t^' HIGH COURT^F CHHATTISGARH. BILASPUR Criminal Aooeal No,332 of 2008 APPELLANT: Ramesh Mahanand Versus RESPONDENT: State ofChhattisgarh Post for brhncMjnGement of iudament on 12th Auqust, 2009 Sd/- T.P. Sharma Judge ^? HIGH COURT OFCHHAmSGARH, BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.332 of 2008 Ramesh Mahanand, S/o Kalaram, aged about 27 years, R/b Shakti Nagar, P.S. Pandari Mova, Raipur (C.G.) Versus State of Chhattisgarh, Through P.S. Pandari, Raipur (C.G.) {Criminal appeat underSection 374 (2)of the Code of Criminal Procedure, 1973} Present: Mrs. Kiran Jain, counsel forthe appellant. Mr.Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 12th August, 2009) i. This appeal is directed agajnst the judgment of conviction & order of sehtence dated 10-1-2008 passed by the 14th AdditionalSessions Judge/ Raipurin Sessions Trial No. 146/2007, whereby & whereunder learned Additional Sessions Judge after holding the accused/ appellant guilty for commission of offence under Sections 376 & 450 oftheI.P.C., sentenced him to undergo R.I. for seven years & pay fine ofRs.500/-,in default of payment of fine to further undergo R.I. for three months and to undergo R.I. for five years & pay fine of Rs.500/-, in defauit of payment of fine to further undergo R.I. for three months, respectively. 2. Judgmentof conviction & order of sentenceis challenged on the ground that withoutany medical evidence and credible evidence of the prosecutrix the Court below has convicted & sentenced the appellantand thereby committed illegality. 3. Case ofthe prosecution, in brief, is that the prosecutrix (PW-2),who is a widow woman, was residing at Shakti Nagar, Police Station Pandri, Distt. Raipur and just few days before the dateof incident i.e. 17-10-2005 her uterus was operated upon.On 17-10-2005 she was sleeping in her house, at about 4a.m. she came out to answer the call of nature and after answering the call of nature, whileshe ,^^-^. ^-~"\ '^^[j (S was entering in the house, the accused forcefully enteredinto the house of the prosecutrix and caught hold of herand afterlaying her on the cot, committed rape on her,and as a result ofsuch forceful rape,she felt pain in her abdomen, especially on the fresh operated part. She narrated the incident to Geeta & Ardali. Her children were not present in the house on that day. She lodged the F.I.R. within 3 1/2 hours at Police Station Pandri vide Ex.P-6. She was sent for medical examinationand she was examined by Dr. Supriti Sharma (PW-5) vide Ex.P-3, she was feeling pain on pressing the abdomen. two slides of vaginal smear of the prosecutrix were taken, sealed and handed over to the Constable. The prosecutrix was referred to Radiological Department for sonography. She was accustomed to sexual intercourse. Her underwear was seized vide Ex.P-10 which was also examined by Dr. Supriti Sharma (PW-5) vide Ex.P-5 and found some sperm like stains on the underwear. The underwear was sealed and sent for chemical examination. Vaginal slides were recovered vide Ex.P-12 and spot map was prepared vide Ex.P-13. The accused was examined by Dr. Sreedhar Rao (PW-1) and he was found capable to commit sexual intercourse. Sealed articles were sent for chemical examination to the Forensic Science LaboFatory, Raipurvide Ex.P-14and presence of sperm upon underwear& slides of the prosecutrix was confirmed vide analysis report Ex.P-15. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and aftercompletionof investigation, charge sheet was filed before the Chief Judicial Magistrate/Raipur, who in turn committed the case to the Court of Sessions, Raipur from where learned 14 Additional Sessions Judge, Raipur received the case on transfer for trial. 4.1n order to prove the guilt of the accused, the prosecution has examined as many as seven witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the circum.stances appearing againsf him and pleaded innocence & false implication, The accused has examined Radheyshyam (DW-1) in his defence, who has deposed that the accused was having some illicit relation with the daughter of the prosecutrix, there was some dispute relating to that relation between the accused & the prosecutrix, and on the ground of such dispute and animosity, the $24 prosecutrix has falsely implicated the accused/appellant in the crime in question. 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced theappellant in the aforesaid manner. 6. I have heard learned counsel for the parties and perused the impygned judgment as also the record of the trial Court. 7. Learned counsel for the appellant argued that evidence of the prosecutrix has not been supported by medical evjdence, the prosecutrix is aged about 40 years and her eyidence needs corroboration from independent sources. The accused & daughter of the prosecutrix were having illicit relation, the prosecutrix has objected the accused and directed that he should not come to her hbuse, even on the date of incident the accused had come to the house of the prosecutrix to meet her daughter on which the prosecutrix quarrelled with the accused and taking opportunity, the prosecutrix has falsely implicated theaccused in the crime in question. 8. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and argued that theevidence of the prosecutrix has been corroborated by medical evidence and evidence of independent witnessessufficient for drawing inference against the appellant. Learned Court below has rightly convicted & sentenced the appellant. 9. In order to appreciate the contentions of the parties, I have examined the evidence adducedon behalf ofthe parties. io.The prosecutrix (PW-2), aged about 40 years, has deposed thatshe is a widow lady, she used to reside in her house along with her three children, just five days before the dateof incident she came from the hospital after surgery of her uterus, on the fatefyl day at about 4 a.m. she came out from her house to answer the call of nature and whileshe was entering into her house after attending the call of nature, she saw the accused hidden behind the doors inside her house, suddenly/the accused closed the doors and caught hold of her, pressed her mouth and committed sexual intercourse on her. She tried to cry for help and also requested the accused that just <^ ^. ..^' '-^ :::l-:sy before few days she had undergone operation, she also requested the accused that she was feeling pain over her abdomen, but the accused committed sexual intercourse on her. At that time, her three children were not present in the house, they were in the house of her sister. Thereafter, she went to her sister's house and narrated the incident to her and then she wenfto the Police Station by auto. After the commission of offence the accused absconded. She lodged the report and also showed the spot to the Police. Her underwear was seized by the Police. ii.Geeta Bai (PW-7), sister of the prosecutrix, has supported the evidence of the prosecutrix and has deposed that on the date of incident at about 5a.m. her sister knocked the door, when she opened the door, the prosecutrix was standing in bow position, her hands were upon her abdomen, she narrated theincident to her that the accused has committed forceful sexual intercourse on her whereupon they went to the Police Station. This witness has further deposed that her sister has narrated theentire incident in the Police Station and lodged the report. Her sister was sent to the doctor. The Potice have seized the underwear of her sister vide Ex.P-10. i2,Ardali (PW-3), rickshaw puller/has deposed that on the fateful day at morning time, while hewas taking out his rickshaw the prosecutrix asked him whether the rickshaw wasvacant on which he said 'yes'. Sister of the prosecutrix told him that rape has been committed upon the prosecutrix, thereafter he took both the sisters to the Police Station and from Police Station to hospital. l3.Dr. Supriti Sharma (PW-5) has deposed that on 17-10-20055he has examined the prosecutrix, the prosecutrix was complaining pain over her abdomen, she told thatshe has been subjected tosurgery of her abdomen, she is a married lady accustomed to sexual intercourse. Slides of vaginal smear of the prosecutrix were prepared & sealed and handedover to the Constabte. This witness has further deposed thatshe has also examined the underwear of the prosecutrix, sealed the same and handed over to the Police. 14.K.N. Tiwari (PW-6), Sub Inspector, has deposed that he has conducted investigation and alsosent the seized articles forchemical analYSis vide Ex.P-14 the report of which is Ex.P-15. ^^ is.The accused was also examined by Dr. Sreedhar Rao (PW-1) who has deposed that he has examined the accused on 5-7-2007 vide Ex.P-1 and found the accused capable to commit sexual inteFCOurse. 16. Radheyshyam (DW-1) has deposed that the accused & daughter of the prosecutrix were having some relation and there was regular quarrel amongst the accused, the prosecutrix & hersjster since last ohe & half years. He has also deposed that there was some incident between daughter of the prosecutrix and the accused who is in custody. He has further deposed that when he asked the prosecutrix about thesame, the prosecutrix told him that the accused is having some relation with her daughter, on which, he suggested for compromise and the prosecutrix told him that she was instrument for sending the appellant to jail on the ground of aforesaid dispute. In para 6 of his cross-examination he has deposed after second incident the accused absconded from the vicinity. l7.It appears from the evidence of Radheyshyam (DW-1) that he is not the witness of anyparticular incident,but he has made omnibus & general statement about some dispute between the parties. is.Defence has suggested the prosecutrix in para 5 of her cross- examination that the accused calls her Mami and because of that relation he used to come to her house, but the prosecutrix has denied the suggestion that there wassome relation of the accused with her. The accused also suggested the prosecutrix that on the date of incident the accused had come to the house of the prosecutrix to meet her daughter, there was quarrel between the prosecutrix & the accused and the persons of the vjcinity have seen the quarrel. The prosecutrix has denied the said suggestion also. Defence has cross-examined the prosecutrix in detail, but she has specifically deposed that on the fateful day evenshe was notin a position to struggle, just few days before the incident her uterus was operated upon, therefore, physically she was not able to resist, she was having pain in her abdomenand even she was not in a position to walk properly. l9.The accused has taken definite defence that on the date of incident he was present at the spot to meet the daughter of the prosecutrix and time of incident is 4 a.m. which was not a normal time orday time where one can presume the presence of any person to meet the childreri of the prosecutrix. The prosecutrix has specifically deposed that on the fateful day her children were not present in her house and she has further deposed that the accused is the person who has committed sexual intercourse with her. Evidence of defence witness Radheyshyam (DW-1) is not related to any particular inddent, even he is not the witnessof any particular incident, but he has heard the things from the accusedjust after the commission of offence. The accused absconded and was arrested after one & half years. 20.The prosecutrix was examined by the doctor immediately, slides of vaginal smear of the prosecutrix were taken, her under wear was examined, sealed and sent for chemical examination. Presence of sperm was confirmed vide Ex.P-15 by the State F.S.L., Raipur over underwear & slides of vaginal smear of the prosecutrix. This is suggestive of the fact she was subjected to sexual intercourse. She has lodged the repprt promptly and the incident was narrated by her to her sister immediately. The rickshaw puller who has taken the prosecutrix to the Police Statjon & hospital has also supported the evidence of the prosecutrix. The prosecutrix is a married widow lady who was staying with her children, however, on the fateful day her children were not present in the hou5e and the prosecutrix had uridergone surgical operation just few days before the incident. She has narrated the incident to other witnesses and lodged the F.I.R. promptly. Commissionof sexual intercourse on the prosecutrix is supported by medical evidence. This is not the case where some other person had committed sexual intercourse and with intent to implicate the appellant the prosecutrix has falsely lodged the report against him. Position of the prosecutrix is not ofan accomplice. Virtually, the prosecutrixis victim of the offence. Corroboratjon is nots/ne qua no/? in each and every case. In the matter of State of Maharashtra v. Chandraprakash Kewalchand Jain {(1990) 1 SCC 550}, the Apex Court has held in para 16 as under:- "16. A prosecutrix of a sexoffence cannot be put on apar with an accomplice. She is in fact a victimof the crime. The Evidence Act nowheresays that her evjdence cannot be accepted unless it is corroborated in material particulars. She is undoubtedlya competent witness under Section 118 and her evidence must receive the same weight as it attached to aninjured in casesof physical violence. The same degree ofcare and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What S6- is necessary is that the court must bealive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this jn mind and feels satisfied that it can act on the evidence of the prosecutrix, there isno rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look forcorroboration. If for some reason the courtis hesitant to place implicjt reliance on the testimony ofthe prQsecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in fhe case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecytrix must necessarily depend on the facts and drcumstances of each case. But if a prosecutrixis an adult and of full understanding the court is entitled to base a conviction on herevidence unless the sameisshown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence................" 2i.In thepresentjcase, evidenceof the prosecutrix is corroborated by chemical analysis report Ex. P-15, evidence of Ardali (PW-3) & Geeta Bai (PW-7) which inspire confidence and the same is trustworthy, sufficient for drawing inference against the appellant. The prosecutrix has specifically deposed that the appellant had entered into her house and committed rape on her against her will & consent. Conviction of the appellant is based on credible and clinching evjdencesustainable under the law. 22.After appreciating the evidence available on record, learned Court below has convicted & sentenced the appellant under Sections 376 & 450oftheI.P.C. 23.As regards the question of sentence, learned Additional Sessions Judge has sentenced the appellant to undergo R.I. for seven years & pay fine of Rs.500/- under Section 376 of the I.P.C. and to undergo R.I. for five years& pay fine of Rs.500/- under Section 450 of the I.P.C. Sentences awarded to the appellant are neither excessjve nor unjust. 24.Taking into consideration the circumstances and commissionof rape on a widow lady within fewdays of her abdominal surgery, the '^ ^^: ^ ^1 1 ^^./ '^^^' appellant does not deserve any sympathy. Sentences imposedupon the appellant are just and proper. 25.Forthe foregoing reasons, I do not find any merit in the appeal, same is liable to be djsmissed and it is hereby dismissecj. Sd/- T.P. Sharma Judge Soma