\ -ll!HIIMIIHHHHHHI WW 5 00060276 IN TEE HIGH COURT OF JUDICATURE AT JABALPUR Criminal Appeal No. “51% /98 Krishnaram,/Son QéLal Dev:;n, Aged about 28 years, Residence of Village BehmaT’ P.S. Kansael,r/’ District Raigarh (W) K. f Vs u ‘ Respendent _- g . ,,{.-g‘§,,..—«* The State of Madhya Pradesh through Police Station Kansabel, /Distt. Raigarh (Now Jospur nagar) fMwée Criminai Appeal U/s 374 (2) of the Code of Criminal Procedurs o ,w' Réfa. Conviction Sentence f / r— U/s 376 IP I. R.I. for 7 years with fine of t ” Rs. 500/. in defaul Ii/Z £or , y h, 2 months x smog)” o o-“ Amoue ‘ b o A w C #RJ/ @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1328 of 1998 Krishnaram APPELLANT VERSUS RESPONDENT State of Madhya Prades h Smt. Sudha Agrawal counsel for the appellant. Shri Vivek Sharma PL for the respondent/State. €RIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF ‘ CRIMINAL PROCEDURE. JUDGMENT A ~ (02.02.2011) This appeal is directed against the judgment dated 15.5.1998 passed by the Additional Sessions Judge, Jashpurnagar in‘Sessions Trial No. 61/1998 convicting the accused/appellant under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500 in default of payment of fine to undergo rigorous imprisonment for two months. Case ofthe prosecutionin brief is that on 27.4.1996a missing report was lodged by Firish Ram (PW—2) — the father of the prosecutrix alleging that on 25.4.1996 when he and his wife had gone to the jungle to collect fire wood, prosecutrix (PW-1) was in the house along with her brother and when he returned home in the evening, he found the prosecutrix missing. It is alleged that he was informed by his son that the prosecutrix had gone along with the accused/appellant and when he enquired the accused/appellant he ihformed him‘ that the prosecutrix had gone to the house of one Akbar to attend marriage. Thereafter, she was recovered from the . house of her uncle Ghurvat (PW-3) on 29.4.1996. Her statement was recorded on 30.4.1996 and FIR Ex. P-6 was registered on the same day for the offences under sections 363, 366 and 376 IPC. She then was medically examined by Dr. R. Toppo (PW-6) on 2.5.1996 who gave her report Ex. P-3. After investigation, challan 2. was filed on 1.1 1 .1996 for the offences under Sections 363, 366 and 376 IPC. _1_ 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses in support of its case. Statement of the aedat re undr 3 he ode of Cn Prede w he r eed against hi and pleaded hi nocence and als implicti i the case. ccus/appeiln was aiso corded e section 13 of t C rimial ocur in hich he denied t chages levll m s in fe aon n 4‘ Afte haring parti the trial Court has acitd th cused/aelant of the chrges under Sections 363 and 366 IPC . t cnvicted and sncd him as mentind ave. A . Heard nsl for the rties ad perus e teril vailable o rcord inclding the jdent impugned. . Cusel fo the appeat submit that there is inordinte del f about ix ays in lodin th FIR whih not en atisfactorily plined y the prosecution. She subit that mial prt the protrix is t positive and therefore nfit f th a hold be gi to the accused/pella. She ubmits ooking ' the condut of t procutri where accmpaied the acsen of o h n 76 PC s cud/appellat her wn, te offence uder Section 3 I i ot made out. he submits tt father of the prosecuix nd th f h an hy te n S ha tr a at o te appellant were not having good relations d that is w h possibility of false implication of the accused/appellant cannot be ruled out. She submits that as uncle of the prosecutrix is also a doctor who had accompanied her while she was taken for medical examination, possibility of manipulation of medical report cannot be ignored. ’ f. On the other hand counsel for the respondent/State supports the judgment impugned and submits that delay in FIR could be because the family members of the prosecutrix must have consulted each other before doing so and may be for this reason it took time in lodging the report. He submits that this delay is not fatal to the case of the prosecution because on 25.4.1996 the prosecutrix was raped - r e the es qute e acppl a bu o entee oe bo 5 coue pa n ed th maa a n e u ugm 6 on r lln s an a ay o s d gg e c has be s exa b ms edc reo of secu no bee o e sme su ven apnt s l to c he sex she on by the accused/appeHant and missing report was Iodged on the same day, on 29.4.1996 she was found in Ihe house of her uncle and on 30.4.1996 her case diary statement was recorded and then the report came to be lodged on that day itself. He submits that the medical report of the prosecutrix is positive as the doctor examining her noticed injury on her private part and her hymen was ruptured. 8. Prosecutrix (PW-1) has stated that on the date of incident at about 10—11 p.m. she had gone to village Nakwar to attend the marriage in the house of her uncle where she met the a6bGsed{appellant and asked him to drop her at village Pemla. According to" this witness, the accused/appeilant took her on his bicycle and on‘the way near a river; he threw her on the sand bed and committed‘forcible sexual intercourse with her. Thereafter, she again asked him to take her to village Pemla but he refused and then she proceeded to Pemla alone and after reaching there she informed her uncle Ghurvat (PW-3) about the incident. In cros examination she has categorically denied the pendency of any land dispute between her father and the father of the accused/appellant. In paragraph 5 of her cross examination she has clarified that her mother and father were not willing to send her to attend the marriage iand when they had gone to jungle, she went to the house‘of the :accused/appellant twice. According to her, she stayed at Pemla for 4 5 days and on the fifth day her father had come there and then the report was lodged This Witness has admitted that one Dr Chouhan of Kansabel happens to be her maternal uncle In relation but has denied that the medical report was managed by her because of him iNo suggestion has been put to this Witness in the cross examination ithat she was a consenting party to the act of the accused/appellant Bare reading of her deposmon reveals that she had accompanied the accused/appellant to Village Pemla but she had never consented for the phySicaI relations With him. Accompanying a person of her ‘ own and allowing him to have sex with her are two different things. Prosecutrix has categorically stated that when she was being taken to village Pemla, accused/appellant threw her on the sand bed and committed forcible sexual intercourse with her. ‘ s l i i ‘ @? h -2) — the tr of t utrix h ht o .4.1996 a s red home t ng, his so infored hi tt th sux d go aog accedpant tte mrrag When thi ws the ced/aei eabouts of e prosecut he inme m at e ad gon o he plce of mge Thref wen is a no rern o he sec n q e ppeiln bo e w e osecure h Sa f tgwiie but e acused/eiint told him that he as t‘aw _.(/__ Firis Ram (PW fahe he prosec as stated ta n 25 he nd hi wife had goneVto jungle and eturn in he eveni n m m ha e proectri ha ne ln with the us/apell to and the aie. s itnes enquired acusppiant about the wher th rix, ford hi th sh h e t t a arria. eater, h h dughter did t tu n t ond day, he agai enuired th accused/aat aut th hereabouts of th prtrbt’befo the Panc and arpnch o hag th cappa w noare th sae. e e went to village emla and found his dauhter of e m l-l thn P g weepi. This wtness s informe by the prseutrix th he a su frc e acppllan He as taed e ag tri the lw has alrady given its nding in that respect holding her to m nd cq usedp e s a 36 th t n pce sam atea th ar h d 2. S s a mca ec x ar priv f th ng i wa d oc at s ws bjected to oible sexual intercourse by th cused/aet. has lo st about th e of the prosecux but as Court beo e fi be ajor a auitted the acc/apellant of the chargs u/ 363 nd 6 IPC, is Court does no thik it proper to re-apreiat the e. Sll Sahu (PW-5) is e Patwi who ad prepare spot map Ex. P— Dr. (mt.) R. Toppo (PW—6) is the witnes who hd edilly examined the prosutrix and given her report E P—3 has opined that there was a scratch mk on the ate part o e prosecutrix and hymen was ruptured According to this Witness the injuries found on the body of the prosecutrix could be 4 7 days old This witness has stated that vaginal slides were prepared and sent for chemical examination along With the clothes of the prosecutrix This Witness has denied the fact that the injury on the body of the prosecutrix could be caused because of something else Nelson Lakda (PW 7) is the Witness to the entry register of the school ASSIstant Sub Inspector namely C M Maitry (PW—8) is the Witness ‘who had done part of the investigation Dr M D Joshi (PW 9) who ‘had done ossmcation test of the prosecutrix has opined that she was aged about 15—16 years at the relevant time. Nankaram (PW-10) is the police constable who had registered the missing report of the prosecutrix. 9. Minute examination of the eVIdence of the prosecutrix thus akes It clear that though she accompanied the accused/appellant of r wn o aten e aag at Pem s neer onseed he o t td som mrrie la, he v cnt fr any hyl reon h e amusap d o psica latis wit him and th ed/pellant id the s ns Wi e E if e ame with her agait her will and thout her consnt. ven th age the roscutri is takn as mor than 16 o 18 y, se ite by the accused/apellant witut r consent ake hi nercours p ho he ms m ia c unde Sen P re so he medi lble for convition r ctio 376 IC. Mo , t cal report als cofir th iju on th pivate art f the tri apart from th presen of sperozoa on h skirt and vainal lides as is clear ro FSL report Ex. P—9. Trial Court’s findins s fm g baing based n due apection the vidce of the itnesse a ju nd prr an no intrfence theewith i called fr. _g‘_ 1 cor al g ri is b t b 0. A Acdingly, the appe bein without met liale o e issed d it is dismsed s such. Aused/ppellai on bil. dism an is a ccants a Hi il bond stad cncelled. H b taken io sody rthwith. /"l - -’—’ Sdl- i Pritinker Diwaker Judge @ of pex e e r ears xual o nms e nry e r p o prosecux e ce mat er g o pria of een ws re st a ope d ere r s o s ba s n a e e nt cut fo a “i