^^ APPELLANT: RESPONE5ENT: HI©HCOURT OF CHHATnS©ARH.BILASPUR Criminal Appeal No,79 of 2000 Prcd<ash Versus State of AA.P. (Now State of CHH.) Post for pronGuncement of jud<3?rsent on 5 Februory, 2009 Sd/- T.P. Sharma Judge APPELLANT: (In Joit) gESPONDENT: HZSH COURT OF CHHATHSeARH. BILASPUR Cntnlno! AppeaS No.79 of 2000 Prokash, S/o PremJQl/ aged about 32 yeors, R/o Viliage JabudvQhi, P.S. Mahamaya, Distt. Durg (CHH.) Versus State of M.P. (Now State of CHH.), Tnrough P.5. Mahamaya, Distt. Durg (CHH.) (Criminai appeQl under Section 374 (2) of the Code of Criminai Procedure, 1973} Present: Mr. P. Diwaker, Senior Advocate with AAr. Ashish Surana, Advocate for the appeilant, AAr. Sameer Behar, Panei Lawyer for the State/respondent. Sinoie Beneh: Hon'bSe Mr. T.P. Shar'ma, J JU&0MENT (Pa&sed on o^ February, 2009) 1. By this apped the appeiJQnt has chQllenged iegQiity <& propriety of the judgment of convlction & order of sentence doted 17-11-2000 passed by the Additional Sessions Judge, Bdod in Ses^ions Trlal No.214/2000, whereby iearned Additionai Sessions Judae after hoiding the occused/appeilant gui!ty for co?-nmis3ion of the offence of rape & criminal house tresposs with intent to commit the offence puni^habie with imprisonrBent for life, convicted him under Sections 450 <& 376 (1) of the I.P.C. and sentenced him to undergo RJ. for seven years for each count. 2. Judgment is challenged on the ground that without any c!|nching & reiiabie evidence the Court bebw has convicted <& sentenced the appeilant as aforementioned. 3. Case of the prosecution, in brief, is that on 21-4-2000 at about 12 mid night, the prosecutrix (PW-2), aged about 25 yeor^, was sieeping in her Varandah, her husband gone out of the village to attend o marria9€,at that time, the accused entered into the house of the prosecutrix and forcefuliy committed rape on her. J^ne prosecutrix crled for heip whereupon the accused fied oway from the spot. Neighbours Bedo Bai, Dauaram <& others come to the house of the prosecutrix. Th^ gr'o5ecutrjx went to the house of the accused Qlon9 with other persons and they brought the accused in the village. The prosecutrix slapped the QccusecS ^-^^' 2 before BjsahurQm, Teeju & Tslak. At that time, her husband CQme. The prosecutrix toid the incident to him and abo to the persons present. Second day morning at 7.45 a.m. she lodged the report vide Ex.P-2. The prosecutrix was sent for medIcQi ©xaminationvide ExP-5A cind she wos ©xaminedby Dr< AArs. Shashi CIaudius ff>W-6). Th@ prosecutrix wos found to be accustomed to sexual intercourse. Two slides of voginal smear of the prosecutrix were prepared and handed oyer to the constabie. Her Detticoat was seized vide ExP-4 and the same was sent for chemico! examination. Siides of v^inai smear were seized vide Ex.P- 7. Underwear of the accused was seized vide Ex.P-12. The accused wos also sent for medicQi exammQtion. He WQS examined by t)r. P. Dhanendra yw-9) vide Ex.P- 8. Ten contusions and iacerated wound were found over the body of the accused, On his Internal exQmination, he was found capable for committin9 sexuai intercourse. Spot mop Ex.P-1 WGS prepared by the Patwari. Spot map was also prepared by the Police Offjcer vide Ex.P-13. Statements of the ^itnesses i^ere recorded under Section 161 of the CrP.C. 4. After conpletion of investiaatio-n, char9e sheet i^as fiied before the Addltiona! Chief Judiciai AAagI^trote, Bafod, who m turn, committed the case to the Court of Session^ Judge, Durg, from where learned Additional Sessions Judge, Babd received the case on transfer for triai. 5. In order to prove the guilt of the oppeiiant, the prosecution hos examined as mony as nine witnesses. Stat€avnent of the accused was recorded under Section 313 of the Cr.P.C, in which he denied the circumstances appecring agairsSt him and pieaded innocence & false impiication. 6, After affording opportunity of hearin9 to the parties, Court beioi^ has convicted & sentenced the appeilant in the aforesdd manner. 7. I have heard learned counse! for the parties and perused the impu9ned jud9ment QS also the mQteriaI avaiiable on racord. 8. Leorned counsei appearing on behaif of the cppeilant submits that the prosecutlon has not adduced or^ ciinchlng <S reliobie evidence. Jhc prosecutrix has not stated in detail about the incident, she has stated that the accused $\^Jia c^ f^RTT 1 Her evidence hos not b©encorroborated by any independent source i.e. independent witnesses <& medicQl evidence. 9. On the other hand, learned counsei for the State/respondent submitted that the prosecution has proved its case beyond all reosonQbie doubts. The prosecutrix ^) ^ -'"s'^'f^f} (PW-2) has cQtegorically deposed that the accused hos committed forcefui sexuol intercourse on her. Her evidence inspires confidence, same is trustworthy ond sufficient for drowing inference that theQccused has committed the offence punishabSe under Sections 450 & 376 (1) of the I.P.C. 10. In order to appreciate the contentions of the parties and to connect the accused with the crime in question, I have examined the statements of the witnesses odduced on behaif of the prosecution. 11. The prosecutrix (PV^-2), who was Q9ed about 25 years, has stoted in her ©vidence that on the fateful ni9ht ^he was present in her house, the accused enteredinto her house and committed rape on her ofter pressing her neck. She has bd9ed the report vide ExP-2. She ^a^ examined by the doctor and her petticoGt was seized vide ExP-4. 12. Bedo Bai (PW~3), whose name has been mentioned by the prosecutrix in th@ F.I.R., has depo^ed thot on the fateful night at about 12 mid night she heard the i^eeping sound of the prosecutrlx, she went to the prosecutrix ond asked as to whot has happened whereupon the prosecutrix toid her that the accused after entering into her house hos committed rape on her, at that time witness &GUGrGm also came and the prosecutrix narrated the incident to Dauarom also. &Guaram (PW-4) has supported the statement of Bedo Bai (PW-3). 13. The prosecutrix was examined by Dr. Mrs. Shoshi CIaudius (PW-6) who has deposed that on 22-4-20CX) she has examined the prosecutrix, her secondary sexuol chorQcters were weli deveioped and she is accustomed to SCXUGI intercourse. Two slides of vaginal smear of the prosecutrix were taken. This i^ltness hcis further stQted thot she has aiso examined th©petticoat of the prosecutrix containin9 some stdns. 14. Dr. P. Dhanendro ^W-9) has exomined the appeliant. He has stated in his evidence that on 22-4-2000 at about 12.30 p.m. he has examined the appeilont and found ten injuries over his body vide Ex.P-8. He also found the accused competent to commit sexual intercourse. 15. The prosecutrix 0:>W-2) hos admitted in pora 3 of her cross-exQmination thot at the time of incident the li9ht was switched off and there was darkness, therefore, she was not in o position to ^ay that from which way the accused cGme and entered into her house. She has stated that she was 5leepin9 aion9 with her two children, the accused came and csfter pressin9 her neck committed rape on ^ her. She has Glso stated that due to darkness she was not in a position to sw as to who has entered into her house. 16. Bedo Bai (PW-3) has deposed that the prosecutrix came to h^r house and wake her up and told her that some thief had entered into her house. But she has admitted in para 3 of her cross-examinQtion that they all went to the house of the accused/Qppellant, they brought him out from his house and at thQt time the villogers were present there. She has o!so admitted thot the accused has stated that he had not gone to the house of the prosecutrix, but the prosecutrix A her husband assaulted him. 17. The accused has not suggested anything to the prosecutrix or her witnesses that he has been fdsely implicated in the crime. The prosecutrix h<25 stated in detaii that the occused is the person who after entering into her house has committed forcefui sexual intercourse on her. No suggestion of consent has been 9iven on behaif of the accused. The accused has denied the incident. AIthough Bedo Bai (PW-3) has not supported the CQSC in detail, but she has specificaliy stated that the prosecutrix, her husband and ali the persons went to the house of the accused/they took him out ond also assaulted him. Conduct of the prosecutrix & her husband shows that the accused is the person who has committed wrong, therefore, they went to his house at !ate night and assaulted him olso. Factum of GSSQuit on the accused has been corroborated by Dr. P. Dhanendra (PW-9). Ifi. Evidence of the prosecutrix (PW-2), Bedo Bai (PW-3) <& &auQram 0:>W-4)-ciearly shows that the accused is the person who entered into the house of the prosecutrix csnd committed rape on her. When she cried and asked for help of the neighbours, she dong with the neighbours went to the house of the accused, the viilagers brou9ht the accused out of his house ot mid night and assaulted him. Conduct of the villa9ers/nei9hbours of the prosecutrix shows that the prosecutrix wcss not the consentin9 party and as Q resuit of rape committed on her, she shouted and a!so assaulted the appeilont. The appellant has not offered any expianGtion, even he hos not offered any ©xplanationreiGtin9 to injuries Qli over his body which are suggestive of the fact that he has been assauited by the viJIaa^ persons. 19. Evidence of the prosecutrix is corroborated by independent witnesses. It inspires confidence and it is trustworthy. It is sufficient for warrant of convlction agdnst the Qppeilant. The appeliant has committed criminai house 'v. trespass and committed the offence of rape with the prosecutrix, which is punishabie under Sections 450 <& 376 (1) of the I.P.C. 20. After appreciating the evidence avaiiable on record, the Court be!ow has convicted <& sentenced the appeilant in the Qforesaid manner. Conviction of the appellont under Sections 450 &. 376 (1) of the IP.C. is sustainable under the law and the Court be!ow hos awarded the minimum sentence prescribed. No interference is caiied for in this regord. The appeilant has suffered th3 sentences imposed upon him and he has been released from custody ofter serving the sentences. 21. Consequently, the oppeol being devoid of merit liable to be di.smissed ond it is hereby dismissed. Sd/- T.P. Sharma Judge