HIGH COURT OF CHHATTIGRH SA BILASPUR Criminal Appeal No.390 of 2006 APPELLANT: Ramkumar @ Rama Sidar / RESPONDENT: Versus State of C.G. Post for pronouncement of iudqmen t on 21 5‘ Julv. 2009 ’//y Sa,_ -‘ // . .W ; Ramkumar @ Rama Sidar, S/o Jagadish Prasad Sidar, aged 25 years, R/o Timarlaga, P.S. Sarangarh, Distt. Raigarh, C.G. Versus State of C.G., Through the District Magistrate, Raigarh, C.G. {Crimina! appeal under Section 374 (2) of the Code of‘Criminal Procedure, 1973} HIGH COURT OF CHHATTISGARH, BILASPUR Crimina! A_Qpeal No.390 of 2006 APPELLANI: (In Custody) RESPONDENT: Present: Mr. Raj Kumar Gupta, counsel for the appellant. Mf.Rajendra Tripathi, Panel Lawyer for the State/respondent. Sinqle Bench: Hon’ble Mr. T.P. Sharma, J JUDGMENT ‘ (Delivered on 215‘ July, 2009) 1. This appeal is directed against the judgment‘of conviction and order of sentence dated 19-1—2006 passed by the 4‘“ Additional Sessions Judge (F.T.C.), Raigarh in Sessions Trial No.103/2005, whereby & whereunderi learned Additional SessionsrJudge after holding the accused/appellant VA guilty for commission of offence under Section 376 (2) (g) of the l.P.C., sentenced him to undergo rigorous imprisonment for ten years & pay fine of Rs.200/—, in default of payment of fine to further undergo rigorous imprisonment for one month. . Judgment of conviction & order of sentence are challenged on the ' ground that without any iota of evidence for convicting the appellant, the Court below has convicted & sentenced the appellant as aforementioned. . i have heard learned counsel for the parties and perused the impugned judgment as also the material available on record. . Case of the prosecution, in brief, is that on 3-11-2004 at about 12 noon the prosecutrix (PW-1) was present in her house at Village Timarlaga, Police Station Sarangarh, Distt. Raigarh, her husband & children were not present in the house, the accused came to the house of the prosecutrix and told that he has given torch & watch to her husband and he demanded the torch & watch back. When the prosecutrix told the @ used that he may come and take the sai articles whn her husband will om to the hoe‘ the acced wen away. The prosecutrix came t from her ho to se r child. Crt yard of co-ccused Nalal i ou use e he ou a nd s adjoinig to the court ard of the prosecutrix. ndl caed te n y Nala ll h rocutri to hi hou, when she refed to go, dlal ce in th psex s se us Nan am e crt c of a ged h ine ou yard and aught hold her hand nd drag er sid his ouse, insrted cloth in h mouth d threate her. Accused/ pellant Rama Sir prsent in the use o Nandal, h the accused threw h proseutrix n the floor d ot the accused committed sexu itercourse ith the prosecutx. At tat tie, her husband c a called hemby nae on wh s houted. heaft her huand cald Arjun Das, Sahde Kotwar other persons to whom the prosecutrix rraed the incident. She loged F..R. on the sae day ide x;P—1. H petticoat dear were zed ée P ng p e P. p de xP proscd as st or edical examinaon and she was ained b Dr. Jyoti Triphi PW v 2 T usmd lides f vana sme of the precutrix were take and sealedff’ g id z ed s Th a w e S (P n se e o comt p sa & izd d sp e na s prx confirme vide Ex.-5. tements of the witnsss re’recor der 6 P f ce ga c he te h t ca t s Ra i ns airh received the case on trafer or rial. c d e ce us us t h he e er an end ap da was e ho f l bot te c o an bh al n w ri h m ame nd m hic he s Terer, sb le v & nat d l m v E er & unerw sei \id Ex.-?._ One bale was seized from the rosecutrix vid Ex.-3 Spot map.was repared vi E.-4. The etrix w en f m ti exm y at (-21) ide EXP—3. he prosecutrix was acctoe to sexual ier pco unde er mid d se T ntcourse. Her ettiat & rwear we exane an aled. wo s o gil ar os n ii Sealed vainal sles were seied vide Ex.P-5. Broken pieces of bangles were seized vide Ex.P-6. Patwari prepar pot map vide Ex.P- 7. e accused/ppellant as also examined vid Ex.P-15A by Dr. R.L. idar W-14), who foud the accud capabl t mi sexual intercourse. Slides of serm of the appellant were eled see vie E.P-9. Seized articles were sent fr chemical aysis and presence o x O nal f erm over ptticoat, unden/vear & vagil slide of the osecutri was d P2 Sat ee weded un Section 11 of the Cr..C. and ater ompltion of investition, harge set was filed before the Judicial Magistra First Class, Sarangar who in urn committed the se to the Cour of Session, igarh from where learned 4'“ Additonal Sessio Judge (F.T.C.), Rga ns f t i rder o prov the gut of the accused, the prosecution has exaine . n o t e il md s many as 22 witnesses. Statement of the accused/appellant was ecordedunder Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false , a r @ implication. Another accused Nandlal has been declared absconding by he Court below. Learne counsel fr the ppellan ared that the prosecutrix is , d o at gu a ied ly, no injury was foun over her body and he case of rape i no suported by medical evience. Even accordin to the case of the prosecuion at th time of commission of th said fence, husband of the prosecutrix cae and call her, and en it me to t knowle of er husband, she has elled false ase o gang rape. The preset h lev c f n peant has not commtte an offenc of gang rape a he has been fall impticate in th crime i queion. ithout claiming ay defnce of nt, nt dwi e tha she was consentin party and the alleged act as committed n her invitatidn. . the , a Se On other hand learned counsel appearing on behlf of the tat/ resonent supprted the impugned udgent and gued t at h time of commissn of offenc, the prosecutrix alon was preset in he h son e was hel a s t n pos cl er f . pr ant he -d he lpssness; ad c a aed l o n ommitted gang rape on her forcefully. She is mrri ady and n orce as been use for te commission of offence, teeore, no injury was possle. Her vaginal slides & cthes wer ent for chemial anys and presence of sperm was confirme 0n the same vie E.P- 3 apll id y e nd sey d e n st W n e cosen evidence of the prosecutrix is sufficie for rang inferenc t g w o pd o jm ar tha te io e e n r ouse, the two accused pers took her forcefully, sh pless nd he was no i a ition to al psons or help The esent ppella & t coaccuse have taken the benefit of r hele f h d h hrf ib lo e s c alis d d X 25. n order to ppreciate th conttions o te arties, l hav examined the ttements of th witness. s is case f g rae d on accused is sonding. The prosecutrix (PW—1) is aged about 30 years, sh is a mried ady customed to xual itercorse. Se has depos in evidence th f dt a f mss of , he appella ame t her house nd deanded torc & wath allege to have been given by im to her hsband, when she told him that he may come and demand e rticles when he husband will come, he said tha th a r t the lleged articles were kept in a box and e forcel entere into the ose whereupon she cam out in the curtard and went to se h hu e oy e er child. She came back to he house. The appelnt & co-accud . l a e en f h p e sa e es . Thi a o ang p an e abc e ar l ac se nu h ed her at on the date o incien nd at the time o comiion offence t nt c o a m h c d t marr ad d t s t p d g t e e of m ed wh ca he dge h u a h fuly d r la se ¢ Nandlal caught hold of her hands, they put cloth in her mouth and orcefully took her to the house of Nandlal where they removed her clothes & underwear and the accused/appellant committed sexual intercourse with her, thereafter, co-accused Nandlal also committed sexual intercourse with her. At that time, her husband came and called her by name on which both the accused fled away from the spot. Firstly, her husband went to his house where rice was being cooked, but the prosecutrix was not present, thereafter, he saw the prosecutrix in the house of Nandlal, at that time, the prosecutrix was in naked position, her husband went back and came with cloth which the prosecutrix wore, her usband went to the village and called the persons to whom they arrated the incident. The prosecutrix lodged the report vide Ex.P-1. hegwas examined by the doctor and her petticoat & undenNear were eized’vidé ExrP-Z. Bangles were broken at the time of incident which ere seized and one bangle was seized from the prosecutrix vide Ex.P w - 4 3 3 . Spot map was‘prepared vide Ex.P-4. Budhkar (PW-7), husband of the prosecutrix, has deposed that when he came to his house and called his wife, his wife has not responded, he saw his wife in the room of Nandlal, at that time, the present accused was committing sexual intercourse with her on which he came out arid shouted that accused Rama & Nandlal were committing sexua intercourse with his wife, he called Arjun & Chowkidar Sahdevdas and by that time the present accused escaped from the spot, but co—accused andlal was moving around. He narrated the incident to Kotwar who dvised him to lodge report whereupon he along his wife went to the Police Station and lodged the report. His wife was examined by th doctor and bangles were seized. .Sahdev (PW-4) has deposed that Budhkar came and told him that the accused persons have committed rape with his wife, he requested for accompanying him to lodge report on which he went with him for lodgin report where clothes & bangles were seized. He has supported the documents Exs.P-2, P—3, P—5, P-6, spot map P-7 & P-8. .rjundas (PW—12) has also supported in brief the statement of Budhka A r (PW—7) and finally he was declared hostile by the prosecution. Ganpat (PW-15) has deposed that he heard that the accused persons have committed rape with the wife of Budhkar and co-accused Nandlal was f h n S s . l » N a e g his tenant, he has vacated the house after the commission of offence. Dr. R.L. Sidar (PW-14) has examined the accused on 14-2-2005 an found the accused capable of committing sexuai intercourse. Dr. Jyoti Tripathi (PW-21) who has examined the prosecutrix on 3-11- 2005 has deposed that the prosecutrix was accustomed to sexual intercourse and some stains were found over her petticoat & unden/vear which were seized and two slides of vaginal smear were also taken. Vaginal slides & clothes were sent for chemical analysis and presence of sperm over petticoat, underwear & slides of vaginal ,smear of the rosecutrix were confirmed vide EXP-25 which reveals that sexual intercourse has been committed on the prosecutrix. Thea present appellant has not taken specific defence or has not explained ‘any special circumstances in his examination under Section 313 of the Cr.P-..C. ‘3 A . Defence has cross-examined the prosecutrix in detail and has tried to show that the prosecutrix was having illicit relation with co-accused Nandlal, and Rama Sidar was not present at the time of incident. Defence has also tried to elicit that Rama Sidar has not committed rape on the prosecutrix which the prosecutrix has specifically denied. ln his examination & cross-examination she has specifically deposed that firstly Rama Sidar came to her and demanded watch & torch, thereafter‘ she came out of her house on which the accused/appellant also went away, but when she came back to her house which was adjoining to the house/ room of Nandlal, Nandlal caught hold of her hand and dragged her into his room where the accused/appellant was present, and both the persons have committed rape on her. Nothing has been suggested to show that the prosecutrix was consenting party for commission of sexual intercourse by the present accused/appellant. No other suggestion has been made to show that for any other reason or any animosity they have lodged false accusation. Even othenrvise, normally a woman especially a married woman would not take risk of lodgingany false accusation by taking the risk of her chastity and future without any compelling circumstances. Budhkar (PW-7), husband of the prosecutrix, has corroborated the statement of the prosecutrix. Sahdev (PW-4) has also materially supported the version of the prosecutrix. According to the evidence of d . p . . . £ ”M g.‘%"ky/Iy/I, “the prosecutrix & her husband, immediately after the incident they narrated the incident to the villagers and went to the Police Station which is at a distance of 20 kms. and lodged the report. Presence of sperm over petticoat, underwear and slides of vaginal smear of the prosecutrix was confirmed vide EXP—25. This shows that sexual intercourse has been committed on the prosecutrix. The prosecutrix has specifically deposed that the accused/appellant has forcefully committed rape on her. In this case, commission of'sexual intercourse on the prosecutrix is established by the evidence of the prosecutrix (PW—1), Budhkar (PW—7) & Sahdev (PW-4). 6 As regards the question of consent, the prosecutrix has specifically deposed that she has not consented for sexual intercourse. Even defence has not made any suggestion to show that the prosecutrix was consenting party‘. A special provision has been made in Section 114A of the lndian Evidence Act, 1872 namely, presumption as to absence of consent in certain prosecutions for rape which reads as follows: - “114A. Presumption as to absence of consent in certain prosecutions for rape—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub—section (2) of section 376 of the lndian Penal Code, 1860 (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the Court shall presume that she did not consent." .ln the present case, the prosecutrix has denied the factum of consent and no other suggestion has been made to show consent. Therefore, evidence of the prosecutrix is sufficient to draw inference that the rosecutrix was not consenting party. After appreciating the evidence available on record, the Court below has convicted the appellant under Section 376 (2) (g) of the l.P.C. ln the light of the evidence adduced on behalf of the prosecution and commission of offence by two persons, conviction of the appellant is based on clinching and reliable evidenc hich is sustainable under the law. s regards the question of sentence imposed upon the appellant, the Court below has rightly awarded sentence of ten years & fine of Rs;200/ which is the sentence provided for commission of offence under Section 376 (2 (g) ofthe l.P.C. “WI/fl ax . p e w .A — ) 20. For the foregong reasons, i do not find any illegality or irregularity in the judgment impugned. Consequently, the appeal is liable to be dismissed and it is hereby dismissed. Sd/~ ’ ‘T‘P. SHARMA " Judge i\i it are gt; A Soma i