ammmx 3 f § I l i i x l i i E § i i £ § i E g § ? § g . § wxr mmwm Wmw‘wwm % aifat! W T OF CH ATTISG 7 ASPUR HIGH CO CRIMINAL AkPEAL NO. 53(2004 Present: Shri HS. AhluwaliaJ Shri Arun Sao. GA for \chmcate for the appellant. the State. 012M. JUDGMENT (15th Npvember 2007) Dhirendra Mishra, J This appeal is Clix conviction and order of s ‘ S.T.No. 102) 03 whereby 1 armed Additional SeSSions Judge. Khajragarh has convicted r e appellant under Sections 341, V376( I), 506-II of the IPC d sentenced him to undergo . f Teh— {CG} SI for one month, RI for 10 year and RI for two years, respectively. All the sentences have bee directed to run concurrentlv ected against the judgment .of tence dated 7.11.2003 paseed in Aunellant Ri hiram. (iii the custody} Sr; Charén Gond Ag d about 25 vears D vm-Jhrlakaa, e f n Kh ‘ agarh, Dist. Kajnand Gaon VE‘ SUS 4 Res9ondent- State of Chhattisgarh WW W 2‘00 WW (WK) WWW L a. Uase OI the preset 2003 around midnight m of the prosecutrix in hat house. The prosecutrix went to attend :r hiends Lahta and Chameli towards returning after easing out, accused accused Bhagchand caught the .outh andlaid her on the ground and twice. At the time of commission of Iagchand was standing nearby. The only at 5.00 a.m. She narrated the lo informed her father and thereafter, in the village and ultimatelyJreport 2003 around 18.15 hours in Polite WW W§$fifs€1m $31’1’2wm ution, in brlef, is that on 2.1“ April arriage function was going on of sister the call of nature with ht the held. While she wars Rikhjram and absconding prpsecutrix, gagged her It committed rape with her A the oh‘en‘ce co-accuéed B] prosecutrix was released incident to her mother, w] a meeting Was convened lwas lodged on 24th April Station Khairagarh. 3. Dufin'g investigatic examined by Dr. (Stat) Se of EXP} 1. After comple hled against the aecus ed]; 4. During trial the pro: Thereafter, statement of ti denied the evidence appez case and stated that h prosecutrix Dayaram and therefore, they have falsel} In the prosecutrix ' was medically ema Jain [PW- 1), who gave her report ting investigation charge sheet was 1p}: ellant. mention examined 7 witnesses in all. 16 accused was recorded wherein he :ring against him in the prosecution (D had quarrel with father of the her maternal uncle Ashok (PW—5}, implicated him in the above odence. WWW ‘3 However, learned trial respective uarties ( accused! appellant a3 I iudgment. \ 5. Learned counsel for 'k 1‘ age of the urosecutrix is ( failed tr; eetabh'sh that t} at the time of incident osslecatmn test or Kotw pxoved to estabhsh age o that from nerusal of state be evident that she was a alarm While she was bei She remained with the a1 is alleged that sexual i; twice. which itself show Even Lalita Bai (PW-3". fr parents of the prosecutr prosecutrix forciblv towa prosecutrix clearly revea Moreover, there is inordir is of 2 l“ April at midnight lodged on 24th April 20 satisfactory explanation f r the aforesaid delay. It is clear horn WM‘hWW 3ourt after hearmg counSel for the :onvicted and sentenced the 1e11tioned in paragraph 1 of this the appellant submits that so far as oncerned, the prosecution has utterly 1e prosecutrix was less than 14- years as, no evidence in the shape of ari register has been produced and f the prosecutrix. He further argued merit of the prosecutrix itself, itzwould consenting party as she did not raise rig dragged by the accused persons. )pellant for alm ost three hours and it ntercourse was committed with her s that she was a consenting nartv iend of the prosecutrix did not inform 1x that the appellant has taken the rd the held. Thus. conduct of the .s that she was"a consenting nartv. ate delay of two davs as the incident Whereas report was of the same was 3 at 18.15 hours and there is no Wm @200 WWGEIEW) mmm (i Wm Wm %a¢mm aOl’l to falsely imph'cate the ap Hant 1'11 the above crime. 6. On the other hand’ learned coun$el appearing for tha Statefrespondent suppét 1g the impugned judgment of the trial Court submits that version of the proeecutrix is duly "t T corroborated &om the st tement of Lalita Bai (PW-3): who i accomgianied the proeecu ix at the time of incident and who s ‘ had seen her being taken by the accused against her Wishes. Her statement is duly cor oborated from the statement of Dr. Seema Jain (PW~ l) who h s noticed injuries over hymen of the prosecutrix and opined t the prosecutrix was subjected to sexual intercourse within ne week of her examination. 7. I have heard learne counsel for the parties and nerused ‘ the material available o record including the impugned judgment. 8. So far as argument of learned counsel for the appellant that the prosecution has f ' ed to prove age of the prosecutrix, Court has not recorded a nnding that the prosecutrix was 1 ss than 16 years of age on thedate of incident. So far as con 'ction of the aypellant under Section 376 of the IPC is conc ned, the same is based on the statement of the prosecu ix [PW~ 1), who has stated in her deposition that on the d e of incident there was a marriage is concerned, even the tri GRI’iU—«FS/Zg »— j? l200( .—~50,(}00. WW W200 mm- (W) WWW 5’ Whm7iwm $ai§mm function in her houS€ of hbr sister and brother. 8116 went to attend the call of nature ound 2.00 a.m. in the intervening night with Lalita (PW—3) an Chameli. While she was returning after eaSing out the aecu d and his accomplice Bhagchand caught her near the held o Babudas, took her near canal and "* f thereafter made her lie o the ground and raped her after undreseing her. Her fri 1ds Lalita and Chameli hed from l there. She could not raise arm as she was threatened by the appellant. She was release only at 5.00 in the morning. After returning home, she narra ed the incident to her mother, who ‘ in turn narrated the same o her father. She was raped twice by the appellant, a meetin was cunvened in the village and in the said meeting also the a cused had. confessed his Quilt. She has admitted in her cross . mination that there are houses of other persons in the vi y of her house. In reply to the question by the defence as to why she did not shout While the appellant was undressing er, she has stated that though she tried to flee from there but ould not succeed. Learned counsel fo’r the appellant extensiv referring to the reply given by the nrosecutrix in her cross-e nation has tried to establish that the prosecutrix was a con enting party. However, version of the prosecutrix is to be s‘e 1 in the light’of the fact that apart from the appellant, there *as another accused Bhagchand at the time of incident. The prosecutrix has stuck to her claim t Min FSFQ -.— ;:= Izaak-some — c' 't a e x i mnanéwwa‘w Wam§rfgém $atfaqaram sexual intercourse against her that She was subjected to Wishex» 9. It is settled law that vict accomplice of the crim€ and t§sfim any cannot be acted material particulars. If the Ct accept version of the prosecutrix on its face value, it may Search for corroboration. i 10. ‘ In the present case, tak Lug into consideration the tender age of the prosecutrix and further considering the fact that her version is dulv corroborated njom the medical evidence of Dr. (Salt) Seema Jain (PW~ 1) who examined the prosecutrix and awelljng 85 reddishness in the noticed rupture of hymen, hymen, that there was bleeding, she was complaining pain on inserting little hnger and that version of the prosecutrixis also corroborated from the statement of Lalita (PW—3), accomnanied her at the time denosition that while they were returning after easing out, the accused caught the prosecutr:x, took her to other side of the road and threatened them not “u m of the o§ence of rape is not an g there is no rule of law that her upon Without corroboration in uurt on facts iinds it dwicult to who of incident and stated in her to disclose this fact to other, it is established that the prosecut‘ix was not a consenting party and she was subiected to se against her wishes. a1 intercourse by the appellant 3a WW, WWW-3, W Wm m 2cm mm (WE) 1 311%? a?!W i w: mWm f mm “aim am}! '9 W $m aim ff aim wW For the aforesaid reasons, this Court is of the considerod opinion that the prosecution has been able to prove guilt of the appellant beyond reasonable doubt and the tn'al Court has not 'z committed any illegality or inbrmity in convicting the appellant ; under Sections 34 1, 376( 1) and 506—II of the IPC. a ‘3 7 E ln- the result: the appeal fails and is dismissed § accordingly. s Sd/— DI-llRENDRA MISHRA Judge