‘ CF0000060438 ! CGURT OF JUDIO‘J‘TURE KT J£&BALPUR. m TI-E HIGH CRIMINAL wram No.\3§% OE 199% _ ‘ APPEAL UNDmR a REs§0NDENT a .2” / $ SECI‘ION 37g $2) OF THE CODE OF Cxlll‘ENAL PROCEDUkE Byasram Yadav, son OE late Shri Kannndram Yadav, aged about 36 years, resident .ofJamnip‘ali, Ponce station narri, Tamil mrba, Disttmmspma, “VIERSus. State o£ Maehya préaesh through station House Officer, Police Station Barri. mat. EIWPUR (MP). ‘o‘uc. a I I HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Jusiice Pritinker Diwaker Criminal Appeal No. 1358/1996 v‘ £ APPELlrANT " Byasram Yadav J Versus i RESPOIQVDENT State of Madhya Pradesh [ ; P.R. Ms. Sharmila Bhave, Sr. Singhai Advocate adVocate for the appellant. appears on behalf of Shri ‘ Smt. Smlta Ghal PL for the State. CRIMINAE‘KPPEAL UNDER SECTION 374 (1! OF THE CODE OF CRIMINAL ‘ - PROCEDURE JUDGMENT ‘ ‘ (07.04.2011) 14.8.1996 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 12/1991 convicting the accused/appellant for the offence panlshable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 10,000 in default 2. Facts of the case in brief are that on 5.9.1989 at about 4.55 p.m. FIR ‘Ex. P-2 was lodged by Phul Bai’(PW-2) to the effect that on that day When she had gone to her workplace along with her younger sister (PW-3 -the prosecutrix herein), at about 12.10 afternoon, the appellant who was Y A > working as driver in NTPC, took her and her sister to his %use on the pretext of taking food. Thereafter, it is alleged that she was turned out of his house by him and after bolting the front door, he entered his house from the back door and put the door on latches. Sometime thereafter hearing the cries of-her sister when she banged at the door, the appellant ‘t‘ opened the same and then she saw her sister lying unconscious on account 9f rape being committed by‘the accused/appellant. Based on this FIR, offence u/s 376 IPC was registered against him, the prosecutrix was sent for medical examination on 6.9.1989 vide Ex. P-6 and after completion of investigation, chal/an was filed by the police on 2.12.1989 for the said offence. -1... 3. So as to hold the accused/appellant guilty, prosecution has exgmined O6 witnesses in support of its ease. Statement of the accjused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in.which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. 3 counsel for the appellant submits that present is a case where the statements of Phul Bai (PW-2) and the prosecutrix (PW-3) are wholly unreliable for the reason that while deposing in the Court Phul Bai has given entirely a different story if-compared to the FIR lodged by her and the case diary statement. She submits that it is alleged by Phul Bai (PW- 2) that she and the prosecutrix had gone to the house of the accused/appellant where the prosecutrix was subjected to rape by him whereas according to her Court statement she got the information from someone that prosecutrix was seen by him drinking water in the house of the accused/appellant. According to the counsel for the appellant, there are material contradictions in the statement of Phul Bai. ln respect of the statement of the prosecutrix (PW-3), it has been argued by the counsel for the appellant that in the Court she has not supported the case of the prosecution as she has not stated anywhere that she was subjected to rape by the accused/appellant. According to the jéounsel ,for the accused/appellant, Phul Bai (PW-2) has stated in her evidence that the prosecutrix had disclosed the incident of rape to her about a week thereafter. She submits that case diary statement of the prosecutrix was recorded on 30.9.1989 and this inordinate delay in doing so makes it clear that the accused/appellant has been falsely implicated in this case. 6. f On the other hand counsel for the'respondent/State supports the judgment impugned and submits that medical report of the prosecutrix Ex. P-6 is positive and number of internal and external injuries were found on her person; She submits that the prosecutrix has categorically stated that she was taken by the appellant inside his house and after .g ctwx, r gagging her mouth with a piece of cloth when he mounted on her, she i -3_ ot , narrate the further became Lmconscious and therefore she could n ‘ { incident in the house or rape. of She the submits accused/appeHant that the prosecutrix in an unconscious was found by state the police She submits diary statement t‘hat as prosecutrix of the prosecutrix and Phul was Bai recorded are rustic about viiiagers, twenty that five the case days after the§ incident whereas their court statements were recorded about seven years after the incident, minor contradictions in their statements if any are bound to be there and the same have to be ignored. ’i 7. Prbsecutrix (PW—3) has stated in her evidence that she knew the peiia’nt who was the resident of village Lotlota and working in some during officeAat lunch hours Jamnipali. asshe was She feeling has stated thirsty, that she on had the gor'fe‘ date to of the incident house ' water. On her demand, the t accused/ap of the accused/appellant for drinking of water and when she asked for d, dragged her inside i accused/appellant gave her a glass ‘éanother his house, glass bolted of water, the door, he made caught her hold lie on of her a cot, han mounted on her and on an alarm being raised by her, he gagged her mouth with a piece of cloth. question put to the prosecutrix as to what else was done by nd mounting on Replying to a the accused/appellant after making her lie on the cot a her, she has stated that except gagging her mouth with a piece of cloth s was confronted with her e has made a mention that after d her sari up to the waist; she has stated that this statement is true. Thereafter, astquestion was put to her whether the appellant had committed rape on her, she expressed r mouth, she became unconscious and did not know as to e regained consciousness he had not done anything. When this witnes case diary statement Ex. P—3 where sh throwing her on cot, the appellant had upturne l r her ignorance. Thereafter, she has stated that as a piece of cloth was inserted in he ‘ what happened thereafter. According to her, sh .injthe hospital and was notaygare as to who shifted her to the hospital or whether the accused had committed sexual intercourse with her or not. She has stated that'in the hospital itself her clothes were seized by the ly‘ members. She has further stated ln paragraph 8 of her turning there from she police, she was medically examined and after re narrated theentire incident to her fami that ‘Phul Bai (PW-2) is 4-5 years elder to her. deposition, she has stated that she knew the accused/appellant as she .,.L,_ had seer§ him working in the office but she denied the fact that she used to talk td him. She has stated that on the date of incident she and her sister were working at different places. In paragraph 10 she hasqstated that the iappeiiant i threw her t on the cot and when her hand was caught hold of By him, she started crying on which a‘small towel was inserted in her mouth. She is stated to have regained consciousness in the hospital. She has i further claritied that she had not informed the police about the incident; because no enquiry was made by it and that after about one month when the police came to make an enquiry, she disclosed the entire ¢ incident. “F Phul ABai (PW—2) — the sister of the prosecutrix has stated in her evidence that she knew the accused/appellant who was resident of village Lotlota which falls after Jamnipali. She has stated that on the date of incident she and her sister had gone to Jamnipali to work as labourer. incident she did not do that, she started a search for her. Meanwhile, according to her, she was informed by one boy of Jamnipali that he had seen the prosecutrix in the house of the accused/appellant asking for water; The house of the accused/appellant is stated to be 100 meters awayifrom the workplace of this witness. According to this witness, when she reached the house of the accused/appellant, she heard the cries of the prosecutrix, on which she asked the appellant to open the door but he 3 refused to do that. Thereafter, she went to police statign Darri and lodged the report stating that the accused/appellant had made the prosecutrix captive in his house and in spite of her request he did not open the door. ,Then, according to her, one policeman had accompanied her to the house of the accused/appellant, made the accused/appellant open the door and after taking the prosecutrix out shifted her to the hospital where she had informed her that on the pretext of giving water, the accused/appellant had dragged her inside the house, threw on a cot, mounted on her and when she raised, an alarm, a piece of cloth was insertedin her mouth. ln paragraph 11 of her deposition, she has stated that while lodging the FIR she had informed the police that on the date of incident she and her sister (prosecutrix) were working at different places; According usually in lunch to her, hours she and her sister her sister would used come to work to her at but different as onthe places date and of g % m v—‘g‘g that whe:n the prosecutrix did not come tc her duringvlunch hours she had made a éearch for her and one boy had told her that the prosecutrix was s’een by him in the house of the accused/appeuant asking for water; that the house of the accused/appellant was tittle far from her work ptace and that even after being requested by her, the accused/appellant had not opened the door but if the same is not mentioned in the same, she could not tell the reason for that. In paragraph 12 of her evidence she has stated hat when she was near the’house of the accused/appellant, scream of the prosecutrix were heard by her and about a week after the inciden,“she was informd by her that the accused/appellant had dragge her inside his ouse, made her lie on a .cot, mounted on her and inserte a piece of cloth in her mouth. On being confronted with her case dia atemt Ex. D—1 she hasstated in paragraphs T3 to 16 of her deposiion that certain things were not disclosed to the police and that she is not aware as how they av been mentioned therein. Sh has sated hat she saw the prosecutrix in the house of the accused/appellant i an nconscious state and before that she had heard her soreams and she had lodged the report about the prosecutrix eing subjected to rape- re e y the accused/appellant on the basis of assumption. She has stated that after maining in the hospital for a day, the prosecutrix cam back to her villag and a week thereafter she informed her parents that she was subjeted to rape by the accused/appellnt. Mahadev Sahu (PW-1) - the witness of house Panchnama has not supported the case of the prosecution and has beep, declared hostile. Mewalal (PW—4) — the witness to the Ex. P-4 and P-5 has not supported aything specitic. Dr. (Smt.) N.D. Ram (PW-5) who h medically examined the prosecutrix and given her report Ex. P-6 has stated that there a tear i vaginal region and blood was oozing fm the same, hr hymen was torn,‘ she ws omplaining severe pain, white discharge was und in her private part hich accordin to er was sperm of man. She opined that the proecutrix was subjected to sexal intercourse for the frst time within 8-10 ours of xamitio and she was not habitual to the same. This witness has denied that she was pressurized by anyone to give the positive report that the prosecutrix was subjected to forcible sexual intercourse by someone and that at the time of examination she 6 @ t s t‘ e d h d ry sten t he e t t n u b b e c a n ad ws n her ro e a c fo W g h s u i h enan hm v _6_ was notéhaving her period. She has further stated that the injuries on the breast end private part of'the prosecutrix were due to her subjection to rape ahd they cannot be self inflicted. B. Panna (PW-6) Eis the investigating officer who has stated in his evidence that on the report of Phul Bai he had registered the FIR Ex. P-2_ and immediately thereafter when he went to the house of the appellant, he found the prosecutrix lying onEher bed in unconscious state and then she was shifted to NTPC hospital'for medical examination. He has however admitted that case diary statement of the prosecutrix was recorded 25 days after the incident because {1e was busy in some other work. He has further admitted the fact that vaginal slides and clothes of the prosecutrix were not sent to the Forensic Science Laboratory because he was busy in some other work. 8. Minute examination of the evidence of the prosecutrix (PW-3) and her sister Phul Bai (PW-2) makes it Clear that onthe date of incident the appellant had forcibly taken the prosecutrix inside his house, threw her on “the cot and committed rape on her. Though the prosecutrixrcould not state as to the manner in which she was subjected to rape by the accused/appellant, she has categorically stated that the appellant caught hold of her hand, threw her on the cot, mounted on her but then as she. became unconscious, does not know as to What had happened thereafter. Incident of rape has been supported by Phul Bai (PW-2) who had seen the prosecutrix in unconscious condition and stated that when she came to the. house of the appellant along with police, he and the prosecutrix were found in his room. As the prosecutrix més unconscious, after being shifted to the hospital she was examined by the doctor who found number of internal and external injuries on her person. The doctor has also stated that she was subjected to forcible sexual intercourse. This Ocurt does not find any force in'the argument of the counsel for the appellant that as the prosecutrix (PW—3) and her sister Phul Bai (PW-2) hav‘e not deposed anything¥¥tr3garding rape, the appellant cannot be convicted for the same. Initial part of the story has been'supported by the prosecutrix and her sister Phul Bai and thereafter the circumstances make it clear that she was subjected to rape by the accused/appellant. This Court is refraining here to pass any comment on the attitude of the police. It would sutitce to say that the statement of the prosecutrix was A . \ ecorded 25 days after the InCIdent slides were not sent for chemical examination and statements of the parents of the prosecutnx have not been recorded Offence of rape Is further proved by the statement of Phul Bat (PW 2‘) who has stated that the prosecutnx was walking slowly There Is no ewdence on record to show as to why the prosecutnx would falsely implicate the accused/appellant. t 9. Thus In View of the aforesaid discussmn this Coun Is of the /é / t conSldered opinion that the prosecuhon has succeeded In provmg Its case beyond reasonable doubt and therefore the findings of conVIctIon recorded by the Court below are not faulted With In any manner whatsoever. Accordingly, the conVIctIon of the appellant Is maintained 10. At this stage counsel for the appellant submits that thEincident had taken place about 21 years back and by now the appellant must have A l attained the age of about 56 years, the sentence imposed on him may be reduced to 8 months that is the period already spent by him in jail The said submISSIon made by the counsel for the appellant being quite unreasonable Is hereby turned down. However, keeping In View the facts and circumstances of the case, the sentence imposed on the appellant is reduced to rigorous Imprisonment for 7 years from that of 10 years as has been done by the Court below The appellant Is on bail He be sent to jail forthwith to undergo remaining part of the sentence. 11. Consequently, the appeal succeeds in part to the extent indicated Hi tr/ iii/* above. 2 : st Sd/_ s Pntlnker Diwaker Judge /