I THE HON’BLE HIGH COURT OF JUDICATURE AT BILASPU CHHATTISC‘ ARI-I E RIMINAL APPEAL N0.?f (j /2001 SWA a S/o Shri Laxman Ram ged about 31 years Village Gopalpu P O Suraur Tahsd Surajpu ls CG) . V' PPELLANT ACUSE A (IN JAIL) - — VERSUS- State of Chhattisgarh Through O I C ofP S Surapu lst Sua ( ! . R ...RESPODENT N ‘ A MEMD ORANUM' OF APPEAL U/s 374 (2! OF THE CRIMINAL PROCEDURE CODE E N R C DOLEHR A r jp r Dt Surguja ( ' A ‘ CD A \ Jr D rguj CG) riminal Appeal ‘No.954[20 C 01 h il hkh . Single Bench- Hon’ble Sri Dip Raosaheb Desmu, J Doleshwa: ’ Vs. State of Ch‘h'attisgarh Present — “Shn Abhav Tlwan, lcarned counsel for the appellan Shn Ashlsh Shukla Govt Advocate/Addmonal Puhc rosecuor ' for the State ORAL JUDGMEN (Dehvered on 21st of March 2006) Tins appeal 1s duected agamst the Judgnent dated V‘ , . ‘ h )E, ' ' under Secuon-451 8r. 376 of the IPC but was sentenced only under Sechon-376 of IPC to ngomus nnpnsonment for 7 vears and hue of Rs 5 000/ and m default of payment of nne to further undergo a i 22—09 2001 delivemd by Shn TN HPanchoh, learned Vlth :xAddmonal Sess1ons Judge,(FTC Suralpur D1smct-Sarguja m ' iSessmns Case No 228/ 1996 whereby the appellant was convxcted ddmonal ngorous nnpnsonment for 6 months t 1s not dlsputed that the appellant had under Sectlon— 94 of Cr P C admltted the genumeness of medlcal xammauon report of the pmsecumx by Dr S N Kmdo on 02 19.96 Vlde EXP-16 v Bn‘etly Stated the pmsecutionr story is that on 19-02—1996 at abouti5 RM; while the pmseCut'rix was alone in her, » -ouse in Village—GOpalpur, the appellant who was her h—-la a 1de the house The aellant ‘ ‘ . t : - b Pt T I 2 ' e >20 lZrh -bmter1nw cme ms pp rcaught hold of the hands of the prosccumx and thxeatenadv to k1“ her, 1f she shouted Them was a scume 1n Wh1ch the, bangles of thc pmsecutnx were broken The appellant ’ thereafter made the prosecumx to he on the mmd and \ mounung upon her comm1tted rape and mu away \ 4. ’ At about 6 P.M.,when Mst. Himndiya PW—2 mother-in—law of the pinsecutn’x and Husband of the pmsecum‘x Shivram ‘ PW-4 returned home, the pmsecumx narrated the meldent 'to them F I R was lodged v1de EX P—l on 20-02 1996 at 1 Pohce Stauon-SuraJpur, s1tuated about 3 K M awav hum the place of occurrence at O9 15 A M Upon bemg sent for 'medlcall exammauon Dr IDGupta PW-S found that ‘ although there %e1e no s1gns of external mjmy the " ‘ I pmsecutnx was complammg of pam 1n the nght elbow H -. Jomt and back The prosecumx was med1cally exammed by WAS Dr SNKmdo on 20-02 1996 at 425 PM No t § ,- I vmJury mther external or on her pnvate parts and no 1x i ' i ‘ r ' ev1dence of forcible Intercourse was found It was opined i that the prosecutnx was hab1tua1 of sexual Intercourse and therefore no denmte op1mon about the rape could be gtven p Vagnal shdes of the prosecumx were prepared and sealed The accused was also exammed by Dr I D Gupta PW~5 on a 21-02 1996 and found that he was capable of performmg sexual mtemourse One used petucoat of the pmsecun'xx‘ was sewed on 20—02 1996 v1de Ex P—3 and broken bangles were se1zed hom the place of occurrence on 20-02 1996 , vrde Ex P—2 One old used underwear of the appellant was also serzed on 21-02 1996 vrde Ex p-6 The vagrnal shdes of the prosecutrrx used petucoat and ‘ underwear of the appellant were sent for chemrcal ‘4 i examrnatron to the Forensrc Scrence Laboratory Vrde ' ; . " / ' Shn Abhav Tlwan learned counsel for the appellant has 3 assmled the conwcnon of the appellant on the yound that ’ there 1s no sansfactoxy explananon for the delay m lodgng the Fl R on the next day He has further contended that a the medlcal exammatlon mport Ex P—5 of the pmsecumx _ does not corroborate the tesumony of the prosecutnx and \, renders her ev1dence unrehable He also rehed upon the _ ev1dence led bv the appellant 1n hls defence to argue that the appellant had been falsely Lmphcated upon an electlon - nvalrv Para 12 of the ev1dence of the prosecuu‘lx was also referred to whxle argumg that the conduct of the 5 pmsccuignx 1n not ralsmg an alarm Jmmedlately after the door wasclosed by the appellant rendered her testimony ’ - unworthv of cred1t On the other hand Shn Ashlsh " ; r Shuklap learned counsel appearing for the State has - argued 1n support of the 1mpugned Judgnent 1 opinion dated 30-04 1996’ Ex P—14 pmsence of semen and l human spermatozoa was con&med on all the amcles menuoned above It was found that the stains were not su$c1ent for serologlcal exammauon. After compleuon of ‘5 investigation, 'fhe appellant’was prosecuted under Section- ‘ " 451 8r. Section-3‘76 of IPC. The appellant abjured the guilt, pleaded ‘innocence and false implication due to election ' rivalrv The prosecun'on examined as many as 7 Witnesses ' t The appellant also exammed 6 w1tnesses m support of h1s _ ’ §~ defence The learned t1al Judge relymg upon the ev1dence led bv the pmsecunon conv1cted the appellant under _ Section-451 85 376 of IPC but mposed the sentence on the ‘ appellant only under Secuon-376 of IPC aving heardirival contentionsJ have gone through the \ 1ecord. The prosecuu'ix has clearly stated that while she ' w'H .*..:} was alone in the house, she heard a knock' on the door .After opemng the door, the appellant came ms1de the house Smce she respected the appellant she oh‘ered a V chalr and was about to proceed towaxds the courtvanl that i the appellant closed the door and caught hold of her hands, due to Wh1ch her bangles were bmken She has l further tesnhed that the appellant threatened that 1f she shouted he would lnll her The appellant thereaher closed , the mam door h‘om ms1de and took her ms1de the _ couxtyaxd and made her he on the gound and commltted rape on her Thereafter the appellant ran away The teshmony of the prosecumx 1s whollv comborated bv her mother m-law Mst Hn‘ond1ya PW-2 and also by her husband ShNram PW-4 who have deposed that ‘ ‘ Immedlatelv after thelr return at home m the evemng at : about 6 P M the prosecuu‘lx had narrated the 1nc1dent to '; them The tesnmony of the prosecutnx Is also corroborated - by Dr.l.D.Gupta PW 5 rwho found upon medlcal _ examination of the prOsecuh‘ix that she was complaining of ’ pam 1n the nght elbow Jomt and back I have also gone jthrough the testimony of the pmsecutnx mmutelv I dud ' that 1t mspues confidence So far as the demce taken bv the appellant relatmg to false nnphcanon upon an elecnon nvah'y 1s concerned no such queshon was put to the husband of the prosecutnx Shlvram PW-4 I have also perused the testimony of w1tnesses exammed by the ‘ appellant 1n defence and I am of the cons1dexed opmmn ' é that the« ev1dence led bv the appellant does not help the appellant m any manner Prosecutnx has stood the test of ’ ‘ cross exammanon So far as the absence of any external ’ Injunes on her pnvatc pans ls concer “.e1p the appellant m any manner, smce the prosecutnx 1s ’ v .a mamed woman 1t also does not n .h The arguments relaung to unworthmess of thc testimony of the prosecumx m para 12 concerned have to be stated only to be rqccted Smce the appellant was a relauon of the prosecutnx she allowed the appellant to come msnie the house The prosecutnx could not have anv 1dea about the ultenor monve of the appellant Bes1des, the testunony of the prosecumx that she d1d not shout smce the appenaltt hadthxeatened to lnll her, 1s also trustworthy So far as the arguments relaung to delav m lodgmg the FIR 1s concerned 1t 1s unacceptable The prosecum nnmed1ately mformed about the moment at 6 P M whe ‘ her husband Shwmm PW 4 and mother-m—law Mst Hlrondlya PW 2 returned home on the same day Then‘ evxdence also shows that the husband and mother—m—law of the prosecutnx had mmedlately mformed the elderly personbcf the vdlage and the Kotwar about the moldent but the appellant had absconded mm the v1llage after the moxdent Themfoxe, 1t cannot be sald that there 1s no satisfactory explananonr for lodgmg the F,I.R on the next - day at b9.15 AM. Havmg thus cons1de1ed the ev1dence led bv the pmsecunon 1n 1ts enmety, I am of the cons1dered opmlon that the tesnmony of the pmsecumx 1s trustworthy and 1s’ wholly corroborated not onlv by Mst Hnnndxya PW 2 86 Slnvram PW—4 but also bv the FIR Ex P—1 and the I medlcal ev1dence of Dr ID Gupta PW—5 So far as the report Ex P-14 of Forensm Scxence Laboratory is concerned 1t cannot be lost srght OE that the prosecutnx 1s a married lady, the hrst mformauon report was lodged on the next day after the occurrence and no serologrcal i : i x n xaminaiion was done to show that the semen and hm'n permatozoa on the vag'n’al slide matched with the semen - pellant. of the ap aving thus considemd the evidence led . by ‘ ‘ e rosecution in its entirety, I am of the considemd opinion hat the! conviction of the appellant and sentence awanied t ll y i nteiference. H th p t i hereunder by the lealned trial Judge does not ca for an In the result, this appeal has no substance and is - l g _ ' ‘ Sd/— l DILIP RAOSAIEB DESHMUKH Judge \\ ,\ ‘ 'e an ‘ s