HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON’BLE SHRI RAJESHWAR LAL JHANWAR J. Criminal Appeal No. 188/ 1999 Rajaram, S/o Baldhar, aged about 35 years, R/o Village Junadeeh, P. Chowki Balunda, P.S. Aakaltara, Tehsil Janjgeer, Distrcit-Bilaspur, M.P. (now C.G.) APPELLANT Versus RESPONDENT The State of Mad’hya Pra‘desh through P. Chowki—Balauda, P.S. Akaltara, District - Bilapsur Appeal U/s 374(2) of the Cr.P.C. Appearance: Shri V.C. Ottalwar, counsel for the appellant. Shri Pradeep Singh, Panel Lawyer for the State. J U D G M E N T (Delivered on n .11.2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 6th January, 1999 passed in S.T. No.149/96, whereby the learned Additional Sessions Judge, Janjgir has convicted the appellant under Sections 450, 376 and 506 (I) of the IPC and sentenced him to undergo R.I. for 5 years and to pay a fine of Rs. 1000/— and R.I. for 7 years and to pay a fine of Rs.IOOO/‘— under Sections 450 85 376 of the IPC respectively and in default of payment of flne to further undergo R.I. for 1 year on both counts, and R.I. for 1 year under Section 506 (I) of the IPC. 2. Prosecution story in brief is that on 12.1.1996 at 11:00 in the night, when the prosecutrix was alone in her house and was sleeping, at that time, one unknown person tried to enter in her house. After hearing noise, she woke-up and in the light of chimney; she saw that the person who entered in her house is Rajararn. At the time of his' entrance in the house he had pushed the door; the door was broken and was razed to the I hstaMK ground with some part of wall. After entering inside the room he caught hold her and thrown her on the cot and after putting-off chimney, he committed sexual intercourse with her. She tried her level best to save herself and to raise hue and cry, however, because of her house was situated far from the village, therefore, nobody could hear her. The appellant threatened to kill her and said her not to raise alarm. After that he fled from there. On the next day she informed the incident to Sarpanch-Ganesh Ram Sahu, Kotwar-Mayadas and other villagers and brought one Ramadhar, Panch to see her house. Thereafter, she reported the matter to police. The report was lodged. Statements under Section 161 were recorded. The prosecutrix was sent for medical examination. After completion of investigation, charge sheet was filed before the Magistrate First Class, Janjgir. In due course the case was committed to the Sessions Judge, Bilaspur. . The learned Sessions Judge, Bilaspur made over the case to the Additional Sessions Judge, Janjgir for trial. The learned Additional Sessions Judge has framed charge under Sections 450, 376 and 506(1) of the IPC against the appellant. Charges were read over and were explained to the appellant. The appellant abjured the guilt and pleaded innocence and his defence was that he has been falsely implicated in the offence. . The learned Additional Sessions Judge has, after evaluating the evidence available on record and hearing the counsel for respective parties, convicted the appellant under Sections 450,.. 376 and 506(1) of the IPC, as mentioned above. The main contention of learned counsel for the appellant is that the learned lower Court relying on the testimony of the prosecutrix and the statements of other prosecution witnesses has wrongly convicted the appellant. The learned trial Court did not rely on the testimony of Patwari (P.W.8) in which he stated that he has not seen the broken door and wall on the place of occurrence. He further stated that the prosecutrix was a woman of bad character as she lived with one after another person as wife. No external or internal injury was found on the person of the pr0secutrix. The prosecutrix is a consenting F» -‘~r1 W party. Learned counsel for the appellant placed reliance on 1996 (I) M.P.W.N. 105 (Note) page 159 (Lad Singh Vs. State of M.P.), 1995 M.P.L.J. 1041 (gyasra Vs. State of M.P.), 1997 (ill M.P.W.N. 73 (Note) Page 101 (Ghansu Vs. State at M.P.) 85 2007 m C.GLJ.R. 68 (Chaitram Vs. State of Chhattisgarh). On the othef hand, learned counsel for the State/respondent has supported the impugned judgment and placed reliance on 2009 CRI. L. J. ’1967 (Kapoor Vs. State of Madhua Pradeshl I have heard learned counsel appearing for both the parties at length and also perused the material available on record. It is evident from the statement of the prosecutrix (P.W.1) that one Ramji had taken her and kept her as wife. She further stated that at the time 0f incident at 11:00 O’clock in the night she was alone in her home as her husband had gone to another village. She was sleeping in her home after locking the door. At that time Rajaram came and knocked the door, however, she did not wake-up. Upon which, the appellant kicked the door forcibly, as a result of which; the door along with wall were broken and were razed to the ground. After hearing the noise of broken door, she woke—up and saw the appellant. The appellant extinguished the chimney and thereafter ravished her and committed rape forcibly on her. After meeting his lust, he threatened that if she would raise“; alarm, he would kill her. Thereafter the appellant went away from the spot. Due to fear because of the incident of rape by the appellant, she did not narrate the incident to anybody in the night. On the next day in the morning she reported the matter to Sarpanch, Kotwar and thereafter reported the matter to Baloda—Chokey with Kotwar promptly. The report was lodged. In her lengthy cross-examination she denied entire questions suggested by the defence. She further stated that due to fear she could not raise any hue and cry at the time of incident. She further stated that she did not receive any injury while the appellant thrownlher on the cot. cw l v Ganesh Ram SahL} (P.W.2), Sarpanch 0f the Village, has stated that the prosecutrix came to his house in the morning at about 6 to 7 a.m. and told him to accompany her toward her house. She narrated the story and also named Rajaram as a perpetrator of offence. He along with Kotwar Mayadas went to her house. After reaéhing house of the prosecutrix they saw broken wall and door of the house. The prosecutrix told him that the appellant has committed sexual intercourse forcibly on her and thereafter threatened to kill her. In para-10 of his cross-examination he further stated that the door and wall were broken and were razed to‘ the ground. It is evident that version of the prosecutrix was supported by Ganeshram (P.W.2), Mayadas (P.W.3) and Sukrit Das (P.W.5) to whom the prosecutrix narrated the story. The above witnesses had seen the door 8L wall broken at the place of occurrence. The learned P trial Judge, who saw the demeanour of the prosecutrix while recording her evidence, found her trustworthy. The appellant had failed to show as to why version of the prosecutrix should not be believed. According to the above discussions, it is clear that the prosecutrix’s version is trustworthy. . So far as the spot map is concerned, Shekh Guljar (P.W.8), Patwari, has prepared the map, though he said that he has not seen the broken door or wall at the place of occurrence, but witnesses— Sarpanch— Ganeshram (P.W.2), Kotwar— Mayadas (P.W.3) and Kotwar- Sukrit Das (P.W.5), after visiting the place of occurrence have stated that they had seen the broken door“ and wall On the spot. The above three witnesses have seen the broken door and wall and. there is no reason shown by the appellant as to why the versions of these three Witnesses should not be believed. Thus, their versions appear to be trustworthy. . So far as opinion of Dr. (Smt.) R. Paliwal that no definite opinion could be given regarding rape on the prosecutrix, in this context, it is pertinent to mention here that prosecutrix is married woman and being a married woman no injury was expected on her private part. Therefore in the above situation, particularly when the appellant had overpowered her, there could be no injury either on her body or her private parts m W“ because the appellant dragged her and forcibly made her lie on- the cot and committed rape on her and certainly the cot 1s generally covered with cushion. The absence of any injury either on her body or her private part would not render the testimony of the prosecutrix unreliable. I have gone through the testimony of the prosecutrix with utmost circumspection and found her to be reliable, convincing and trustworthy. Her testimony is cogent and acceptable. I find no plausible and justifiable reason to disbelieve and discard her testimony. The prosecutrix is a trustworthy witness and her evidence cannot be brushed aside merely on technical grounds because the evidence of the prosecutrix finds full support and corroboration not only from the prompt FIR, EXP-11, lodged by the prosecutrix but also from the testimony of Ganeshram (P.W.2), Mayadas (P.W.3) and Sukrit Das (P.W.5). 12. It is also clear from-the evidence of above witnesses that the appellant entered the house of the prosecutrix after breaking door and wall for committing rape which comes under the purview of Section 450 of the IPC. It is further clear from the evidence that appellant created criminal intimidation on the prosecutrix which comes under the purview of Section 506 (I) of IPC. 13. So far as the argument advanced by learned counsel for the appellant that the prosecutrix was a consenting party is concerned, it is evident that the appellant reached the house of the prosecutrix and knocked the door and when the prosecutrix did not open the dojor, he entered inside the house by breaking door and wall and thereafter forcibly committed sexual intercourse with her. This circumstance clearly indicates that the prosecutrix was not a consenting party. Her evidence is also corroborated from the evidence of Ganeshram (P.W.2), Mayadas (P.W.3) and Sukrit Das (P.W.5). In this View of the matter the above case law cited by learned counsel for the appellant being clearly distinguishable on facts does not help the appellant in any manner. So far as the argument advanced by learned counsel for the appellant regarding " absence of any injury '1 Kapoor Vs. State of Madh s concerned, this Court in the matter of ya Pradesh ‘supraa has observed that private parts would not render the was used to sexual intercourse and, woman, the prosecutrix in the absence of any injuries either on the body of the prosecutrix or on her Being a married testimony of the prosecutrik unreliable. particularly when the ted on her therefore, in the above situation, appellant had overpowere private parts. Having thus considered d her, no injury was expec and after the rival submissions and 506 14. of the considered opinion that perusing the record, I am nder Sections 450, 376 lr' conviction (I) of the IPC of the and-the appellant sentence u cable. awarded There is thereunder no merit by in this the learned trial Judge is impec appeal , the same deserves to be and is accordingly dismissed. ’Sdl- R.L. Jhanwar Jvdgé .