^-^^'••^'KK^S'ff—, 'w:,'SS^^^S&yK!;"'i~.:^fe'~3- ^'PB-5 APPEU-ANT: HIGH COURTOFCHHATTISGARH.BILASPUR CriminalADbealNo.795of2007 Prabhu Lal Banjara Versus RESPONDENT: State of Chhattisgarh rd Post^orDronouncemenfofiudamenton23r°Julv,2009 ' YSdA..;: ^P.Sliarma Judge -^ f! iriii-i 9- a*-i? iA^ APPEL.LANT: (InJail) HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal N6.795of2007 Prabhu La! Banjara, age 55 years, S/o Vishram Banjara, R/o Village Kouhakuda, P.S. Bagbahara, Distt. Matiasamund(C.G.) RESPONDENT: Versus State of Chhattisgarh, Through the P.S. BagbahaFa, Distt. Matiasamund (C.G.) , . :,' {Criminal appeal under SectiQn 374 (2) oftheCodedf Criminal Proc?dure, 1973} Present: • • • •• • ! vr''..-,,. • ^ ' ,' , Mr. Vivek Rathore, cc|jnsel for the appellant. Mr. Sushil Dub6y, Go\ . Advocate for theState/respondent. Sjnale Bench: Hon'ble Wlr. T.P. Sharma, J JUDGMENT (Delivered on 23rd July, 2009) 1. This appeal is djrected against the judgment of conviction & order of sentence dated 3-9-2007 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, Mahasamund in Special Sessions Trial No.32/2006 whereby & whereunder learned Special Judge after holding the appellant guilty for commission of offence under Sections 456 & 376 of the I.P.C., sentenced him to undergo R.l. for oneyear & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for three months and to yndergo R.l. for seven years & pay fine of Rs.3,000/-, in default of payment of fine to further uhdergo R.l. for six months, respectively. 2. Jydgmentof conviction & order of sentence are Challenged on the ground that without any iota of evidence, learned Special Judge has cQnvicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 5-7-20Q5 at Village Kouhakuda, Police Station Bagbahara, Distt. Mahasamund, the •"-prosecutrix (PW-3)wassleeping in her house after taking hermeals, at abQyt12.30 mid night the appellant entered her into the room 6f ttie is^afESisa-swags •}jnoo|Bp) 94^0 pjooaj sqi osje sB4U8Lu6pnf pauBndiy! 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Defence has adduced the defence evidence of Rajkumar (DW-1) & Jalap Singh (DW-2) who have deppsed that brotherof the prosecutrix has assaulted the accused and pn the ground of animosity the accused has been falsely implicated at fhe instance of the brotherQf the prosecutrix. 8. On the other hand, learned counsel for theState/respondent supported -the impugned judgment and arguedthat the prosecution has proved this case beyond all reasonable doubts. Defence of the accused isnot aeceptable because on the ground oftrivial disputeone would notfalsely implicate the accused on'the^erious charge of rape that too by taking the risk offate &future of|is sister. s.lnQrdertQappreciatettiecdntentionsofthe parties, 1 have examined the evidenceadduced on behalf ofthe parties. lo.Theprosecutrix(PW-3),agedabout 28 years, has deposed in her evidence that on the fateful night whenshe was sleeping in her room, the appellant entered into herroom and committed rape on her, and when she tried to cry for help, the accused put clothin her mouth. After commission of rapewhile the accused was escaping from the spot, he -was caught hold by her brother Silab whocame after hearing her sounds and thereafter, Gulal & Bedram also came. They beat the accused and narrated the incident to Kotwar, and she lodged the report on the same day vide Ex.P-2. She was examiged by the doctor, her petticoat was seizedandspot map was prepared. , 1l.Si|ab (PW-4), brother ofthe prosecutrix, has deposed that on the fateful night he was sleeping in his house, at that time, he heard the sounds of his sister saying ^r ^Fsr ^En-afr cTEiTgjt ^ siTqr t on which he went to the - roomofhis sister and caught holdof the accused, his sister narrated the incident to him whereupon he slapped the accused and narrated the incident to Kotwar & others. Report was lodged on the same day morning. 12. Ramadhin (PW-1) & Gulab Singh (PW-2) had deposed that on the fatefui nJglTtat-about 12.30 mid night after hearing the soundof'^tst'^sr sRirsft eT^sjt ^ 3TCT 11 put from their houses and Silab (PW-4) told i? 1«*1»^ them thatthe accused has entered into his house andcommitted rape on his sister. The prosecutrix has also narrated the incident to them. 13. Dr. Seemalata Binkar (PW-9) has deposed that on 10-11-2004 she has examined the prosecutrix and found that the prosecutrix is accustomed tosexual intercourse, two vaginal slides of the prosecutrix were taken and her petticoat was also examined. In her cross-examination, she has admitted that if a person commits rape on a woman injury may occur on private part ofwoinan. 14. Rajkumar (DW-1) & Jalap Singh (DW-2) have deposed that brother of the prosecutrix has quarrelled with the accused at the time of alleged incident. But in cross-ex^mination Rajkumar (DW-1) hasadmitted that if any incident took Rlace'%/hen he came to his house, hs cannotsay. Likewise, Jalap Singft (DW-2) has deposed that there is animosify between both the parties. The accused has taken specifiG defence of quarrel at the time of incident, but he has not stated the said fact in his examination under Section 313ofthe Cr.P.C. and had stated thatthe complainant party has demolished hishQuse afterquarrellingand his son has contested the elections ofJanpad. 15 Defence has cross-examined the prosecutrix (PW-3) at length. In para 10 of her cross-examination she has admitted that there wasno door to her room and the accused is the person who has Committed sexual intercourse with her. Defence has suggested toRamadhin (PW-1) in para 6 of his evidence that brother & father of the prosecutrix have consumed liquor and.assaulted theaccused. Gulab Singh (PW-2) has aiso admitted the presenee of accused at the time of alleged incident. The prosecutrix (PW-3) has specificatly deposed that the appellant was present at the time ofincident. Presenceof the appellant atthe time of commission of offence in the house of the prosecutrix is not disputed. Thealleged inciderit took place at about 12.30 mid night and presence of the proseeutrix inthe houseofthe prosecutrix has not beenexplained. This is not the case of Gonsent. Defence has not suggested anything to the prosecutrix relating to consent. Roomof the prosecutrixwas without dopr. In absence of any suggestion of consent, and specific statement of the prosecutrix that the accused has committed rape on her; it is difficult to liold that this is a case efconsent. •'fc. :*'t. l6.Factumof presence of the accused in the house of the prosecutrix is supported by the evidenceof Ramadhin (PW-1), Gulab Singh(PW-2) & Silab (PW-4), and the prosecutrix (PW-3) has deposed thatthe accused has committed rape on her. Evidence of the prosecutrix iscorroborated by independent sources an8 the promptly lodged F.1.R. The prosecutrix is a married lady.No extemal force has been used at the time of cpmmission of the offence^therefore.noinjury was possible. Evidence ofthe prosecutrix supported by the evidence of other witnesses inspires confidence. l7.AfteF appreciating the evidence available on record, the Coyrtbelow has convicted & sentenced tne appellant as aforementioned. Conviction of the appellant is based o^ retiable and clinching evidence sustainable under the law. The Cpurt below has not committed any illegality in convieting the appellant under Sections 456 & 376 of the I.P.C. for the offenee of rape & house breaking. 18.As regards the question ofsentence, the Court below has sentenced the accused/appellant to undergo R.l. for one year & pay fine of Rs.1,000/- under Section 4'56 of the I.P.C. and to undergo R.l. for seven years & pay fine of Rs.3,OQO/- under Section 376 of the I.P.C. Sentences imppsed ypon the appellant are neither excessive nor unjust and no interference is called for. is.Consequently, the appeal is liable to be dismissed and it is hereby dismissed. -• ___ ! ::: ^,:,,,Sd/-..:1,.., 'T.R^Slhal-En^® :Judge:'£'" yoma ^•SSS-SSf:. .K;.. HCiia-.i...——- :<-'" /. .