<5inqie Bsnch (rrim:-!3i IB -IHB EIffi GOUEa' OE' JQaiSASOBS s A2 JABAtPUa. GBIMIBAL APP£AL 80 .l^^*/2000. Awsdfaraa alias'Bega son of SadhraQ -y- Se'tnaai, aged 26 years, Kesideat o VU-l&ge Baner^.to, Poli.ee Statioa ^" Jaijaipur, Q.istriot jgnjgir chass^a (M.P.). Vs. S* Stgte of Hslfaya pradesh ^ fr »» S3SSMi- £M&^S&^^JS&-S^iSl OB' ZHS OOQiE SS QBIMIHAI. pB&Gti^UBB^ _4PPM,lj4B'I (is JAIL) .XLCiSS^L-L^a -^ 7^7^1fL-H 'i'^'h^d-L •^•^ -,.'" i '^] ^•t w"(:l/ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1082/2000 APPELLANT Awadhram alias Bega Versus RESPONDENT State of Madhya Pradesh Shri Abhay Tiwari and Shri Yogeshwar Sharma counsel for the appellant. Shri Pravin Das Dy. GA for the State. CRIMINAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (19.04.2011) This appeal is directed against the judgment and order dated 15.4.2000 passed by Additional Sessions Judge, Sakti District Bilaspur in Sessions Trial No. 403/1999 convicting the accused/appellant for the offences punishable under Sections 450 and 376 IPC and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 2000/- u/s 450 and rigorous imprisonment for seven years with fine of Rs. 3000/- u/s 376 IPC plus default stipulations. 2. Facts of the case in brief are that on 27.2.1999 FIR (Ex. P-1) was lodged by prosecutrix (PW-1) - a married lady aged about 22 years at the relevant time alleging that on 24.2.1999 when she was in her house along with her husband, at about 8 p.m. the appellant came there in a drunken state and asked her husband to get some snacks from the nearby shop. It is alleged that when her husband had gone to get the snacks, taking advantage of her loneliness, the accused/appellant caught hold of her hand, threw her on the floor and after upturning her sari and petticoat committed forcible sexual intercourse with her. It is further alleged that as the appellant had tied her mouth with his towel, she could not raise alarm and that after committing rape, the accused/appellant removed the towel from her mouth and fled away. Thereafter, on her breath becoming normal, she raised the screams on hearing which Firtinbai and Dhanbai reached there and she narrated the incident to them. After completion of 2.- investigation challan was filed by the police for the said offence on 16.11.1999. 3. So as to hold the accused/appellant guilty, prosecution has examined 24 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Tulsidas (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that present is a case of false implication of the accused/appellant as he had fought Panchayat election against Tilak Ram (PW-4) who is related to the prosecutrix and her family members. He submits that there are material contradictions in the Court statement of the prosecutrix if compared to the FIR and her case diary statement and in these circumstances the appellant is entitled for acquittal. He further submits that there is an inordinate delay of two days in lodging the FIR which has not been satisfactorily explained by the prosecution. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the delay of two days in lodging the FIR has been properiy explained by the prosecution that as the Panchayat elections were going on and the police might be engaged in the same, the report could not be lodged immediately. He further submits that FSL report Ex. P-32 is positive as the sperm was found in the underwear seized from the accused/appellant. 7. Prosecutrix (PW-1) has stated in herevidence that on the date of incident when she was in her house with her husband, at about 8 p.m. the accused/appellant came there in a drunken condition and asked her husband to get some snacks from the nearby shop. According to her, ^'1i -3. when her husband had gone to get the snacks, the accused/appellant first pressed her breasts and when she was to raise an alarm, he tied her face with a small towel, threw her on the floor and after upturning her sari and petticoat and removing his own Lungi committed forcible sexual intercourse with her. She has stated that on hearing her cries, Firtinbai (PW-2) and Dhanbai (PW-3) reached there to whom she narrated the incident. She has further stated that after her husband got back, she narrated the entire incident to him also and then she along with him had gone to the house of the accused/appellant but he did not come out of his house. She has stated that as on the date of incident Panchayat elections were to take place, the report could not be lodged on the same day and two days thereafter she along with her husband, Firtin Bal and Samrin Bai had gone to the police station and lodged the report. Thereafter, she was sent for medical examination, her petticoat was seized by the police vide Ex. P-3 and the spot map Ex. P-4 was prepared by the Patwari. In cross examination, this witness has stated that apart from herself, her sister-in- law and brother-in-law were also living in the same house but on the date of incident they had gone to witness Ganesh immersion ceremony. She has denied the fact that she used to work in the house of the accused/appellant. She has however admitted that it is her husband who used to work there. She has stated that her husband took 10-15 minutes in getting back with snacks. According to her, as the Patwari and the police inspector had not asked anything about the location of the snacks shop, she had not disclosed the same to them. She has stated that as soon as her husband stepped out for getting snacks, accused/appellant had come close to her in 2-3 minutes and pressed her breasts and that she had disclosed the same to the police but why the same is missing from the FIR and her case diary statement she could not tell the reason thereof. According to this witness, she had even abused the appellant and also informed the police about the same but if it is not mentioned in the FIR and her case diary statement she could not say anything. She has stated that at the time of incident she was sitting in her room itself and was not dragged by the accused/appellant from the verandah and if the same is mentioned in the case diary statement, she could not tell the » reason for that. She has clarified that at the time of incident the 'iuiq Aq pejinbui 6uieq uo pue ajiM siq uo adej peuiiuujoo peq iue||9dde e4t (eqi xuinoesojd eyi 10 pueqsny 341 Aq psiujoiui SGM 9L| yeu^ eouepjAe siq ui peieis seq (fr-Md) Luej)|E|!i '(z-AAd) lequiijij Aq se BUII|I eLues aqi isoiuie aouepiAe j94 ui peieis seq (e-Md) lequeqa 'e|!isoq pejepep ussq seq ssauijM siqi 'jayeajsqi -luapioui sqi p uoiiduosep peijeiep aqi 3Ai6 }ou pip uoiieiej ui MB|-U!-J3l46nep 194 6ui3q xiflnoesojd 941 leyi p3}Q}s sey 943 'lue||3dde/pssnooB 941 Aq adej 0} psioefqns SBM siis leqi jsq pSLUJoiui xuinoesojd SL|I U9L|i pue Aeme Buiuum tueiiedde/pesnooe eqt MBS ays 'esnoy jsq 0} paysm eys ue^M xuinoesojd 9qt IQ eoiOA eqi Buueaq jeye teqi souepiAa jeq ui peieis seq (z-AAd) 'equitJij •(fr-Md) Luej)|B|!i jo eouEisui eyi ).B iuB||8dde/pssnooe e^t isuieee jeij Aq peBpoi SEM )JOdSJ 9S|BJ B }E4l pe^ eqi peiuap seq 943 'yodaj 341 p96po| pue UOjlElS 931|0d 94} 0} 1U8M seAftEiej je^o pue pueqsnq jeq IIIJM 6uo|e eqs 'ejeqi us^ei SEM uoisioap ou usqm pue p8||eo SGM 6u[i99LU leAeiioued aqi luepioui eqi ^o Aep pjiq^ eqi uo pue Aep leq} uo peBpo| sq iou p|noo yodej eqi 9Be||iA eqi ui 6uiioA SGM sjeyi 'iuepioui sq} jo Aep puooes eqi uo SE yeUi} peieis seq 8L|S uoiiisodep J9L| to iz 4dej6Bjed U| 'Aiiep leooiued pue ues jeq ^seM pue qieq a)|ei p|noM eL|s ieqi peieis sey eqs 'ieooiued jeq yiiM }jed eiEAud jaq pediM peL| eqs luapioui sqi jsye teyi pue ssinuiuj eAij Aipjey ua^ei SAeq 146101 souayo jo UOISSILULUOO 941 teqt peiB^s SBL| 8L|s •lUBiisdde/pasnooe eqi L|I!M JIEJJ.E Aue peq sqs }ei\} pej eqi peiuep OS|B seq SLIS 'jeqiojq jsq 9q 0} sueddeq lUBiiedde/pssnooe eqi uo!tB|9j eBeiiiA ui 'jsq 0} 6uipjooov 'asnoq jeq pejeiue jaAeu peii iue||3dde 941 'tuspioui ^o eiep 94} sjoieq leqi p9ie}s sei< eqg •eouEtsisaj p >|JELU e se tue||9dde/p8snooe eqt eiiq uaA3 iou p|noo eqs 'ismoi IIGLUS e 4iiM dn p9it SBM qinoui jsy se leqi pa^s sey eqs 'ss9|d|9q SBM eifs 'aieis ua^ump e ui SBM aq se inq soueisisej pejejj.o PEL| 343 'xss 0} jeq Ouipsfqns SEM lueiiedde eqt 9|iqM 'jey 01 Buipjooov 'jeaMjapun eqi ejoM SL| JQ i6un-i siq paAoiusj peq lueiiedde/pesnooe sqi jaiiieqM 0} se sas »ou pinoo SL|S 'IOMO} ||EUJS B qtim OS|B saAs jeL| paii peq iuB||Sdde 941 'yinoLu jaq 0104 iJede se leqi jeep i\ epeLU jeqijn^ SEL| eqs 'yioouis SEM iods eqi jo soepns sqi 6unp MOO IIIIM psjesujs Buieq SB sssoojd ai|t ui fjn[u\ Aue uieisns }ou pip eqs pue leooiued 941 se ||3M se eiues sqt peujn^dn A|dLuis SL) inq ues jeq psAOiuej iou peii lueiiadde/pesnooe h- 0 •-s~- the prosecutrix had also narrated the incident to him. Sewakram (PW-5) - the husband of the prosecutrix supporting the case of the prosecution has stated in his evidence that when he was in his house along with his wife, the appellant called him and gave Rs. 5/- for getting the snacks from the market. According to him, when he returned home with the snacks, appellant was not there and the prosecutrix was found weeping and informed him about the rape committed by the accused/appellant. He has stated that at that time Firtinbai and Dhanbai were also present in his house. According to this witness, on being asked as to why she had not protested against the act of the accused/appellant, the prosecutrix informed him that she was forcibly subjected to rape by him. Thereafter, according to him, he and his wife went to the house of the accused/appellant and asked him to come out of the house but he did not do that. Thereafter.the incident was informed to the villagers and village meeting was called and two days thereafter the report came to be lodged. According to this witness, he being illiterate could not tell the exact date of the incident. In cross examination also this witness stood firm to what he has stated in the examination-in-chief. Rohit Kumar (PW-6), Nanhu (PW-7), Budhwa (PW-8), Netram Ratre (PW-9), Tarachandra (PW-11) and Damru alias Damlu (PW-12) have also made similar statement as has been made by Tilakram (PW-4). Devlal (PW-10) is the witness to the seizure of certain articles made under Ex. P-8. Kanhaiyalal (PW-13) is the witness to the arrest vide arrest memo Ex. P-9. Ram Avtar Soni (PW-14) is the witness to seizure of slides made under Ex. P-10. Pritam Singh Yadav (PW-15) is the head constable and witness to seizure of slides and hadtaken the prosecutrix for medical examination. Parasram (PW-16) - the head constable is the witness to seizure of articles made under Ex. P- 10. Sub InspectorA.K. Bajpai (PW-17) is the investigating officerwho has supported the case of the prosecution. P.R. Dewangan (PW-18) is the witness who had medically examined the accused/appellant and given his report Ex. P-23 opining that he was capable of performing sexual intercourse. Mohan (PW-19) has not supported the case of the prosecution and has been declared hostile. Panchuram (PW-20) is the witness to spot map Ex. P-4. Suresh Pathak (PW-21) is the witness who took the accused/appellant for medical examination. Dr. (Ku.) S. Kachhap (PW-22) is the witness who had medically examined the prosecutrix and given her report Ex. P-26 opining that there was no injury on her person and she was habitual to sexual intercourse. Nandlal Dhiwar (PW-23) is the Patwari who prepared the spot map Ex. P-4. Sub Inspector namely D. Banjor (PW-24) is the witness who had prepared charge sheet. Tulsidas (DW-1) has stated that the accused/appellant had fought election against Tilakram (PW-4) who was related to the prosecutrix and other family members 8. Minute examination of the matehal available on record including the evidence of the witnesses particularly that of the prosecutrix shows that after asking her husband to get the snacks from the market when the prosecutrix was all alone, he made her the victim of his thirst for sex afier tying her mouth with a small towel. Of course, there is delay of two days in lodging the report but the same has been explained by the prosecutrix that as the Panchayat elections were due on the date of incident, the report could not be lodged properiy. To decide a case involving rape, the first and foremost thing to be seen is the statement of the prosecutrix and if the same appears to be trustworthy, the other technical lacunae such as delay in lodging the report etc. would not be fatal to the case of the prosecution. In the case in hand, the prosecutrix has been throughout </e?y consistent while stating the things transpired and that apart the FSL report is also positive and that being so the delay in lodging the FIR should not come in the way to decide the case on merit. The act of the appellant in first driving the husband of the prosecutrix out of the house and then committing forcible sexual intercourse with her taking advantage of her loneliness, does not call for any lenient consideration. 9. Accordingly, the judgment of the trial Court being based on the evidence adduced by the prosecution is flawless and warrants no interference therewith. Appeal thus goes and the judgment impugned remains as it is. As the accused/appellant is already in jail, no order regarding his surrender etc. is necessary. 10. Dismissat is the net result of this appeal. ^n r^Naker o "