kri. E’*’ r V W ?CW':Z§/,é @ APPEAL OF PRISONER $§§§g§g @gggh Father's NameW%_qw':(‘éW-mm“:::::n: gegtenCedtl Crime NO--.--.-.----.--- t0-‘6yamam@w1b‘6§©%' Ponce statidn -.--. l%§-~,5«-Session ?§V‘On-2t§“Q3: Trial No.-.%Q/2.%Og ._ ” er sec *°”“"“‘“‘3*'?ast‘r)'$mza rdr; ..‘....‘‘‘‘.‘‘‘.‘ V; :mqgIQa- + «r 4;, legal practitioner It is expained \ the to Appellate the prisonet Court that‘if wiilinot K he pmceed states%%.f§’hég%3%%rg%}§s4§t§<¥§{§§g$g( . ‘ with i the ’ base ' fo‘r‘seven lc L days 1311a 1‘ unléss the legal practitioner appearsJf, the legal practitioner does not wish to be represented by leagle practitioner the court may proceed at once with the caSe, and will not be obliged to give a hearing to anylegal practitioner who should appear. t- Date of Application for copy of‘judg'ement—------«5m---.----.-.--.-.---........-..--.-.... 2- Date on wich copy recieved----. Q 2’ oq’ oé’m- e- ' 3- Date on wich Appeal sent-«-------«‘-.-------QELQQé’V .--.-----.-.-- 4— Whether the prisoner wishes to be represented or not - Yes / No Whether The Judgement Copy and Progress Report of The case has given to ellant / Counselogof the appellant yeb ' Na.....eeeogees l Name-- Fomard$§§$iftEF JUDICIAL MAGISTRATE----m%-é@:{--------------..--.---. to gather to the roper Appellate Court. ‘ CF00000688O 3 r ML. Ind-3% Confinedin h ated-—-—e-L:m.—iea--2ooeuwen-“32$ -------«Jail»- Qt%’§@,?m --------- siférwi~ iri FattgFetoNfq ~ 0Lt§im>F %/t.éfi%el- twee N > w... .s ‘ ‘ te jof receipt in Appellate Court-#- , M {part e'l (i tezzdsie t i 5 ncr 2005 3 i a; We;§_2]. Receipt Cferk , atgsmtw t 3 p W > ,_ ; I; ;V;;a a r - HIGH COURT OF CHHATTISGARH : BILASPUR \ia, ‘ r Criminal Appeal under Section 374 of the Criminai Procedure Code, 1973 ‘4, -g Sinqie Bench: Hon’ble Shri Pritinker Diwaker, J. Present: - VShri Ashish Surana, counsel for the appeHant. $ Shri Akhil Mishra, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Delivered on this 16‘h'day of September, 2009) This appeal is directed against the judgment dated 28-09-2006, passed by the Special Judge. S.C. & S.T. Act; Bastar at JagdalpuLin Sessions Trial No.360/2005 whereby the accused/appellant has been» convicted under Section 376(1) of the lndian Penal Code and sentenced to undergo rigorous imprisonment for seven years and pay fine of Rs.10,000/-. in default of payment of fine, to undergo rigorous imprisonment for one year. (2) Case of the prosecution. in brief, is that on 12-08-2005 at about 8 P.M., when the prosecutrix, P.W.8 was at home, the accused-appellant ‘4‘ came there, took her to a nearby school building, removed her clothes, and thereafter committed rape on her. When the offence was being committed, the 'prosecutrix started shouting and on hearing her voice, Pancho Bai, P.W.4, mother of the prosecutrix and Bhanwa‘r Singh, P.W.7 reached the spot. Further case of the prosecution is that both witnesses i.e. Pancho Bai, l P.W.4 and Bhanwar Singh, P.W.7 saw the appellant and the prosecutrix in a compromising position and after seeing them, the appellant tried to run away but he was caught hold of by Bhanwar Singh, P.W.7. Ultimately he managed to flee away from the place of occurrence. On the next day, village meeting was convened but the accused/appellant did not attend the / / ,, , / / / Criminal Appeal No.776l2006 Appeilant Ratturam Ojha (In Jaii) Versus Respondent State of Chhattisgarh GE same. Thereafter. the report (Ex. P-5) was lodged on 13.8.2005 at about 11 A M at Police Station Keshkal Subsequently, the case was transferred to the Aadtm Jatl Kalyan Thana Jagdalpur where the FIR was registered as Ex P-1 On 13 08-2005 the prosecutnx was sent for medical exammatuon to Govt. Hospttal Kondagaon where Dr. Smt. Rajm Thakur, P.W.3 examined her and gave her report vide EXP-3. On medical examination, she opined that the prosecutrix was habitual to, sexual intercourse, one finger easily entered her vagina and hymen was found to be ruptured. She further opinedgthat there was one bruise in right thigh of the prosecutrix. The accused/apbellant was also sent for medical examination to Govt. Hospital, Jagdaipur whereDr. Vinay Kumar, P.W.2 examined him and gave his report vtde EXP-2? As per the opinion given by the Doctor, the appellant was capable of performing sexual intercourse. Vaginal slides were prepared and sent for chemical examinationvide Ex.P-12 and the presence of spermatozoa was confirmed thereon. Clothes of the accused-appellant were also sent for chemical examination and presence of spermatozoa was confirmed thereon too. After recording the statements of the witnesses and ~‘1 completion of investigation, the charge sheet was filed. (3) In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 9 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he has denied the charges levelled against him and pleaded his false implication in the case. (4) After affording due opportunity of hearing to the parties, the learned Special Judge has convicted and sentenced the accused—appellant as mentioned above. Hence, this appeal. (5) l have heard learned counsel for the parties and perused the record of the Trial Court including the judgment impugned. (6) Learned counsel appearing on behalf the accused/appellant submitted that statement of the prosecutrix is wholly unreliable, as she has not specifically stated anything about the commission of forcible sexual intercourse with her. Learned counsel for the appellant further submits that the prosecutrix has merely stated that after removing her clothes and that of l \ f. /\/ “swag!!! @ his own the appellant got over her and committed sexual Intercourse Learned counsel also submlts that even as per the report of Dr Smt Rajnr Thakur PW3 neither any defnlte oplmon about the sexual Intercourse could be given nor is there any report to the effect that the prosecutrix has suffered any injury on her private part. Learned counsel for the appellant further submits that hymen of the prosecutrix was found to be ruptured and one finger easily entered the vagina. He further submitted that the statements of so-called eye witnesses to the incident Pancho Bai, P.W.4 and’ ghanwar Singh, P.W.7 are wholly unreliable because it is literally impossible that_two persons would see the commission of rape while it goes on. He also submitted that those two eye witnesses had not reached the spot atter hearing the voice of the prosecutrix rather they reached there after being informed by the certain local boys that prosecutrix was crying in the school. He further submits that Bhanwar Singh, P.W.7 reached the spot » after receiving the‘information from Pancho Bai, P.W.4, the mother of the prosecutrix. He further submits that the prosecutrix seems to be a consenting party as she was major at the time of incident. 0n these: premises, learned counsel for the appellant urged that the appellant be acquitted of the charges levelled against him. (7) On the other hand, learned State counsel supports the impugned judgment and submits that the statement of the prosecutrix is absolutely natural and thus reliable as she is not required to explain the manner in which the offence was committed. He further submits that even if in the medical report of the Doctor, who has examined the prosecutrix. it has not been stated that the rape has been committed on her that will not help the appellant because she was found to be habitual to sexual intercourse. Learned State counsel further submits that there was a bruise on the right thigh of the prosecutrix which confirms that she was subjected to rape by the appellant. Learned State counsel further submits that in the report of the chemical analyzer EXP-12, presence of spermatozoa was confirmed on the dvaginal slides of the prosecutrix and on the clothes of the accused-appellant if ’ as 'well as on the clothes of the prosecutrix. Learned State counsel further i submits that in the statement of the Dr. Smt. Rajni Thakur. P.W.3. it hasfil also been stated that after examining the prosecutrix, she had observed; l " @ that the prosecutrix was of unsound mind. Like wise. Pancho Bai. PW-4. mother of the prosecutrix, has also stated that the prosecutrix was of unsound mind. (8) To have a vivid idea about the truthfulness of the statement of the prosecutrix, graphic description of the same appears to be essential. in her statement, she has stated that on the date of the incident, the appellant took her to a nearby house and after removing her clothes; the appellant has also removed his own clothes and committed sexual interaourse. She has further stated that after hearing the cries raised by her, mother Pancho Bai PW-4 and Bhanwar Singh PW 7 reached the spot Thus the statement of the prosecutnx appears to be absolutely natural and cannot by any stretch of Imagination be termed to be Incorrect This apart, rt was not a camera trial that she could have been more explicit in giving her statement. ln other words; the statement of the prosecutrix is self explanatory and there is no reason to discredit the same. (9) As regards, the argument advanced by the learned counsel for the appellant that Pancho Bai, PW-4 and Bhanwar Singh, PW-7 are the tutored witnesses and there are number of omissions and contradictions in their statements, cannot be accepted because both the witnesses, upon hearing the voice of the prosecutrix, reached the spot and saw the appellant and the prosecutrix in a compromising position. The statements of these two witnesses make it very clear that the appellant has committed the offence of \, rape. ln a rape case, the fact that the victim was accustomed to sexual \, intercourse is not a determinative factor. On the contrary. the point which l t r; J requires to be adjudicated is whether the accused-appellant has committed l rape on the victim or not. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law, give the license to any person to rape her. lt is the accused who is on trial and not the victim. Further, the present is a case where as per the evidence on record, the prOsecutrix was of an unsound mind and if the girl like the prosecutrix is not protected or rather subjected to rape in a manner in which the present case has been done, the accused cannot be dealt with liberally. l 5 {0 (10) It is well settled that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. Statement of the prosecutrix has been supported by the report of the‘chemical examination vide EXP—12 which confirms the presence of spermatozoa on the vaginal slides of the prosecutrix as well as on the undergarments of the prosecutrix and the appellant. After having a closure look of the material availabie on record and$the impugned judgment, l am of the considered opinion that nothing has been elicited by the defence to discredit the testimony of the prosecutrix which is corroborated by the report of the chemical examiner Ex. P-12. There is no material on record to show as to why the appellant has been falsely implicated by the prosecutrix. The impugned judgment as such appears to be well founded and is not liable to be disturbed. (11) ln the result. the appeal sans merit and is therefore liable to be dismissed and it is dismissed as such. Sd/- l "’\- Pritinker Diwaker Judge Tumane