R-^ l8 Bi S is 'riis HIGH GGUSS O? OHHASriS&ABE A'T ,BI3-ASFUK(jSiHAT21ISGABH CSIHIHAL APFEA.I, - 7 6 Z/ 2805 AJPEELIAHT - (IN JAILX \!y>-'"""^iv... .v^^->^-' ^ X? Eam Sxngh Tadaw aged 51 years S/0 Ghait; Eam Yadaw VillaRe Bandb.amuda P.S.Gourella Sis-t;-Bilaspur(C.G.) ^w VSB.SVS EBSPOHDENTtr '^y' ^i-fcate of Ghhat'fcisgarh -tfarough. P.S. Sourela ..J)is1;-Bilaspur(0 .G.) telKraU,^A]:Ei£^JI£]:@ESEC'BIOI.!574C2') OEIffiIEAL PEOCSBUSE OOBE \ v^,®^' A.F-Jb HIGH COURT OF CHHATTISGtt AT BILASPUR APPELLANT (Hoh. Mr. JusticePritinker Dhwaker) Cnmjnal Appeal No.762 of 2008 Ram Singh Yadaw VERSUS RESPONDENTS Stete of Chhatti^arh. Shri Shrsnwan Chandel counsel for the appellant. Shri Ajeet Singh PL for the respondents/State. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (11.09.2009) This appeal is directed against the judgment dated 27.4.2005 passed by the Additional Sessions Judge, (FTC) Pendra Road, Distrtet Bilaspur, in Sesstons Trial No. 287/2004 convicting the accused/appellant under Secttons376 (1) and 506 (B) ofthe Indian Penal Codeandsentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 200 under srction 376 and to undergo rigorous imprisonment for two yeare and pay fine of Rs. 100 under section %)6-B of the Indian Penal Code, with default stipulations. 2. Case of the pros«;utionin brief is that on 8.6.2004 in the night when the prosecutrix (PW-4) was sleeping with her children, the accused/appellant who happens to be her elder brother in law of the came to her house at about 10-11 p.m., removed her cloths and committed rape on her. Immediately after the incident, prosecutrix narrated the entire story to Sukwariya Bai (PW-7) and thereafter in the eariy morning to her mother-in-law Phool Bai (PW-6) and husband Ramesh Kumar (PW-10). On 9.6.20)4 FIR (Ex. P-9) was lodged. On 10.6.2006 she was sent for medical examination to Government Hospital, Gaurela vide Ex. P-12 where Dr. Nalni Singh (PW-5) examined her and opined that no sign of resistance was '"'l'f: -iSSSii I-j' y ^ -2- I'illllt present on her body. Hymen was Tound to be otel ni|*.ired; two fingers easily entered her vagina and she was haUtual to sexual intercourse. Accused/appellant was also sent for medfoal examination to Primary Heatth Centre, Gaurela vide Ex. P-13 where Dr. N.S. Paikra (PW-1) examined him and opined that he was capable of performing sexpal intercourse. Vaginal slides were prepared and sent for che'mical examination vide Ex. P-17 and presence of spermatozoa was confirmed thereon. Cloths of the accused were also sent for chemteal examination on whteh too presence of semen was confirmed. After recoreRng the statements of the witnessesand completion of investigatlon the charge sheet was filed. 3. In order to prove the guilt of the accused/appeHant the prosecution has examlned as many as 10 witnesses. Statement of the accused/appellant was atso recorded under section 313 of the Code of Criminal Prwedure in which he has denied the charges levetled against hfm and pleaded his false imptlcation in the case. 4. After affording due opportunity of hearing to the parties, teamed Additionat Sessions Judge, has convicted and sentenced the aceusKl/appellant as mentioned above. Hence this appeal. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the vaccused/appellant submitted that the statement of the prosecutrix iswholly unreliable as she has not specifically stated about commission of foreible ^exual intercouree with her rather she has stated fhatshe was subjected to "Balatkar' bythe appellant. He further submitted that herstatement thatafter commission of the offence, there was bleeding from her private part is Talsified by the statement of Dr. Nalni Singh (RAf-5) who medicatly examined her as she has categorically stated that hymen ofthe prosecytrix was old ruptured and two fingers easily entered the jvagina and further that she-was hab'rtual to sexual intercourse, but -4- incident her husband had gone outsfdethe villageand shewas all alone in her house along wjth three cMldren. Accused/appellant lived in the house of her mother in law situated atsome distance. When she was asleep, at about 10-11 o'clock in the night, accused/appellant came to her house, got the door opened, demanded water, asked her to get near him, when she did not do that he himself approached tier, tried to catch hold of her hand, whenshe tried to escape he put the door on Istehes, when she cried he pressed her neck, threatened to fintsh her, made her liedown on the ground and thereafter committed rape "Ba/affcar'on her. She has further stated that as a resutt of ttie act of the accused, bleeding started profusely. Accused removed towel wom by him, undid the blouse wom by the prosecutrix. She has further stated that as everybody knows what "Kama" is and she shi«l in speaking it clearly. Thus whatthe prosecutrix has stated in herstatement appears to be absolutely natural and cannot, by any streteh of imaginatlon, be termed to be lightweight. This apart, it was nota camera trial that she could have been more explicft in giving her statement. In other words, the statement ofthe prosecutrix is setf explanatoryand there is noreason to discredit the same. 10. As r^ards the other Ihnb of the argument of the counsel for the appellant that Phool Bai (fW-6) has not supported the case of the prosecutjonand tumed hi^tile, it woutd be apposite to make 'rt clear that that though this wttness tias tumed hostile, she has stated in her cross examination that the prosecutrix had nanated the entire incident of rape toherin thenext morning. She hasalsostatedthat as the word "Ba/affca^' appeared to be difficult to pronounce, she did not use thisword earlier. Thus it is Ineorrect to say that the testimony of this witness has not supported the oase of theprosecution. In rape cases the fact that the victim was previously accustomed to sexual intercourse, is not a determinative question. On the contrary, the question which is required to be adjudicated is whether the -5- H'ainsss accused committed rape on-the-victim on the occasion comFrfained of. Even if it 1s hypothetically accepted that the victim had lo^ her virginity eartier, it did not and cannot in law give licence to any person to rape her. It is the ^CCUSK) who is on trial and not the victim Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual Intercourse to anyon&and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. 11. It is well settled that a 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 w'thoutcorroboration in material particulars. Shestands at a higher pedestai than an injured witness. In this case, the statement of the prosecutrix has been supported by the report of the chemical examiner vide Ex. P-17 which confirms the presence of spermatozoa on the vaginal slides of the prosecutrix and that of semen on the cloths of the accused/appellant. The prosecutrix has also stated in her statement that when she protested against the act of the appellant, he threatened to finish her. 12. After having a closure look of the material available on rword including the judgment under challenge, this Court is of the considered opinion that nothing has been elicited by defence to discredit the testimony of the prosecutrix. The judgment mnpugned as such appears tobe well founded and is not liableto bedistodged. 13. Consequently, theappeal being unmerited issure to meet the fate of dismissal and same !s recorded accordingly. _ ——-— Sd/- Pritinker Diwaker i L -^ ^ 3^ r...-. fe'" ft