^ 1 ^S^^T. ...""Ml^?." ^^ THE HIGH COURT OF CHHATTISGARH XT BILASPUR E/- CRIMINAL APPEAL NOC>o3 QF 2008 a* APPELLANT (In Jail) Manhgu Das Bhatt, S/0 Shiv Nandan Bhatt, aged about 20 years, R/0 Village- Mohgaon Chowki Pandatarai, Tahsil- Pandariya, District- Kabirdham, (C.G.) ^ L RESPONDENT sH ^ y Vereus : State of Chhattisgarh, through District Magistrate, Kabirdham, District- Kabirdham,(C.G.) >o. CRIMINAL APPEAL UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE Jl._„ cr^i, '^•'^'•s^^h^f^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Mon. hflr. Justice Pritinker Diwaker) Criminal Appeal No. 503 of 2008 APPELLANT RESPONDENT VERSUS Manhgu Das Bhatt State of Madhya Pradesh ..•f'e^'sss 'sss Smt. C.K. Navrang counsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGIVIENT (15.02.2011) This appeal is directed against the judgment and order dated 7.5.2008 passed by the Additional Sessions Judge, Kabirdham, in Sessions Trial N6. 55/2007 cohvicting the accysed/appellant under Section 376 (1) of the Indian Penar Codeahd sentencing him to undergo rigorous imprisonment for seven years. 2. Case of the prosecution in brief is thatoh 25,6.2007 FIR Ex. P-7 was lodged by Boond Kunwar Bai (PW-6) - grand mother ofthe prosecutrix, alleging that the prosecutrix was residing with her for last three years on account of being mentally ill. |t is alleged that on 23.6.2007 the accused/appellant came to her house and sat in the courtyard. According to this witness, at that time she had gone to drive out the cattle and when she returned home, she found that the accused/appellant was not present at the place where he was sitting earlier. Then this witness went inside the house and saw the accused/appellant having sexual intercourse with the prosecutrix. On seeing this, she hittheaccused/appellantwith club and then he fled away. After investigation, challan was filed by the police on 5.7.2007 for the offence under Section 376 IPC. 3. So as to hold the accused/appellant guilfy, prosecution has examined 09 witnesses in support of it? case. Statement of ihe accused/appellant was also recorded undersection 313 ofthe 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. 5. Counsel for the accused/appellant submits that as on the report lodged by the aunt of the appellant the son of the complainant Boond Kunwar Bai (PW-6) was convicted in a case, a false case has been foisted against the accused/appellant. Secondly, she submits that the medical report of the prosecutrix also does not support the case of the prosecution and in these circumstances the appellant cannot be convicted under Section 376 IPC. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the accused/appellant has ravished the prosecutrix taking advantage of her mental illness. He submits that the complainant (PW-6) herself had seen the accused/appellant having sex with the prosecutrix, medical evidence not supporting the factum of rape would not make any substantial difference in the case of the prosecution. He submits that even the prosecutrix herself was brought beforethe Court below on 13.11.2007 for examination but she being incapacitated to do so, her examination could not take place. He submits that FSL reportalso confirms the presence of spermatozoa on the petticoat and vaginal slides of the prosecutrix. 7. Complainant Boond Kunwar Bai (PW-6) has stated in her evidence that the prosecutrix happens to be her grand-daughter. On the date of incident, when she had gone out to drive away the cattle, accused/appellant dragged the prosecutrix inside the room and when she returned home, she saw the accused/appellant committing sexual intercourse with her. According to this witness, since the prosecutrix was mentally disturbed, she was put on fetters. This witness has stated that when she hit the accused/appellant with the club, he fled away. Thereafter, this witness is saidto have narrated the incident to her daughter namely Shanti and also to her son-in- law. According to har, the prosecutrix was though provided treatment 'Wi ^SSS^^ for her mental illness, she could not recover. The prosecutrix, according to this witness, does not understand the things, takes food once in two-three days and if she was made to work forcefully, she used to hurl abuses. In paragraphs 10 and 11, this witness has admitted that her son Itwari and grand son Budu were implicated in some rape case by Kalyani about 5 years back. In the said case said Itwari and Budu were convicted and later on released on bail. This witness also admits that the prosecutrix of the said case namely Kalyani is related to the accused/appellant. Merely on the basis of such admission it cannot be presumed that she has implicated the accused/appellant in a false case. This witness has denied the false implication of the accused/appellant on account of previous dispute. According to this witness, the efforts were made to lodge the report on the same day, but for some reason it could not be done and ultimately it came to be lodged on 25.6.2007. Dr. Premlata Jangde (PW-1) who had medically examined the prosecutrix and given her report Ex. P-1 has stated in her evidence that the prosecutrix was of unsound mind. This witness had taken the permission of the guardian of the prosecutrix to medically examine her and on examination no injury was noticed by her on the person of the prosecutrix. Vipatram (PW-2) and Jitendra (PW-3) - the witnesses to seizure of underwear of the accused/appellant vide Ex. P-3 have not supported the case of the prosecution and have been declared hostile. Dr. R.K. Chandravanshi (PW-4) who medically examined the accused/appellant and g'ave his report Ex. P-4 has stated in his evidence that he was capable of performing sexual intercourse. Head Constable Rajendra Kashyap (PW-5) is the witness who had registered the FIR. Shanti Bai (PW-7) - the mother of the prosecutrix has stated in her evidence that as the prosecutrix was mentally ill, she was put on fetters. According to this witness, she was informed by Boond Kunwar Bai (PW-6) as to in what manner the prosecutrix was subjected to sexual intercourse by the accused/appellant. In cross examination also this witness stood firm to what she has stated in her examination-in-chief. Sub Inspector A.R. Sahu (PW-8) is the witness who had done part of the investigation. Sub Inspector ....nfS^-S-W -aft -t(- K.R. Sahu (PW-9) is the investigating officer who has supported the case ofthe prosecution. 8. After going through the material available on record particularly the statement of Boond Kunwar Bai (PW-6) who had seen the accused/appellant having sex with the prosecutrix, there appears no reason for this Court to doubt and discard her version. This apart, FSL report also confirms the presence of spermatozoa on the petticoat and vaginal slides of the prosecutrix which also fortifies the commission of rape on the prosecutrix. Such a heinous act where the accused/appellant taking advantage of the disturbed mentalstate of the prosecutrix made her the victim of his lust does not make him worthy of any sympathetic consideration. In these circumstances when there is sufficient evidence on record to prove the guilt of the accused/appellant, the stand of false implication taken by the counsel for the appellant does not impress this Court and accordingly the same is struck down. Findings of the Court below being well founded need no interi'erence from this Court. 9. Consequently, the appeal being devoid of any substance is liable to be dismissed. It is dismissed as such. Appellant is already fn jail and henceno order regarding surrender etc. is necessary. Sd/- Pritinker Diwaker •Pt' '*•?*> r^ »w