ggaggm @ggggg BEFORE THE HON BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.A.No. Mfg 12009 APPELLANT (1N JAIL) Ramdhani Yadav‘ S/o. Laxman Yadav, aged about 35 years, R/o. Paturiyadand Para Jampani, Chowki Morga, P.S. Bango, Tahsil- Katgho'ra, District Korba (C.G.) §‘ v0“ W “‘$€X..¥\.;€§7 “a? ,QQM VERSUS The State of Chhattisgarh, through, I S.H.O., P.S. Bango. Tahsil— Katghora, District Korba (C.G.) CRIMINAL APPEAL UNDER SECTION 374i?) CF THE CODE we» a . “aw RESPONDENT ()F CRIMINAL PROCEDURE. u w " HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 454/2009 APPELLANT mdhani Yadav Ra Versus RESPONDENT State of Chhattisarh g Shri Ramakant Pandey counsel for the appellaht. Shri Vivek Sharma PL for the State RIMINAL APPEAL UNDER SECTION 374 11} OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (26.04.2u11) This appeal is directed against the judgment and order dated 23 3 2009 passed by Additional Sessmns Judge Katghora Dtsfnct Korba In Sessmns Trial No 39/2007 conwctlng the accused/appellant for the offences punishable under Sections 376 450 and 506 (Part-ll) IPC and sentencmg hlm to undergo rigorous Imprisonment for seven years With fine of Rs 2000I- u/s 376 rigorour imprisonment for five years With fine of Rs. 1000I- u/s 450 and rigorous imprisonment for one year u/s 506 (Part-ll) IPC plus default stipulations. 2. Facts of the case in brief are that on 18 4 2007 FR Ex Dl1-A was JVWwei mdged by the prosecutnx (PW 3) aged about 13 years at the relevant time alleging that on 1342007 when she was sleeping in her house l along wrth her younger brother and Sister accused/appellant came there l l and told her that the cow was eating up her mahua seeds On hearing this it is alleged that she went to drive away the cow and when she got back to her bed accused/appellant caught hold of her hand threw her on the cot and after gagging her mouth committed forCible sexual intercourse With her Based on this FIR offences under sections 450 376 342 and 506 (Part-ll) IPC were registered against the accused/appellant and after completion of investigation challan was filed by the police for the said e on 21 52007 However the trial Court framed the charges against him under Sections 450, 376, and 506 (Part—ll) IPC offenc r I -2— 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant. was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him a pleaded his innocence and false implition in the case. 4. ftr heing the parties, the trial Court has cnvicted and ntenced the accused/appellant as mentied above in paragraph No. of ts judgment. 1 hi 5. Counsel for the appellant submits that the appellant has been falsely implicated in the case and that there is delay of four days i lodging the FIR which has not been satisfactorly explained by the posecution. He subms that the evidence of the prosecutrix being very inconsistent ought not to have been made a basis for conviction of the accused/appellant. 6. On the other hand, counsel for the respondent/State supports the judment impugned and submits that the ersion of the prosecutrx appears to be fully trustworthy and the Court below was fully justified in r giving proper eightage to the sam while recording its nndings by the judgment impugned. 7. Prosecutrix (PW-3) has stated in her evidence that on the dat of incident when she was sleeping in her house along with her younger brother and sister, acsed/appellant made an entry thereto and told her th her mahua seeds were being eatn u by the ow. On hearing this, she n out to drive the cow away nd hen she again got back to her bed, accused/appellant caug'old of her hand a after removing her clothes committed forcible sexual intercourse with her. She h further stated that as it wa dark in the night, she was not aware whether e h o remove the cloths worn by him. According to her, at the time o commission of offence, when she tried to raise n alarm accusedappellant had pressed her mouth. After the incident, accused had put her under the threat that he would cut her into pieces in case she disclosed the incident to anyone. This witness has further stated that two- three days after the incident she had disclosed the incident to one nd ca Ae ar o se s on n i r it g v i w e e cu at e p c wet a w hth nd as s h ad als d f a , / '3- Jinamati (PW—1). She has further stated that on the date of incident her father had gone to some other village and though he returned on the next day, because of shame she did not inform him about the incident but she did informJinamati (PW-1) about the same and thereafter she along with Jinamati, her father and uncle went to police station Morga and lodged the report. ln cross examination, this witness has stated that her house was situated on the bank of the river and no houses were there near that of her. This witness has admitted that she did not take any medical treatment for the bleeding as a result of the commission of the offence. According to her, after coming to know about the'incident, her father had got annoyed and after consulting his elder brother namely Dineshwar Yadav (PW—7) a decision to lodge the report was taken. She has denied the suggestions put to her regarding any previous dispute etc. between her and the accused/appellant. Dr. Pushplata Singh (PW-9) who had medically examined the rosecutrix and given her report Ex. P—15 has stated in her evidence that she was not a well developed girl, her secondary characters were developing, reddishness was there in her private part, pubic hair and axillary hair were not present. hymen was ruptured and two nngers entered her vagina with difficulty. ln paragraph 2 of her deposition, this witness has stated that though sexual intercourse took place with the prosecutrix, she was not habitual to the same. ln cross examination, this witness has denied that the prosecutrix was a well developed girl and had crossed the age of puberty. She has clarified that the prosecutrix was at the initial stage of puberty. She has further stated that the prosecutrix was subjected to sexual intercourse about 7 days prior to her medical examination. Dr Anil Singh (PW—1 0) is the witness who had radiologically examined the prosecutrix and given his report Ex. P-16 opining that at the relevant time the prosecutrix was aged about 10-13 years with a margin of two years on either side. Dr. G.S. Jatra (PW-11) is the witness who had medically examined the accused/appellant and given his report Ex. P-17 opining that he was capable of performing sexual intercourse. Smt. Jinamati (PW-1) has stated in her evidence that on the date of incident the prosecutrix had informed her that she was subjected to rape by the accused/appellant. She has further stated that the age of the prosecutrix p ‘ ._¢,_ at the relevant time was 13 years and on account of rape she had noticed presence of blood on hr underwear. Ramsat (PW-2) — the brother of the prosecutrix has not stated anything speciftc. Dileshwar (PW-4) — the fathe of the prosecutrix h stated in his evidence that at the relevant time the age of the prosecutrix might be 13 years. He has stated that he iost s wife about 8 years prior thereto and that on the date of incident he had gone to village Kotal and when returned on the next day, the prosecutrix had informed him in the evening that the accused/appellant had subjected her t rape. He has stated that first of ail the prosecutrix had disclosed the incident to Jinamati and then in the evening to him. According to this witness, after coming to know about the incident he clled his elder brothe and then after consulting him, the decision to lodge the report was taken. Arjun Prasad Jaiswal (PW-5) is the Patwari who had prepared spot map Ex. P-3. Raj Kumar Panika (PW-6) is the witness to seizure of undenlvear of the accused/appellant made under Ex. P-4. Dineshwar Yadav (PW-7) — e uncle of the proSecutrix has stated that he was called by his brother and informed about the prosecutrix being raped by the accused/appellant and then the decision was taken to lodge the report. Sub inspector — G.L. Shrivastava (PW-8) is the investigating officer who has supported the case of the prosecution. Santosh Kindo (PW-12) is the constable who participated in the investigation. 8. Minute examination of the material available on record including the evidence of the witnesses particularly that of the minor prosecutrix shows that after informing the prosecutrix about the mahua seeds being eaten up by the cow when she went out to drive the cow away and when she got back to her bed, taking advantage of her helplessness, he made her the victim of his thirst for sex after pressing her mouth and even after the incident he put her under threat to cut herinto pieces in case she made a disclosure of the incident to anyone. Of course, there is delay of four days in lodging the report but the same has been explained by the prosecutrix that as her father was not in the house and when he returned on the next day she could not immediately disclose the same to him because of shame and after she made a disclosure to him her father called his brother and after consultation with him the matter was reported to the e r as hi o a r th police‘ To decide a case involving rape, the first and foremost thing to be seen is the statement of the prosecutrix and if the same appears to be trustworthy, the other technical lacunae such as delay in lodging the report etc. would not be fatal to the case of the prosecution. In the case in hand, the prosecutrix though minor on the date of incident, has been throughout very consistent while stating the things transpired and which gets full support from the medical evidence and that being so the delay in lodging the FIR should not come in the way to decide the case on merit. The act of the appellant in committing forcible sexual intercourse with the minor prosecutrix taking advantage of her helplessness because of the absence of any elderly member at home, does not call for any lenient consideration. 9. Accordingly, the judgment of the trial Court being based on the evidence adduced by the prosecution is flawless and warrants no interference therewith. Appeal thus goes and the judgment impugned remains as it is. As the accused/appellant is already in jail, no order regarding his surrender etc. is necessary. 10. Dismissal is the net result of this appeal. Sdl- ‘ Prit'mker Diwake' Judge /