.w-w' fsfs#m IN THS HIGH COURT OF JUDICATURB AT JABALPUR (M.P.) CRIMINAL APPBAI* NO*^6^0 /96 Appellant t (In Jaln) Ravi. Shanfear^ son ©£ Sita^am Safcnami aged about .19 yeafs^ resident ofi jhiXadah, Police Station Khairagax?hr" <3,i.strict RajnandgaOB<» -vsw Respo£ident$ State of Madhya Pradesh* .GonTiotion under Seati©n:- 376i> I<:P>C»^ .SentenGes- 7yeair© . .. .Regrous Impresonment' and" one thousand rupees filne; in^'defaultofpayRienfe six months further regroi.is impresonmen^fc^ CRIMINAL APPSAL UNDER SEGTION 374 OF THB CODB OF CRIMINAL PROCSDURB; HXGH COURT 01= CHHATriSGARH AT BXtASPyS (HOFS. Mr. Jystice Pntlnlcer .Dlwa.lcer) Criminal Appeai No. 1080 of 1996 \r < APPELLA.NT Ravi' Shankar VERSUS State of Svtadhya. Prade.sh Shri Rajesh Jain, counsei for the appetlant. Shri Ashish Gupta, P.L. for the State. CRININA1.APPEAL UNDER SECTXON 374 (2.)_eFJli£ £^.DEOF CRZNI^iAL PROCEeMSEa IM-B-SJIXJU (08.04.2011) This appeat 'ls djrected against the impugned judgment and order dated 03.07.1996 passed by the Adclitionai Sesslons Judge^ Khairagarh In Sessions Trial No. 42/94 convlctjng the accused/appeilant for the offence under Section 376 of IPC and sentendng hlm to undergo ngorous imprisonment for seven years and pay fine of Rs.1/000^ in default of payment of fine to further undergo rigoroua jmprisonment for slx months, 2, -.Brief facts of the case are that on 20,02,1994 at about 8.30 p.m., FIR Ex.P-1 was iodged by the prosecutrix (PW-l) aged about 18 years aljeging in it that on that day at about 3.30 p.m. when she was cutting grass In the fie.Id,. the accused/appejlant reached there and after throwing her on the fje.Id committed forclble sexual intercourse with her, She has stated that after reaching her house she n^rrated the entire incident to her grand mother Chaiti Bal (PW-10) and thereafter the report was Sodged. Based on this report^ offenee under Seetion 376 of IPC was reoistered agaEnst the ^'"..-^ -5.' appellant. The prosecutrix was medlcally examined on 20.02.1994 vide Ex,P-3 by Dr, Smt. L, D. Jindani (PW-4), After completion of investigatlon., ChalSan was ftied on 06.04.1991 for the offence under Section 376 of IPC, 3. So as to hold the accused/appeSJant gulJty/ prosecution has examlned 12 wltnesses in support of its 'case, Statement of the accused/appeliant was also recorded under section 3.13 of the Code of Crimjna! Procedure jn whlch he denled the charge leveiled against hjm and pjeaded his innocence and false jmpljcation jn the case. This apart^ one witness namely Anuj (DW-l) has also been examjned by the defence in support of its case. 4. After hearing the partses the trlai. Court has' convlcted the appeliant for the offence under Sectlon 376 of IPC, hence, the present appeal. 5. Heard counsel for the parties and perused the material available on record Indudlng the judgment jmpugned, 6. Contention of Shri Jain, learned counseS appearing for the appeiiant is that present appears to be a case of consent but unfortunately the blood stained cloth.es of the prosecutrix were seen by her grand-mother Chaiti Bai (PW-10) and that is why the report was lodged. He submlts that the witnesses' have categoricaily admitted the fact that sf the biood had not come out,,' the report wouid not have been lodged. He further submits that fhe prosecutrix was havlng some sort of affair with the appeSSant and that ls why she permitted the appetlant to have sex vvith her. It has also been argued that but for the injunes on her private part the prosecutrix did not sufFer any injury on the other part. of her body whlch shows that she was a consenting party. He submits that the Court beiow ought to have reiied upon the defenee witness nameiv Anuj (DW-1) ^^^5fis ^ --3- before arnving to a particuiar conclusion of convjctinQ the appellant. 7. On the other hand supporting th@ impugned judgment it has been argued by Shri Gupta^ learned counsel appeanng for the State that a very prompt report was iodged by the prosecutnx i.e. wlthin five hours of the incident and her medical report has been found positive. He submits that there is no evidence on record to show as to why th^ prosecutrix has falsely impltcated the appeSSant. Me further submits that the piea of consent is not tenabie because in her court statement the prosecutrix has categoricalSy cteposed against the appellant by saying that she was subjected to forcible sexuai intercourse despite of her protest. 8. The prosecutrix (PW-1) in her evidence has stated that she knows the appeilant and on the date of incident at about 3 p,m. when she was cutting grass in the field^ the appeliant came from her behind; caught hold her^ threw her on the field and committed forcibie sexual intercourse with her. She has stated that while she was being subjected to rape she did offer protest but despite that the appetlant committed rape on her. After commission of the offence she came back to her house weeping and narrated the entire inadent to her grand- mother as on that day her mother was not at the house. Thereafter her grand-mother Chaitt Bai (PW-10) informed the villagers about the inddent and in the njght when her mother returned the report was lodged. She was medicalty examtned and her clothes were seized by the potice. In cross- examination, the prosecutnx appears to be very firm and has reiterated as to ln what manner she was subjected to sexual intercourse by the appellant. Various questions were put to her by the defen.ee an^ syggestlons were also given but the •;^-^ i i-^y"^ -^- prosecutrix was very firm and has described as to i.n what manner she was subjected to rape by the appeKant. She has stated that at the time of recordjng the FIR and her case diary statement she narrated theentjre Incident to the police but if something is mjsslng/ she could not tell the reason. 9. Jhumuk (PW-2)^ a vsllager has stateti that on th©date of jncident he was informed by one Kanglu that the prosecutnx was subjected to sexual intercourse by the appetlant, He has stated fchat vllSagers were cajled and then a deasion was taken to lodge the report. He is also the wjtness of Ex. P-2 by whjch Sari, petticoat and blouse of the prosecutrix were selzed, Rukmni (PW-3)/ mother of the prosecutrix has stated that on the date of inadent when sh@ retumed from Khajragarh.. he found number of persons standing outside her house and the prosecutrix was being taken on a builock cart. She was informed by one Gaindi that the prosecutrix was subjected to rape by the appeliant. In paragraph-7 she has stated that the prosecutrix was bjeeding profysely and t.hat ss why the report was lodged, 10. Dr. Smt. L. D. Jindanj (PW-4) who medicQlly examined the prosecutrix vide Ex. P-3 has found foSlowjng injuries on her person: Injuries: No injuhes present on body. Dried bold stains present on both things; legs & feet. Hymen - lacerated^ edges are swotien, red & very tender biood oozing from vagina. Vagina! orifice admits one finger loose. TTsere Ss tear in vaginal wall, just below cervix, in posterior. Bteeds on touch. Opinion: Rape has been done within twelve hours. She has stated that blood was oozing from the private part of the prosecutrix, her hymen was torn and on belng touched ^.-...•ft^c. ^ •^ -5'- she was compiaining pain. Accordjng to her the prosecutrlx was subjected to rape within 12 hours ofthe examination. 11. The Head Constable Bhuneshwar Singh (PW-5) had recorded the FIR (Ex.P-l) and sent the pro^cutnx for medical examlnatlon. Samay Ram (PW--6).. who js a witness of Ex.P-4 has not stated anything spedflc against the appejsant, Dwarika Prasad (PW-7) Is a seizure wstness of Ex.P-5 by which broken bang!es of the prosecutrix were seized, Chandu (PW-8)/ the village Kotwar has stated that the prosecutrix was taken to Khairagarh on a bullock cart and he saw the bjood stains on the clothes of the prosecutnx, Ludharu Ram (PW-9) is the Patwan who had prepared the spot map Ex. P-6. Chaitl Bai (PW-lO), grand-mother of the prosecutrix has stated that on the date of incident when she was jn her house^ the prosecutrix came to fche house weeplng and informed her that the appellant after throwing her on the fjeld committed rape on her. Accorcting to this witness^ blood was oozjng from the private part of the prosecutrix and she saw blood stajns on the clothes of the prosecutnx, Though she has admltted the fact that she scolded the prosecutnx by sayjng that why she meets the boys. She has further admjtted the fact that there was some dispute between her famjjy and the famjjy of the appellant Ravindra Upadhyay (PW-ll)^ the investigating Officer has supported the prosecution case. Dr. S.S.Chhawada (PW-12) who medjcally examined the appellant vide Ex.P-lOA has stated that the appellant was capable of performing sexual jntercourse, According to him the appeliant had sexual jntercourse wjthin 24 hours. Defence wltness Anuj (DW-l) in his court statement has stated that there exists a dfspute between the familtes of the appellanfc and the prosecutrix. °-;^t \\ \.. ~L. -6- 12. Mjnute exam.ination of the evidence makes it clear that on the date ofinddent, the prosecutrix (PW-l) was subjected to rape by the appeli'ant against her wish and her statement has been ctuly supported by Dr. Smt. L, D. Jindanj (PW-4) who has categorically deposed that she was subjected to rape wlthin 12 hours of the examjnation. That apart/ Dr. S. S. Chhawada (PW-12) who medically examined the appejlant has stated that the appellant had sexuaj intercourse within 24 hours. Further a very prompt report j.e. wjthin five hours of the Incident was loctged by the prosecutrix. Minor contradictjons in the statement of the prosecutrix are of no help to the appellant because the statement of the prosecutrix appears to be trustworthy which inspfres full confldence of this Court to uphold the convlctlon ofthe appellant Defence taken by the appellant appears to be after thought and on the basls of the same the appel!ant cannot be acquitted of the charge levelled against hsm 13. Statement of the prosecutrlx whlch has been ctuty supported by her medical evictence appears to be quite trustworthy to arrive at the conclusion that the appellant had committed the offence by caussng injur/ on her prlvate part. Nothing has been brought on record to discredit th@ testimony of the prosecutrix and take a view contrary to that of the Court below. 14. ConsequentSyy the appeal fajls and the same is hereby dismissed. Accused/appellant is on bail. His bail bonds stand cancelied. He be sent to jail forthwith to serve out the remainlng part of the sentence imposed on him. Sd/- pritinkerDi^aker Judge