1 Efe^?^*«*\ ''sSSati'—^j f7 HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'bl^Shri Synil Kuniar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 122 of 1995 Rekh Ram. Sahu, aged 22 years, S/o Udai Ram Sahu, cultivator, resident of village Nalpani, Post Phuljhar, P.S. Dondi Lohara, District Durg Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through the District Magistrate, Durg (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. D.N. Prajapati, Advocate for the appellant. Mr. Arvind Dubey, Panel Law;7er for the State. JUDGMENT (20.10.2011) (1) This appeal is directed against the judgment dated 12th of January, 1995 passed in Session Trial No. 229/1994 by the Sbcth Additional Session Judge, Durg. (2) By the impugned judgment the appellant has been convicted under Section 376 IPC and sentenced to undergo R.I. for 7 years. (3) The records of the Session Trial are not available as the sarne could not be received, even after repeated efforts niade by the Registry. Therefore, looking to the facts and circumstances of the case, learned counsel for the appellant was directed to file the copies of depositions and the judgment. "•v ;R. ••• Criminal Appeal No. 122 of 1995 (4) Paper book was prepared and the appeal is being heard on the basis of the documents available in the paper-book. (5) We gather from the appellate records that the sentence imposed against the appellant was not suspended by this Court. On the basis of report dated 19.8.2011 received from Superintendent, Central Jail, Durg, learned counsel for the State has submitted that the appellant has been finally released from Central Jail, Durg on 11.09.1999 after getting remission of 1 year, 3 months and 27 days, and in this manner he has already undergone the entire sentence imposed upon him. (6) Prosecutrix (PW-1) was aged about 17 years on the date of the incident. On 01.01.1994, she h*ad gone to the forest for collecting wood along with the wife of the appellant. The allegations are that the appellant committed forcible sexual intercourse against the prosecutrix in the forest. The prosecutrbc after returning to her house narrated the story to her mother- Baijaan (PW-3). Since father of the prosecutrix (PW-1) namely Akhtar Miyan (PW-2) was out of station, therefore, the report could not be lodged immediately and ultimately after a village Panchayat on 04.01.1994, the Pirst Information Report was lodged on 05.01.1994. The prosecutrix was sent for her medical examination. She was examined by Dr. (Smt.) Alpana Agrawal (PW-8), who found following injuries on the person of the prosecutrix:- Criminal Appeal No. 122 of 1995 (i) 4-5 abrasions 3 c.m. x 1 mra x Imra on the upper portion of right thigh, blackish in colour; (ii) 2-3 abrasions 2 c.m. x 1mm x 1mm. on the upper portion of left thigh, blackish in colour & (iii) Lacerated wound 1 c.m. x 1 c.m. x 1 mm on the tip of right toe. According to her, the above injuries were simple injuries caused by hard and rough object within the duration of 3-7 days. On internal examination, she found swelling and redness on the hymen, but the hymen was found intact. She gave her report Ex.-P/10. (7) After completion of usual investigation, the charge-sheet was filed in the Court ofJudicial Magistrate, First Class, Balod, who in turn committed the matter to the Session Court, Durg, from where, it was received on transfer by the Sbcth Additional Session Judge, who conducted the trial and convicted and sentenced the appellant as aforementioned. (8) The conviction of the appellant is based on the testimonies pf the prosecutrbc (PW-1) and her parents. (9) Mr. D.N. Prajapati, learned counsel appearing on behalf of the appellant, argued that the prosecutrbc (PW-1) was not a reliable witness and the Session Judge erred in law in believing the testimony of the prosecutrix. Criminal Appeal No. 122 of 1995 (10) On the other hand, Mr. Arvind Dubey, leamed Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (11) I have heard learned counsel for the parties at length and have also perused the docuraents contained in paper-book. (12) The prosecutrbs (PW-1) deposed that on the fateful day, she had gone to the forest for collecting wood. She was accompanied by fhe wife of the appellant. The appellant also came in the forest. He caught hold of her and thereafter committed forcible sexual intercourse against her. When she tried to raise alarm, her mouth was gagged. Even the wife of the appellant did not come for her rescue. The appellant threatened her not to disclose these facts to her family members. After returning to her house, she narrated the story to her mother. When her father returned from Bhilai after 3-4 days, her mother narrated the story to him and a Panchayat was convened and thereafter a report was lodged. The prosecutrix has been cross-examined at length by the defence on many aspects, but nothing material could be brought on record in her cross-examination. The appellant has examined his wife- Rahibai (DW-1) in his defence who deposed that since a quarrel took place between the prosecutrix and this witness, therefore, a report has been lodged. It appears from Para-25 of the judgment that she also deposed that since the prosecutrix had climbed on a plum [ber) tree, therefore, she sustained the above injuries. The learned Session Judge did not rely on the testimony of DW-1 on Cnmmd A£pealNo. 122 of 1995 the ground that suggestions in this regard were not given by the defence to the prosecutrix in her cross-exsunination and the above theory of quarrel and climbing on plum tree is coming for fhe first time in defence evidence led by the appellant. On appreciation of the evidence of the prosecutruc (PW-1), we find that her evidence is duly corroborated by the medical evidence as Dr.(Smt.) Alpana Agrawal (PW-8) found the above external injuries on the person of the prosecutrus and she also found redness and swelling on the hyraen. Even if we take that the external injuries were received while clirabing on the plum tree, how the injuries on hymen was caused. All these facts corroborate the evidence of the prosecutrbc (PW-1) to the effect that she was subjected to sexual intercourse and during the intercourse, she sustained above external and intemal injuries. The evidence of the prosecutrix is reliable and there is no arabiguity in her evidence. Her evidence inspires confidence of the Court. I am of the view that the learned Session Judge committed no error while relying on the testimony of the prosecutrbi: (PW-1) for conviction of the appellant u/s 376 IPC. (13) For the foregoing reasons, I do not find any substance in the appeal. The appeal ffled by the appellant, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Sunil Kumar Sinha Judge vs.tti