^ ^ \)S ^?%< o^- ^•-\^ ^o\u BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.A. No._ ^^a!a Ssn^JT /2007 APPELLANT flN JAIU RESPONDENT Diwan Singh @ Diwana, S/o. Son Sai, aged about 19 years, R/o. Village-Gugarihapara, Dedari, P.S. Surajpur, District Sarguja (C.G.). VERSUS The State of Chhattisgarh, Through S.H.O. Surajpur, District Sarguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374f2) OF THE CODE OF CRIMINAL PROCEDURE. HIGH COURT OF CHHATTtSGARH AT BILASPUR (SB: Hon. Mr. Justice Pritinker Diwaker) CriminaS AppeaS No.818 of 2007 Appellant/ inJail Respondent Diwan Singh @ Diwana Versus The State of Chhattisgarh Criminal Appeal under Section 374 {2} of Code of Criminai Procedure Present: Shri J.K. Shastri, counsel for the appellant. Shri Praveen Das, Deputy Government Advocate for the State/ respondent. JUDGMENT (7th December, 2009) This appeai is directed against the judgment dated 11.09.2007, passed by First AdditionaE Sessions Judge, Surajpur, District Sarguja, in Sessions Trial No.160/2007 convicting the appellant for the offence punishabie under Section 376 (1) of the Sndian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs.5,000/-, in default of payment of fine to further undergo R.l. for one year. 2) Facts of the case in brief are that First Information Report (Ex.P-1) was Eodged on 05.01.2007 at about 6.30 pm by the prosecutrix (PW-1) aged about 17 years, alieging that on 05.01.2007 at about 3.00 pm. when she was grazing her goats in ^ ..... "^'..'^ her viiiage, the accused/appellant came there; forcibly took her to the nearby field where the standing crop of Rahar was existing; threw her on the ground; and after removing her clothes as also his clothes, despite her resistance, has committed sexua! intercourse with her forcibjy. It is aiso alleged that at the time of commission of offence her mouth was gagged by the accused and when she tried to raise hue and cry, she was prevented from the same. It is also mentioned in the FIR that her private part was bleeding and her Saiwar-suit and underwear were stained with biood. 3) So as to hoid the accused/appellant guilty, the prosecution examined as many as 8 witnesses. 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 faise implication in the case. 4) After hearing learned counse! for the parties, the tria! Court convicted and sentenced the accused/ appeilant as aforesaid. 5) Heard learned counsei for the parties and perused the material availabSe on record including the impugned judgment. 6) Learned counsel for the appeilant submitted that the present is a case of faise implication and the impugned judgment has been passed by the trial Court on the basis of the evidence of unreliable and interested witnesses. The medica! examination of ^T^-.. f% the prosecutrix vide Ex.P-16 by Dr. Snehalata Tirkey (PW-8) is doubtful. The appetiant has been implicated in the said offence because of the pendency of a civii dispute and previous enmity between the parties. Learned counse! submitted that it has been admitted by the prosecutrix in para 26 of her cross-examination that prior to registration of the offence against appellant Diwan Singh, money was given to the Police. Learned counsel further submitted that in fact, the offence has been committed by one Vishwanath, however, on account of the pending civil dispute between the parties, the appellant has been falseiy implicated. 7) On the other hand, learned counsel for the State/ respondent supported the impugned judgment and submitted that apart from the evidence of the prosecufrix, there is evidence of her sister-in-iaw (Bhabhi) PW-2 Purnima, who was promptly informed by the prosecutrix about the commission of rape by the appellant. She has further deposed that as soon as she came to know about the commission of rape, she herself examined the prosecutrix and found that her private part was bleeding and her Salwar-suit was stained with blood. Learned State counsel further submitted that the evidence of the prosecutrix has been duly corroborated by her medicat report Ex.P-16 and the evidence of Dr. Snehalata Tirkey (PW-8), who has categorically deposed that the prosecutrix has suffered not only external injuries, but also suffered injuries on her private part; her hymen was ruptured. Learned State counsel also submits that the defence has not been able to substantiate as to why theappellant has been falsety implicated in the caseand no defence witness whatsoever has been examined by the appellant except the fact that an attempt has been made to show that there was some land dispute between the parties. 8) From the First Information Report (Ex.P/1) it is clear that the prosecutrix has made specific atlegations against the appellant for commission of rape. In this promptly lodged FiR, it has been alleged by the prosecutrix that on the fateful day at about 3.00 p.m. when she was grazing her goats in the nearby field of her village, the accused came there; forcibly took her to the nearby field where standing crop oflRahar was existing; threw her on the ground and after removing her clothes as also his ciothes, committed sexual intercourse with her. It has been further alleged that when she prevented the accused from removing her clothes and tried to scream, the accused gagged her mouth with his hands and, therefore, she could not shout. it has also been alleged that immediateiy after commission of the offence she reached home and narrated the entire incident to her sister-in-law (Bhabhi) PW-2 Purnima. 9) The evidence of the prosecutrix has been duly corroborated by PW-2 Purnima, who is sister-in-law (Bhabhi) of the prosecutrix, who has categorically stated that on 05.01.2007 itself the prosecutrix had informed her about the commission of rape by the accused; then she has examined the prosecutrix and .^''_?%. .rfy'^i^. "^ found that cEoths were stained with blood and her private part was bieeding. Thereafter, PW-3 Rambriksh Singh, the brother of the prosecutrix was informed and report was lodged. 10) The evidence of the prosecutrix has been duiy corroborated by PW-8 Dr. Snehaiata Tirkey and as per the medical examination of the prosecutrix (Ex.P/16), the following injuries were found: "(i) Abrasion on right elbow joint of size 1 cm x 2 cm with pain brown in colour. (ii) Secondary sexual character underveloped. scanty and biack hair present on pubic region. (Jii) Blood stained hair surrounding labia minora and mazora tenderness was present and there was complain of pain on touch over vaginai orifice. (iv) Hymen was ruptured and the same was in tear shape of size 1 cm x2 cm x 0.5 cm and there was bleeding on touch, which shows that forceful intercourse has been committed. There was pain on entrance of finger in vagina, which is suggestive of the fact that she was not habitual for sexual jntercourse. No definite opinion was given about rape." 11) Dr. Snehalata Tirkey, PW-8 in her evidence before the Court has categorically opined that the prosecutrix has not only suffered external injuries but also suffered injuries on her private part. She further stated that her hymen was found torn and she was subjected to rape. She also stated that, on touching her private part, blood was oozing and was complaining pain. ^^^ ^^"•^ • ^ n S % :?!SiiK% | ^T\. 12) Though there is no report of chemical examiner, however, looking to the evidence of the prosecutrix and her sister-in-law PW-2 Purnima and the medicai report of Dr. Snehalata Tirkey (PW-8), it is ctear that the prosecutrix was subjected to rape by the accused. Even the accused/appeiiant was examined Vide Ex.P-12 by Dr. S.L. Jaiswal (PW-6), who has opined that the accused was capable of performing sexuat intercourse. 13) Now, coming to the contention advanced by learned counsel for the appellant that the accused has been fatsely implicated on account of some land dispute, mereiy because some land dispute is pending between the parties, it cannot be said that the prosecutrix has falsely implicated the accused. It is difficult to betieve that a girl would make such allegation at the cost of her iife. Mere pendency of some civi! dispute between the parties does not mean that the entire case of the prosecution becomes doubtfu!, especially when the evidence of the prosecutrix has been duiy corroborated by the medical evidence and the evidence of other witnesses. 14) Sp far as other contention as advanced by learned counsel for the appellant that the medical examination is doubtful is concerned, there is no evidence to this effect that as to In what manner the same becomes doubtful. PW-8 Dr. Snehalata Tirkey initiaily examined the prosecutrix vide Ex.P-16 and in her evidence before the Court she has duly supported her medical report. ^^ ^ 15) Lastly, as regards contention of learned counsel for the appellant that the prosecutrix has not stated in her evidence that she vvas medically examined, the prosecutrix in para 5 of her examination-in-chief has categoricalty stated that after obtaining her consent for medical examination she was taken to the hospital for examination. 16) Taking into consideration the facts and circumstancesof the case and looking to the evidence of the prosecutrix, her sister-in-law PW-2 Purnima and the medical evidence of Dr. Snehaiata Tirkey (PW-8) and further considering the contents of promptly lodged FIR, this Court is of the opinion that the prosecutrix was subjected to rape by the accused; the prosecution has established its case beyond ail reasonable doubts and the defence has not been able to elicit any circumstance to discredit the evidence of these witnesses. 17) In the result, the appeal being devoid of any merit is liable to be dismissed and is hereby dismissed. Sd7- Pritinker Diwaker Judge Subbu