie appellaiit. At fhe same tune her husbaad came. She inimediately narrated the uicident. She was weeping which shows fhat she was not a consentiag party. If she would have been a consenting party, she woiild have told to Uer husband tfaat doctor had corue to treat her as she was not feeling weU. It is not iu dispute fhat fhe accused used to visit her house for niedical ta-eatment of her faauly members. She told fhe iacident which actuaBy occurred. This also shcws fhat she was not a consenting party. Accused was also caught hold by her liusband iiainediately after the incident; it proves fhat fhe accused was on fhe spot. 14. TIie case law cited by leamed counsel for fhe appeUant does not help the appeUaat because tiiose cases are distinguishable. 15. In the case at haad, prosecutrix 1s not only a reliable witaess but her evidence is also corroboi'a.ted by her husbaad and FIR, Ex. P-2 wtuch was proinptiy lodged by fhe prosecutrix aud her husbaad a&d also supported by K,S. Nagar (P.W.13), Investigating Office. Her evidence is supported by FSL report in which presence of seiiiinal steias aud huinan. sperm.atozoa on her undergaaaents and underwear of appeU.ao.t were found. 16. From. fhe aforesaid discussion aud taking into coasideration fhat nofhia^ has been brought to disbelieve fhe version of fhe prosecutrix substaiitially aad OBL fh.e ofher haud, fhe evidence of the prosecutrix was also supported froni atl coraers, I am. of the opirdou fh.at ftie leamed tnal Court has not committed auy error ia holdiiig fb.e appeUant giulty for coinmittmg fh.e offence punishable under Section 376 (1) and 450 of the IPC and sentenced awarded fhereunder. 17. In the result, the appeal fails and is accbrdiugly dismissed. Conviction.! and sentence passed by fhe trial Court are maiatamed. l• - ^ \ Sd/- R.L. Jhanwar Judge I 'i ! ) •Y