-<L- ^^^ ^ AppeUanf (Tnjail) Responden* HIGH COURT OF CHHATO.SP.APU .. »„,^^ Cri. Appeal No. 983/2007 Bholaram VERSUS State ofC.G. £2stforpronouncemenfnf J^^^t on (/W/8/20Q9. Sd/- T.P. Sharma Judge (S HIGH COURT OF CHHATTISGARH AT BILASPUR Cri. Appeal No. 983/2007 Appellant Bholaram, S/o. Lal Baliadur, aged-48 Kniain yrs. R/o.Near Station, Bhilai-3, Bhilai, Distt. -Durg (C.G.) VERSUS Respoadent State of C.G. through -P.S. - G.R.P.Bhilai -Durg -C.G. Meaao of appeal under section 374 of Cr&. Pro. Code. (SB :Hon>ble Mr.T.P. Sharina J.) Present:-. Smt . Savita Tiwari, Advocate for the Appellant. Shri Sushil Dubey, G.A. for the State/respondent. JUDGBMENT (Passedon (j^/8/2009) 1, This criminal appeal is directed against fhe judgnient of conviction aad order of sentence dated 5/9/07 passed by fhe Sessions Judge, Durg ia Sessions Trial No. 433/91 whereby and where under after holdmg the appeUant guUt for the offence of gaag rape convicted fhe appeUaat under Section 376 (2) (G) aad 450 offhe Indiaa Penal Code (ia short the Code) aad sentenced Rigors unprisonpient for 10 years, wifh Piae of Rs. 1000/- ia default of payinent of fiiie additional Rigorous iiaprisoiunent for 6 inonfhs aiid Rigorous miprisoninent for 3 years wifh titie of Rs. 500/- in default of payment of fine additional Rigorous imprisonment for 3 inonflis, 2. The judgment of conviction and order of sentence is chaUenged by fhe appeUaat on the ground that witiiout any iota of evidence of coininission of gaag rape by fhe appeUaat learaed Sessions Judge has convicted aad sentenced fhe appeUaiit aforementioned and thereby committed an itlegality, ?- r^ ^ 3. Prosecution case ia brief :- prosecutnx PW5 aged about 24 years was residiag ia a hut near Purena Station District Durg. On ftie date of incident mtervening night of 26th and 27th ofJune 1991 at about 9 P.M., she was cookiag her nieal, appeUant Bholaram was residiag ia front of house of fhe prosecutrix. Accused asked fhe prosecutnx whettier she is cookiag m.eals also for hita on her refusal accused went away» After takiag her meal prosecutrix closed fhe door aii went for sleep.. At about 11 P.M, some person knocked her door but she did not open fhe door. She was under fear. She also cried for help theu after brakmg fhe door. 3 persons entered mto her house aad caught hold her neck an.d snatched her clofhs, Accused Bholaram committed mtercourse wifh her. He coixiiaitted iatercourse with her twicely. Anofher co-accused Shambhu also committed iatereourse wifh her twicely anofher accused also committed rape wifh her. Bofh the accused agabi committed carnal mtercourse wifh her agamst tiie order of nature by mserting male orgaa in the aaus of prosecutrix, She beconie unconscious, agaia fbey coniinitted initercourse, They fhireatened her when tiiey wiU. Ued away froni fhe house of fhe proseuctrix tiben she went to Uie house of Kirtaabai she narrated the iacident. Second day mommg Bholaram came to her house aad repaired tlie broken door and took her to tiie doctor where doctor mjected her. Proseciitrix was not ia position to walk properly. She was suffering from pain in her private part. aad aaus. On 30/6/91 she lodged flie report vide Ex. P-5. One San and Rs. 10/- were taken by accused Ubey from fhe house of prosecutrix was recovered Vide Ex, P-9. Blaaket and jute bag used at fhe time of commission of tlie offence was recovered froni tlie house of fhe prosecutrix vide Ex. P- 10. She was sent for medicmal examinatioa by PW-2 Dr/Smt N. 7 ^t Shancia. On 2/7/91 on her examio.atioii one contusion over right fhigh of 3" x 2" one contmue 3" x T upon her left breast aad scratches over bofh the calf Biuscles were found, Tendemess was present over her private part and aaus, Two slides ofvaginal smears were taken. She has also exaaiuied one blanket aad jiite bag Vide Ex, P-5. Accused Ubey aiid shambhu were examined by Dr. L.D. Dhote Vide Ex, P-1 aad P-2, Spot niap was prepared vide Ex, P-3. 4. Stateineuts of fhe wituesses were recorded under Section 161 of the Code ofCriminal Procedure, 1973, After completion offhe iavestigation charge sheet was filed before fhe Judicial Magistrate First Class, Durg who in tum committed the case to fhe Court of Sessions, Diirg. After commission of fhe offence accused Bholaram absconded from the ViUage. Two accused were tded aiid convicted under Section 376 (2) (G), 450, 377 & 380 ofthe Indiaa Penal Code vide judgment dated 22/3/93. The present accused was arrested ui the year 2006. 5. In order to prove ttie guilt of Uie accused prosecution examnied 5 witaesses, Statenient ofthe accused was recorded under Section 313 of the Code of Crimmal Procedure, 1973. He denied the circumstaiices appearing agamst him, iruiocency aad false iaipUcation is claimed. After affordiag aii opportunity of hearing to fhe parties leanied Sessions Judge convicted aad sentenced fhe appeUaat aforexnentioned for fhe offence punishable under Sections 376 (2) (G) and 450 of the Indiaa Penal Code. 6. Smt. Savita Tiwad, Advocate for fhe AppeUaat aad Shri Sushil Dubey, Additional PabUc Prosecutor are heard. 7. Judgment impugned aad record ofcourts below perused, -«^sss?a^». -^ ^^&. '^.•. :^.'^-^ y ,^: &. ^' ^ ® 8. Leaaed counsel for fhe appeUaat vehemently argued that present appellaiit has not coniinitted any offence of gaiig rape wifh prosecutrix | prosecutrix was iaterested to inariy wifh appellaat on refusal by appellatit she has falsely impUcated, 9, Learaed counsel for fhe respondent/State supported fhe judgxnent aad argued that presence of appellant at fhe time of commission of fhe offence and even coinniission of iatercourse by fhe appeUaiit is not disputed by fhe appeUant, Prosecutrix has spectfically deposed that appellan.t aad two ofher persons have coiaraitted forcefuUy iatercourse ) wifh her aad prosecution has proved fhe case behiad all shadow of doubt 10. In order to appreciate the contention offhe pardes, I have examuied fhe evidence adduced on behalf of fhe prosecution. PW5 prosecutrix has deposed ia her evidence fhat on fhe date of iacident she was residiiig alone ia her hut (after constructmg teiaporary hut). At about 8-9 P,M. appeUant caaie near her house aad spoke about fhe cookiag offhe ineal afler some thne she went inside for sleep at about 10 P.M. she heard ^ some shout fhie accused Bholaram along with Shambhbu aad Ubey broke her door aad entered into her hut, Accused Bholaram removed her cloths and forcefiiUy lay down her aiid committed mtercourse. Other accused also coiainitted intercourse. Accused persons fled away froin fhe house of tbe prosecutrix. She was not m position to watk aay how ' she went to fhe house offhe Kirtaabai where she narrated fhe iacident. She has not lodged fhe First Information Report prompfly, She was under fhreat lastly she lodged the report vide Ex. P-15, blaaket aad Jute bag was recovered vide Ex. P-10. She was sent for medicmal exaimnation. She has also deposed that accused has also committed A /- ^^ iatercourse agam.st the order ofnature. PW-2 Dr. Smt N. Sharma has deposed fhat on 2/7/91 she has examiaed the prosecutrix. She was coniplamiag pam over her body. SweILmg over right calf niuscles, Swelliag over right breast aiid scratches over right breast were found vide Ex. P-4. Tendemess were present over her private part aad aaus. She has explaiaed ia Para -4 of her stateinent fhat sweUiag was in fonn of contusion aad fhere was tenderaess on touch over her private part an.d anus. PW1 Bhagirathi has deposed in his evidence fhaf at fhe time of iacident he was residmg m front of the house of prosecutrix, At ftie time ofmcident prosecutdx cried for help but he did not came, He saw fhe prosecutrix in second day inomiag, The prosecutrix was setting ia front of the house aad was weeping, Prosecutrix has declared this witaess hostile. PW4 Kirtaiibai has deposed ia her evidence on fhe date of iacident at about 12.32 at mid night prosecutrix came to her house and knocked her door when she opened ftie door she asked for water aad after drinkmg fhe water she told fhat 3 persons includmg Bholaram have coniinitted rape wifh her, PW5 prosecutarix has admitted ia Para-9 ofher cross exammation tiiat her in-laws aad husbaad have left her she constructed new teinporaiy hut just before 3-4 days froin fhe iacident ofher persons have also constructed temporaiy hut but they have not starting Uvuig ia their hut. There are soine discrepancy, onussion and contradiction ia her stateinent aad Fijrst Infomiation Report. 11. Defence has asked her ia Para 15 of her cross exaBution fhat she herself has iavited fhe accused aad cooked ineal for her. Defence has also suggested th.at she herself lay down ia fhe floor which she has denied aad speci&caUy stated that present accused has fell down her m fhe Uoor and conixnitted rape with her. She has also denied the ^ "V suggestion fhat she waat to many with accused aad when he refused then she has lodged fhe false report. Pactum ofpresence ofappellaat in the house of prosecutrix at the tiine of commission of fhe offence is virtually not disputed by fhe appellaiit, Appellaat has speci&cally suggested fhat prosecutorix has iavited him aad she herself lay down ia tiie Uoor for iatercourse which she has specifically denied her statement is corroborated by fhe statement of PW4 Kirtaabai whom she has iininediately narrated the iacident soine abnonaal iacident with fhe prosecuttix has also supported by hostile witaess PW1 Bhagirafhi, PW2 Dr. N. Shanna has deposed fhat tenderaess was found over her private part aad iajuiy was also found over her brcast and leg, Prosecution has earlier exainiaed fhe prosecutrix as PW7 during fhe trial agaiast two another accused where she has also deposed saiae fhing in her stateinent. In fhe present tdal she has deposed fhat 3 persoas have committed iatercourse aad caraal iatercourse ravishiagly and twicely tendemess aad mjuries found by the doctor supported such commission offhe offence. 12. Prosecutnx has speci&cally deposed that after breakmg the door appeUaat entered mto her house aiid committed mtercourse wifh her which is punishable for imprisonnient for Uve. 13. A prosecutrix of a sex ofiFence caanot be put on a par wifh aa accoinpUce. She is ia fact a victun of the crime. While dealiag with the question of corroboration Apex Court has held ui case of State of Maharashtra v. Chandraprakash Kewalchand Jaiii1, fhat the prosecutriix cannot be put on a par witlt aii accoinpUce. She is in fact a victmi offhe criine. Para 16 reads as foUows:- ' (1990) 1SCC 550 : 1990 SCC (Cri.) 210 ^. r ^4 <:. ^ e 16. Aprosecutnx ofa sex offence cannot beputon apar with an accomplice. She is infact a victim ofthe crime. The Euidence Acf, 1872 (in short {the Buidence Act') nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedty a competent witness under Section 118 and her evidenos must receiue the same weight as is attached to an injured in cases of physical violence. The same degree of care and oaution must attach in the evatuation of her evidence as in the case ofan injured complainant or Wltness and no more. What is ne<^ssary is that the court must be aliue to and a)nscious ofthefact that it is dealing unth the euidence ofa person a who is interested in the outcome ofthe charge leveled by her. Ifthe court keeps this in mind andfeels satisfiedthat it can , act on the evidence of the prosecuirix, there is no rule of law ofpractice inwrporated in the Eindence Act similar to Rtustration (b) to Section 114 which requires it to look for a^rroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may hokfor b evidence which may lerzd assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances ofeach case. But if^a prosecutrix is an adult and offull understanding, the court is entitled to base a coiwiction on her evidence unless the same is shown to be c infirm and not trustworthy. Ifthe totality ofthe araimstances appearing on the record of the case disdose that the prosecutrix does not havea strong motive to falsely irwolve the person charged, the court should ordinarily have no hesitation in accepting her evidenoe. v 14, While dealmg with fhe saine question Apex Court has held in case ofS^ Ramakrishna v. State Reoresented bv the Public Prosecutor. High ^.-''-' ;;/- ^^, /.^ .-'^'^^ \^i h X%SPP% S ^^ ^ 1 <:. Court of Andhra Pradesh, Hyderabad2 fhat conviction caa be basted on fhe sole testiniony ofthe prosecutrix. In the present case statenient of the prosecutrix is corroborated by fhe inedical evidence, evidence of PW4 Kirtaabai whoin she has iinniediately narrated fhe iacident on close scrutiny of fhe evidence of fhe prosecutrix aad aforesaid witnesses aad suggestion given by the accused to fhe prosecutrix her stateinent inspu^ confidence trustworthy and safe for reUarice. 15. After appreciatmg evidence available on record leamed Sessions Judge has convicted aad sentenced fhe appeUaat aforeuientioned. Conviction Sentence offhe appeUant are based on credible and cliachmg evidence, As regard the sentence is conceraed sentence of rigorous imprisonment for 10 years aad fine of Rs. 1,000/- for fh.e offence of gaag rape and sentence of rigorous imprisomnent for 3 years aad fuie of Rs, 500/ - for fhe ofFence of house braking wifh iatent to commit fhe offence punishable under Section 450 of fh.e Indiaa Penal Code is neither excessive nor unjust. 16. For tlie foregomg reasons, I do not fmd aay scope m fhe present appeal. Appeal is devoid of merits aad is Uable to be dismissed aad is hereby dismissed. Sd/- T.P. Sharma Judge < '(2009) 1SCC133