^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR.. J Criminal Appeal No. 427 of 2000 IN"-f: Appellants Ganeshram Vs. Respondent The State of Chhattisgarh. POSTFORPRONOUNCEMENTOF JUDGMENT Sd/- JUDGE ^-9-2009 Sd/- R.N. Chandrakar Judge Appellant: HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 427 of 2000 Ganeshram s/o. Dakhalsai Ram, aged about 26 years, r/o. village Burha Bagicha, Police Station - Rajpur, District Sarguja (CG). Versus Respondent: The State of Madhya Pradesh, through Police Station, S.T. Welfare, Ambikapur (CG). (Criminal appeal u/S 374 ofthe Code of Criminal Procedure 1973) SB: Hon'ble Shri R.N.Chandrakar, J. Present: Mr. N.K. Chaterjee, counsel for the appellant. Mr. Sameer Behar, Panel Lawyer for the State. JUDGMENT (Delivered on this °) AU -day of September, 2009) 1. This appeal is directed against the judgment of conviction and order of sentence dated 29-1-2000 passed by Special Judge, Sarguja, in Special Case No.89 of 1998 wherebythe accused/appellant has been convicted for the offence punishable under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 2. The case of the prosecution, in brief, is that on 1-5-1997 at 6.00 p.m. when the prosecutrix was returning to her hpuse after doing labour work, the accused/appellant caught hold the prosecutrix from the back side and pushing on the ground, committed rape on her under Tamarind Tree near the house of Juthan. The prosecutrix made outcry. On hearing the outcry, the daughter of prosecutrix namely Sitapati (PW/4) rushed to the spot. The accused/appellant slapped the daughter of prosecutrix and threatened them. On the next day, the prosecutrixalong with her brother [^ Lal Bihari (PW/5) went to the Police Station Rajpur, District Sarguja and lodged the report where the FIR was registered at zero under Section 376 of the IPC and under Section 3 (i)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Subsequently the FIR was sent toAJK Police Station, Ambikapur for registration and further investigation and thereafter, the matterwas investigated. 3. After completing the investigation, charge sheet was filed against the accused/appellant in the couri: of Special Judge, who framed the charge under Section 376 of the IPC. The accused/appellant abjured the guilt. After recording the evidence of witnesses, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him and pleaded his innocence and false implication. After due trial, the learned Special Judge, convicted and sentenced the accused/appellant as mentioned in para 1 of thejudgment. 4. Learned counsel appearing for the appellant submits that after narrating the story to the village Sarpanch report was lodged against the accused. Therefore, the statement of the prosecutrix Deomuniya Bai (PW/3) is not believable. Subsequently, the statementof the prosecutrix (PW/3) does not support the prosecution case. Learned courisel further stated that the prosecutrix Deomuniya Bai also stated in her statement in para2 that accused snatched. a 'Potari' of rice and Rs.120/- from her but nothing was recovered from the spot. Thus, the statement of the prosecutrix does not support the prosecution story. The learned Special Judge failed to consider the statementof PW/5 Lalbihari, the brother of the prosecutrix who does not support the prosecution story and in medical report also no definite opinion was given regarding sexual intercourse. It is further submitted that the prosecution has not examined the slides of the prosecutrix for giving definite opinion and the Special Judge did not ^^ • "'•^ ^^ %^/ ^.... 1 evaluate the evidence in accordance with law. Therefore, considering all the facts and circumstances of the case, the judgment of convicfion and order of sentence passed by the triat Court be set aside and the accused/appellant be acquitted ofthe charge. 5. Percontra, learned counsel appearing for the respondent/State argued the matter in support ofthe impugned judgment ofthe lower Court. 6. Having heard learned counsel for the parties, 1 have perused the records of the Special Court and also the impugned judgment. 7. In order to prove the guilt against the accused/appellant, the prosecution examined six witnesses. 8. PW/3 Deomuniya Bai, the prosecutrix stated in her deposition that on the date of incident, she had gone to do the work ofwhite wash in the house of Banshu on daily wage basis and she wasreturning to her house in the eveningat 6.00 p.m.. The accused/appellant who was hidden near the Tamarind tree on the way caught hold and pushed her on the ground and committed rape on her despite her protest. She made outcry and on hearing the outcry her daughter namely Sitapati (PW/4) rushed to the spot. The accused appellant slapped Sitapati and threatened them to do whatever they want. She further stated that the accused/appellant also snatched the rice tide with her saree as also Rs.120/- from her. After committing the accused/appellant fled away from the spot. The incident was reported to village Sarpanchand the report was lodged at Police Station, Rajpur, on the next day. The FIR (Ex.P/1) was read over to the witness to which she admitted. She further admitted that after lodging the report she was sent to Ambikapur Hospital for medical examinationand the Police recorded her statement. The witness was cross examined at length but she remained consistent and unrebutted. She even denied the suggestion given by the defence that she was a consenting party and ^- she neither protested nor made outcry. The witness herself stated that on hearing her outcry, her daughter Sitapati came to the spot. 9. PW/4 Sitapati, daughter of the prosecutrix corroborated the version of the prosecutrix and stated that on the date of incident, hearing the outcry of her mother, she rushed near the Tamarind tree whereshe saw that the accused/appellant was committing rape on her mother. Seeing her, the accused/appellant left her mother and slapped her twice. Thereafter, the accused/appellant left the place of occurrence and she along with her mother went to the village Sarpanch and narrated the story. She further stated that the report of the incident was lodged at Police Station, Rajpur whereupon the Police cameto the village and recorded her statement.In her crossexamination she remained consistent and unrebutted and deniedthesuggestionsgivenby the defence side. On the contrary, she admitted thatthe accused/appellant wanted to keep her motheras hiswife for which her mother was not ready. 10. PW/6 - Dr. Pratibha Rajool Jain conducted medical examination of the prosecutrix and found one abrasion in the size of % cm x 1/4cm on her left cheek. She stated that the injury was simple in nature and caused within 24 - 48 hours from her examjnation. She prepared two slides of the vaginal fluid of the prosecutrix and advised for chemical and microscopic examination. She gave her report Ex.P/7 and opined that the prosecutrix was habitual to sexual intercourse and no definite opinion could be given regarding commission of rape. In her cross examination she admitted that if a woman is habitual to sexual intercourse, it is not necessary thatshe would complain aboutpaininhervagina.Thus, the prosecution story is also supported by the testimony ofthis witness. 11. PW/1 B. Minj, Station House Officer, Rajpur, stated in his deposition that he registered the FIR (Ex.P/1) against the accused/appellant u/S/ 376 of the IPC and un/S. 3 (i)(xii) of the Act on the basis of oral report given by 5 ^: the prosecutrix on 2-5-1999 and sent her to Ambikapur Hospital for medical examination vide Ex.P/2. He remained consistent and unrebutted in his cross examination. 12. PW/2 - K.R. Kamre the D.S.P. AJK Police Station, Ambikapur, stated in his deposition that he investigated the matter, recorded the statements of the witnesses, prepared spot map and sent the slides of the prosecutrix to FSL for chemical examination. In his cross examination, the witness remained consistent and unrebutted. 13. PW/5 Lal Bihar, the brother of the prosecutrix corroborated the testimony of the prosecutrix and stated that he was narrated the whole story by his sister. This witness was cross examined at length but the defence was unable to bring out any fact contrary to the evidenceof prosecutrix or her daughter (PW/4) which creates doubt on the testimony of prosecutrix. 14. On re-appraisalof the evidenceand on going through the record, it is clear that the statements of the witnesses are consistent. So far as the offence u/S. 376 of the IPC is concerned, the accused/appellant can be convicted on the basis of sole testimony of the prosecutrix and her testimony is not required to be corroborated by any eye-witness. More over, in the instant case, the prosecutrix is a married woman whose testimony is also supported by her minor daughter (PW/4) who saw the accused appellant on the spot committing rape on her mother. "It is also clear from the testimony of PW/4 that she was slapped twice by the accused/appellant on the spot when she objected to the act of theaccused/appellant. The testimony of the prosecutrix is also supported by her brother (PW/5), PW/1, B. Minj who registered the FIR Ex.P/1 and by PW/2 K.R. Kamre, the Investigating Officer. In cross examination of these witnesses nothing was pointed out by the defence side on the basis ofwhich the testimony of the prosecutrix can be disbelieved ordiscarded, 6 Raju raju 15. For the foregoing reasons, l am of the considered opinion that the judgment ofthe trial Court does not sufferfrom any illegality or irregularity warranting interference in appeal. The court below has rightly placed reliance on the testimonies of the witnesses while convicting and sentencing the accused/appellant as mentioned above. 16. Accordingly, the appeal being devoid of substance, is liable to be dismissed and it is hereby dismissed. The accused, who is on bail, shall surrenderforthwithto serve out the remaining sentence. Sd/- R.N. Chandrakar Judge