m THE mGH COURT OF CHHATTISGARH JUDICATURE AT BILASFUR CmMINAL APPEAL N0. ^r OF 2002 AppeUant (In JaiL) ^s^ .^ ^••••^^ ^o^\.^rr'.-"" \^" .^<^ ^"•€.;- \p ^•' Respondeat BalKishun S/o. Sivnath Aged about 21 years resident Turga, P.S. Lakhanpur Dist. Surguja (C.G.) VERSUS The State of Chhattisgarh Through P.S. Lakhanpur Dist. Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (21 OF CMMINAL PROCEDURE CODE 1973 f) <f .^. HI6H COURT OF CHHATTIS^RH AT BIL^SPUR Criminal ApD®alNo. 826/2002 Balkishun Vs. Stat®of Chhattisgarh Singie Bench: Hon'bl®Shri Dilip Raosaheb beshmukh. J. Present: - Smt. Hamida Siddiqui, leamed counsel for the appeltant. Shri Ashish Shukla, learned ^ovt. Advocate/Addl. Public Prosecutor for the State. ORALJUD6MENT (C^td on 16-02-2006) This appeai is directed against the Judgment dated 29-06-2002 delivered by Shri P.N.S.Chouhan, 3rd Additional Sessions Judge^bistrict-Sarguja (€.6^ in Sessions Case No.357/2001 whereby the appelbnt was convicted under Section-376 IPC and was sentenced to undergo RJ. for 7 years. 2. Briefly stated the prosecution story is that on 07-04-2001 at about 8 A.M., Phoolmati PW-1 had gone to the forest to collect Mahua. While returning home, the appellant met her and asked her to stop. On deniai, the appellant caught hold of her and forcibly committed rape on her. The prosecutrix returned home and informed about the incident to Banarsi Bai PW-2. The husband of the prosecutrix returned home from viISage-Lusga on the next day, The FJ.R. ExP-1 was lodged by Phoolmati PW-1 on 08-04-2001 in P.S.-Lakhonpur situated about 20 K-m. away from the place of occurrence at 08*15 P.M. On medicat examination of the prosecutrix, br.Smt. Asha Bansal found that the vaginat examination was pGinful and mucosa was inflammed. She opined that the prosecutrix was habituated to sexuat intercourse* Petticoat of th©prosecutrix was seized vide Ex.P-9 on 09-04-2001 and was sent for chemicat analysis along with vaginal siide proved by Dr. Smt. Asha Bonsal PW-6 on 16-05-2001. However, the report of Forensic Science Laboratory was not produced before the trial Court. The accused was also sent for medical examination, Dr. Ashok Kumar PW-4 on examining him found that he was capable of performing sexual intercourse, After completion of investigation, the appellant was prosecuted under Section-376 of IPC. The accused-appellant abjured the guilt. The prosecution examined 9 witnesses in support of its case. The accused-Gppellant pleaded innocence in defence and examined one Jangli Ram b,W.-l. The trial Court relying upon the testimony of prosecutrix which was duly corroborated by Banarsi Bai PW-2, Mangal PW-3 as atso by the FJ.ft. Ex.P-1 and the medical evidence of Dr.Smt. Asha Bansal PW-6, convicted and sentenced the appellant as aforesaid in para-1. 3. Smt. Hamida Siddiqui, learned counsel for the appeiiant argued that the appetlant has been falsely implicated which was cteariy borne out from the cross-examination of Para"3 of the Banarsj Bai PW-2, Shc further contended that no satisfactory explcxnation for the delay in lodging the FJ.K. was given by the prosecutrix. It WGS aiso pointed out that :l^®ISIPSII?%l%ljtll?l Mangal PW-3, husband of the prosecutrix has avoided to answer any question relating to previous enmity with the appellant which is borne out from Para-3 of the testimony of Banarsi Bai PW-2. Lastty/learned counsel for the appeilant submitted that the report of Forensic Science Laboratory was a!so not proved by the prosecution. 4, On the other hand, Shri Ashish Shukla, learned 6ovt. Advocate has argued in support of the impugned judgment. s\. 5. Having heard rival contentions, I have perused the record of Sessions Case No.357/2001. Phoolmati PW-1 testified that at about 8 A,M. white she was returning home after collecting Mahua, she met th©appellant on way ond the oppellant asked her to stop and upon her deniat caught hotd her and pressing her mouth, lifted her sari and committed rape on her. Thereafter, the appeilant ran away. She started crying and retumed home and informed about the incident to Banarsi Bai PW-2. It is pertinent to note here that in the cross examination of the prosecutrix, 1+iere is absolutely nothing to rebut her testimony about the rape committed by the appellant on her. No question has been asked regarding the incident to the prosecutrix in cross examination. Banarsi Bai PW-2 has corroborated the testimony of Phoolmati PW-1 that on retuming home, she had totd her that the appellant had committed rape on her in the forest. She further stated that on the day of incident, the husband of the prosecutrix had gone to village-Lusga. br.Smt. Asha Bdnsal PW-6 testified that she had examined the prosecutrix on 09-04-2001 and ^.,._. 1 found that the vaginal examination was painfui and mucosa was inflammed. ^NS 6. So far as the contention of the learned counsel for the appellant regarding the unexplained delay in lodging the F.I,R, is conccrned, it is liable to be rejected, The incident had occurred in the morning of 07-04-2001. The evidence shows that the husband of the prosecutrix was not present at home and had gone to village-Lusga and had returned on the next day. The report was lodged by the prosecutrix at 08.15 ?M. on 08-04-2001 P.S. Lakhanpur, situated about 20 K.AA. away from the place of occurrence. In the FJ.R. ExP-l, the aforesaid reasons for the delay has also been mentioned. It is true thot the testimony of Banarsi Bai PW-2 in para-3 of his cross-examination shows that Mangal PW-3, the husbdnd of the prosecutrix had an axe to grind against the appellant. It is atso true that Mangat PW-3 has in para-4 of the cross- examination shown ignorance about the facts constituting animosity with the appeltant, but, animosit/ is a double edged weapon and can be used by other side. In this case, no question has been asked in cross-examination to the prosecutrix that she had falsely implicated the oppellant due to animosit/ with her husband, It seems highly improbable that any married woman would lodge a false F.I.R. of commission of rape on her, simply because of some animosity of her husband with the appellant. The contention of learned counsel for the appellant that the report of the Forensic Science Laboratory has not been filed in this case is also of no avaii to the defence, The prosecutrix is a married woman and the semen found on petticoat, would not by itself constitute a strong circumstance a9ainst the appellcint/ 7. Having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that the testimony of the prosecutrix Jnspires confidence, isunrebutted in cross-examination and duly corroborated not onty by Banarsi Bai PW-2 and Mangal PW-3 but also by medical evidence of Dr, Smt. Asha Bansal PW-6 and the F.I.K. Ex.P-1. The conviction of the appellant under Section-376 IPC and the sentence awarded thereunder by l4ie trial Court cannot b©,therefore, be faulted with. hNI; 8. In the result, this appeal is devoid of merit and is accordingly dismissed. The conviction of the accused-appeljant <md th© sentence awarded thereunder are maintained* Sd/- Dilip Raosaheb Deshmukh Judge Tumane