HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 802/ 1999 APPELLANT Atul Kumar Versus RESPONDENT State of M.P (now ‘ Chhattisgarh) J U D G M E N T POST ON Q‘ AUGUST. 2009 /| Sd/— R.L. Jhanwar Kx Judge " ‘ 1 \ SINGLE BENCH: HON’BLE SHRI R. L. JHANWAR, J. / ,, HIGH COURT OF CHEATTISGARH: BILASPUR SINGLE BENCH: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeai No.802 l 1999 Appeilant Atul Kumar, son of Hanuman Prasad Gupta, aged 25 y6m, R/o Village Dhoghar, RS. Pendra, Distn'ct, Bilaspur Versus Respondent The State of M.P. ( Now Chhattisgarh) APPEAL UNDER SECTION 374 (2} OF THE CODE OF CRIMINAL PROCEDURE, 1973 Present:- Dr. Rajesh Pandey, counsel for the appellant. Shri D, K. Gwalre, Govt. Advocate for the State. JUDGMENT (Delivered on 2448;2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 13m March, 1999 delivered by Additional Sessions Judge, Bilaspur link Pendraroad in S.T. No.217/ 1998, whereby the learned Additional Sessions Judge, has convicted the appellant for commission of oEence punishable under Section 376 of . the IPC and sentenced him to undergo R.I. for 7 years and to pay line of Rs.2000/ , in default of payment of nne to undergo additional R.I. for 1 year. 2. The prosecution story, in brief, is that on 9.4. 1998 at about 9:00 pm. prosecutrix Savita Bai had gone to attend the call of nature towards badi. The appellant, who was her neighbour came there and caught hold the prosecutn'x and gagged her mouth with safi, thereafter he threw her on the ground and committed sexual intercourse against her will and consent and went away. The prosecutn'x removed saji from her mouth and raise out cry. Her brother-in—law Surendra Soni' (P.W.6), mother-in—law- Laxmi Bai (P.W.3) and her husband Shushil Kumar Soni (P.W.2) c and saw the appellant fleeing nom there. ame @ She narratad the story to them. The prosecutxjix along with her husband Shushjl Kumar Som' (P.W.2), and brother-in-Iaw Surendra (P.W.6) went to police station on the same night and lodged the report at police station Pendra. Police recorded FIR and started investigation. Prosecutrix was sent for medical examination. Dr. Archana Mishxa (P.W.7) examined the prosecutrix and prepared her report Ex. P-lO. Police recorded statements under Section 161 Cr.P.C. Police seized broken bangles and other articles nom the spot; seizure memo is Ex. P—3. Other formalities have also been complied with. After completion of investigation the charge sheet for the offence punishable under Section 376 of the IPC was tiled in the Court of J.M.F.C., Pendraroad, who, in due course, committed the case to the Court of Sessions at Bilaspur. Learned SessionsJudge made over the case to the learned Additional Sessions Judge, Bilaspur link Court— Pendra. . The learned Additional Sessions Judge, Pendraroad framed charge under Sections 376 of the IPC and read over and explained to the appellant, who abjured the guilt and pleaded that he has been falsely implicated in the case. The learned Additional Sessions Judge after completion of the trial, evaluating the evidence available on record and hearing the counsel for respective parties convicted and sentenced the appellants, as above. Tew eve“ i . I have heard learned counsel for both the parties at length and perused the record of the trial Court. . Learned trial Judge considered prosecutrix’s statement very minutely and has taken into consideration all the facts regarding admissibility of her statement. He also considered all other oral evidence rendere in support of prosecutrix’s evidence. He also considered documentary evidence and seized material on record in support of statement of prosecutrix. He also considered all the defence taken by the appellant in rebuttal of prosecution version. Thereafter, minutely dealing with entire factor he accepted the prosecution story to be true and thereafter recorded the order of conviction and sentence. d . So far statsment of prosecutrix is concerned, she deposad that on the date of incident, in the night at abut 9:00 pm, when she had gone to attend the call of nature towards badi, the appellant came, tied her mouth with scm’ and caught hold her hands. When She tn'ed to save herself, he fell her down ion the ground, due to which her bangle s were broken and her blouse was torn. The appellant thereafter forcefully committed sexual intercourse with her and fled form there. She removed safi from her month and raised hue and cry, whereupon her mother—in—law Laxmi Bai (P.W.3), brother—in—law Surendra(P.W.6) and her husband Shushil Kumar Soni (P.W.2) came there. She narrated the incident to them. Thereafter, they went to police station and lodged the FIR. . Prosecutrix hasbeen cross— examined at length but except some minor contradictions, nothing could have been brought on record so as to discredit her version. SO‘far as false implication is concerned there is nothing on record. So far as consent is concerned, from her cross examination it is clear that she used to live inside her house. She visited the village recently after her marriage. Therefore the consent of prosecutrix with appellant for sexual intercourse does not arise. In her cross—examination she affirmed her statement. Her statement has been corroborated by Surendra Soni (P.W.6), Laxrni Bai (P.W.3) and her husband Shushil Kumar Soni (P.W.2) who have deposed that after hearing noise of the prosecutrix they came there and saw the appellant going from there. Prosecutrix narrated story to them. Prosecutrix’s statement further finds support from the seizure of broken bangles from the spot which has been proved by prosecutrix and Jayanti Shukla, (RW. 10), the Investigating Gmcer. Her torn blouse has also been seized and proved by above witness and these entire factors also support the prosecutrix statement. Prosecutrix’s statement also iinds cormboration with her FIR, EX. P. -1, duly proved by the prosecutrix and Ramesh Kumar Shanna (P.W.4}. . Learned counsel for the appellant vehemently contended that Laxmi Bai (P.W.3) in her cross examination has admitted that - Wwse’r%%ana§aira@@anaeww®mfw éammeatammm IWWW%%W§W%W Witwatra Jeawasraswmsnraawskawnadruewn u 'W%WW%H§%%W§W%I§F%W%%@' @Q W Ww%$%%mm%%a IEFHFW$%%WW&$T§€% ug’mfrh” 10. Therefore in absence of declaring the witness hostile or re— examined her by the prosecution and there are so many discrepancies in the statement of Witnesses that the story of prosecution becomes doubtful and the appellant is entitled for acquittal. He placed reliance on ate of Rajasthan). 11. So far admission of Witnsses Laxmi Bai (P.W.3) is oncerned it does not create any cloud on the testimony of prosecution Witnesses because Witness Surendra (P.W.6) has been examined by the prosecuu'on and he did not support the above statement of Laxmi Bai (P am .W.3). She is not a hostile witness nor her statement is biguous. Therefore the question of declaring Laxmi Bai (P.W.3) to be hostile or her r—examination does not arise in the nstant case. Her above dmission comes within the category of earsay evidence and when same does not find suppor from the statement of Surendra (P.W.6), has no iortance in the instant case. No other reasons have been raised by the appellan for disbelieving the prosecution story. t 1‘. The observation made b the Hon’ble Apex Court in 05i 5 an) is distinguishable on cts and circumstances of the case. Learned trial Court has also taken care o consider the above admsion made by witness Laxmi Bai (P.W.3) and has elaborately discussed the impact of her above admission. 13. From the aforesaid discussion, it is clear that the statement of prosecution witnesses Sarita Bai (RW. 1) Shushil Kumar Soni (P.W.2) Laxmi Bai (P.W.3) and Surendra Soni (P.W.6) does not suffer from any infirmity which may discredit their versions. Their versions are ' trustworthy and also duly supported with other comers. Learned trial Court did not commit any illegality in placing reliance on their testimony for recording conviction. Finding recorded by the trial Court does not call for any interference. The learned trial Court rightly (2005) 5 Supreme Court Cases 272 [Rafa Ram Vs. St e c e i a h t mp 2 y (20 Supreme Court Cases 272 (Raja Ram Vs. State of Rqasth fa t is accepted the above Witnesses to be trustworthy and rightly convicted and sentenced the appellant. 14. In the result, the appeal has no merit and is accordingly dismissed. Conviction and sentenced passed by the trial Court is maintained. f >Sd/- R.L. Jhanwa" ,,;/ Judge