.»" <•>. '^;F ^^ f-\ - / \~ 1(! iliii m HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J Criminal Appeal No. 1044 of 2000 Appellants Budhudas 1II Eiiiiij li !iS:i B::' i6:i. Respondent Vs. The State of Chhattisgarh. POSTFORPRONOUNCEMENTOF JUDGMENT Sd/- R.N.Chandrakar Judge Sd/- juuuii 2-3' -9-2009 Ap&ellant HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 1044 of 2000 Budhudas, son of Shri Motidas Panika, aged about 50 years, occupation Labour, resident of Litaipali, P.S. Posoure, District Raigarh. Respondent Versus The State of Madhya Pradesh (now Chhattisgarh), through District Magistrate, Raigarh. 1 B! E^^^^^ gltlss'tsgsit^^ 11 Cr[minal_appeal_y/S. 374 (2)_ofthe Cj'iminal Procedyre Code (SB: Hon'ble Mr. Ranganath Chandrakar, J. Present: Shri S.K. Beriwal, counsel forthe appellant. Shri Rakesh Jha, Dy. Govt. Advocate forthe State. JUDGMENT (Delivered on this 23A-)day of September, 2009) The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 3-3-2000 passed by the learned Sessions Judge, Raigarh, in Sessions Trial No. 47 of 1999, whereby the accused/appellant has been convicted under Section 376 read with Section 511 ofthe IPC and sentenced to undergo R.l. forfour years. 2) The case of the prosecution, in brief, is that on 6-2-1999 the prosecutrix Samari Bai (PW/2) lodged the FIR Ex.P/2 at Police Station Pusoure stating that on 6-2-1999 in the morning at 4.00 a.m. when she came out in the courtyard to answer the call of nature, the appellant threw her on the ground and after removing her clothes committed rape on her. At that time her son and daughter were not awaken. In the morning she went to Kotwar Nanhudas (PW/4) to narrate the incident but he was not found, therefore, she informed the incident to his wife. Thereafter, she narrated the incident to Panch and Patel whereupon a Panchayat was held in the village, thereafter the report was ^ tSS'Ba8i8ss .^.> lodged. During investigation, one sealed parcel vide Ex.P/3 and one Dhoti' in which sperm like stains were present, were seized. Prosecutrix and appellant were undergone medical examination. The seized properties were sent to FSL for chemiGal examination. (3) After completion of investigation, charge sheet was filed in the competent court which in turn committed the case to the Court of Sessions. The Sessions Court framedcharges punishable under Section 376 of IPC. The accused abjured the guilt and requested for trial. The learned Session Judge after due trial convicted and sentenced the accused/appellant as mentioned in para 1 of thejudgment. (4) Learned counsel appearing for the appellant submits that there is no definite evidence against the appellant to prove the offence under Section 376 read with Section 511 of IPC beyond all reasonable doubts. The trial Court committed error in holding the appellant guilty for offence punishable under Section 376 read with Section 511 oflPC. The trial Court committed error in convicting the appellant under Section 376 read with Section 51 1 of IPC in absence of any charge, evidence or substantial material on record which resulted into miscarriage of justice. The trial Court ought to have drawn adverse inference and rejected the prosecution case as the witnesses Kotwarain and Bijnahin named in the FIR were not examined. He further submits that the trial Court ought to have seen that the prosecutrix got written an application by Sukhlal and submitted before the Panchayat, but the application was neither seized nor Sukhlal was examined, moreover, a Panchnama signed by 8 persons in the Panchayat was also not produced by the prosecution in the court. The trial Court ought to have seen that prosecution story is unreliable that the appellanVaccused entered the house of the prosecutrix, committed sexual intercourse with her in presence of her newly married daughter and son. The prosecutrix instead of protesting and crying or i,<i''%k <-y"^is ^\^ ^i»:IBSKfBWB' ll^?t^^^?l§^ § ^^ i. 3 k^} •^^ss'^^s^"" narrating the incident to her daughter immediately, waited till morning and went to Kotwar for proper advice. The trial Judge ought to have held that the evidence of Smt. Samaribai PW/2, the prosecutrix is highly improbable that she could not remember when the accused left her house after committing rape on her. The trial Court ought to have rejected the case of the prosecution in view of the medical report and evidence of Dr. Smt. J. Ekka (PW/9). The trial Court committed error in holding that in view ofthe FIR, evidence of Smt. Samari Bai and cogent evidence, it is proved that the accused made attempt to commit rape on the prosecutrix. Thus, the impugned conviction and sentence passed against the appellant is bad in law and the same deserves to be set aside and the appellant be acquitted of the charge. 5) Per contra, learned counsel appearing for the respondenVState argued the case in support of the impugned judgment of the trial court. 6) Having heard learned counsel for the parties, 1 have perused the records of the trial Court and also the impugned judgment. 7) The prosecution in order to prove the guilt against the accused/appellant, examined ten witnesses. 8) PW/2 Samari Bai, the prosecutrix stated in her deposition that on the date of incident in the night she was sleeping with her son on the verandah of her house and whenshe woke up at 4.00 a.m. and went towards courtyard, the accused/appellant who was already present there, threw her on the ground, gagged her mouth and committed rape on her. In the morning she went to Kotwar and narrated the incident to Kotwarin (wife of Kotwar) as the Kotwar was not present. After some time, the Kotwar also came there to whom she narrated the incident. Thereafter, on the advice of Kotwar she narrated the incident to Panch and Patel of the village, whereupon a Panchayat was held in the village in which she and the appellant were present. She further stated that she narrated the whole incident before Panchayat to which the accused denied. Thereafter, she lodged the report at Police Station Pusoure in which '^ she put her thumb impression. The FIR (Ex.P/2) was read over to her and she admitted to lodge the same report. She further stated that after lodging the report, the Police recorded her statement and arrested the accused and seized her clothes vide Ex.P/1. She also admitted that the spot map was prepared by Patwari and she was sent to Raigarh Hospital for medical examination for which she gave her consent. She was cross examined at length but nothing appeared contrary to her deposition and she denied the suggestion that the accused neither enteredinto her house nor committed rape on her. She also denied the suggestionthat the reportwas lodged at theinstance of Kotwar. 9) PW/4 Nanhu Das, the Kotwar corroborated the version of the prosecutrix and stated that the clothes of the prosecutrix were seized vide Ex.P/1. He also corroborated the fact that the prosecutrix came to him in the morning and narrated the whole story whereupon he advised her to narrate the story to Panch and Patel of the village. He further stated that she narrated the same story before the Panch and Patel of the village. On asking by the Panchas, the appellant admitted his mistakes and sought for apologies to the panchas and the prosecutrix with folded hands. Thereafter, he was asked by the panchas to lodge the report as the matter was not being decided by the panchyat. Hefurther stated that he alongwith the prosecutrix went to Police Station Pusoure where the prosecutrix lodged the report against the appellant. In his cross examination he denied the suggestion that no saree was seized by Police before him. This witness himself stated that the saree of the prosecutrix was seized by Police after a new one was brought and given to the prosecutrix. In the cross examination of this witness nothing appeared contrary to the prosecution story by which his testimony can be held unreliable. 10) PW/5 Anand Ram also corroborated the testimonies PW/2 and PW/4 and stated that he was also a memberof the Panchayat in which the prosecutrix stated that she called the Panchayat because the appellant committed rape on her. On this, the appellant denied the allegation but S'S'SS%>: IBS';*giSSST?s' ^ admitted that he had gone to the house of the prosecutrix at about 4 -5 a.m. In his cross examination, this witness remained consistent and unrebutted on material point and stated that the prosecutrixwas advised to lodge the report in Police Station by the Panchayat as she stated that the rape was committed on her by the appellant and she was ready to undergo medical tests. 11) The statements of the prosecutrix and other witnesses ( PW/2, PW/4, PW/5) are also corroborated by PW/10 R.K. Singh Rana, Investigating Officer who deposed that on 7-2-1999 he registered the FIR Ex.P/2 under Section 376 against the appellant on the basis of oral report given by the prosecutrix in Police Station, Pusoure in which he put his signature at portion "A to A" and obtained thumb impression ofthe prosecutrix also. He categorically stated that he sent the intimation for registration of crime to JMFC, Raigarh vide Ex.P/12, obtained consent of prosecutrix vide Ex.P/13 for her medical examination and after obtaining permissionfrom SDM he sentthe prosecutrix for medical examination to Government Hospital, Raigarh, vide Ex.P/15 at the back side of which the Doctor given her report Ex.P/1 0. He further stated that on 9-2-1999 he sent the appellant to Primary Health Centre, Pusoure, for medical examination of his private part. He also stated he seized the clothes of the appellant and the prosecutrix and sent the same for chemical examination to FSL, recorded the statements of the witnesses as stated out by them, arrested the accused and after completion of investigation submitted the charge-sheet before the Court. In cross examination of this witness, nothing was pointed out by the defence side on the basis of which the prosecution story can be disbelieved. 12) PW/6 Dr. R.N. Mandavi, the Assistant Surgeon, Primary Health Centre, Pusoure stated in his deposition that he examined the appellant on 9-2-1999 vide Ex.P/4 and found him competent to perform sexual intercourse. He admitted his report Ex.P/5 and stated that on examination of "Dhoti" worn by ^ the appellant at the time of incident, he found some stains and advised for chemical examination of the same. 13) PW/9 Dr. J. Ekka, the Lady Surgeon, K.G. Hospital, Raigarh, stated in her deposition that on examination of the prosecutrix, she found no injury on her private part and she was on her menstrual period, therefore, no definite ODinion could be given regarding rape as she was a widow having two children. She gave her report vide Ex.,P./10, prepared slides ofthe vaginal swabs ofthe prosecutrix and advised the same including the seized saree to be sent for chemical examination to FSL. 14) Ex.P/21 is the report of FSL received by the Investigating Officer (PW/10)in which it has been mentioned that human sperm was found on article "A" which is the saree seized from the prosecutrix worn at the time of incident. 15) In view of the aforesaid, it is clear that the statement of the prosecutrix is fully corroborated by the FIR and the witnesses to whom the incident was narrated immediately after the incident. In the light of the report of FSL (Ex.P/21) and medical report of the appellant ( Ex.P/4) it is clear that the prosecution has clearly proved the offence against the appellant beyond all reasonable doubt as the human sperm was found on the saree of the prosecutrix, worn at the time of incident though she was a widow. It is also apparent that the FIR was lodged against the appellant immediately after the incident. Thus, it is established by the prosecution that it was only the appellant who committed the offence. 16) Learned counsel for the appellant has placed his reliance in a decision of Hon'blethe SupremeCourt in the matter of Naravan @ Naran vs. State of Rajasthan, 2007 AIR SCW 2732, but the facts and circumstances of the case are totally different from the case in hand as it has been considered by Hon'ble the Supreme Court that the testimony of the prosecutrix was full of material contradictions and not supported by the lady to whom she narrated the entire incident and slept in her house on fateful night. Thus, the case law relied upon by the learned counsel for the appellant is not applicable to the facts of the present case. 17) Having considered all the facts and circumstances of the case, 1 am of the considered opinion that the trial Court has rightly convicted and sentenced the accused/appellant under Section 376 read with Section 511 ofthe IPC and no interference is called for by this court in the impugned judgment of the trial Court. 14) For the foregoing, the appeal deserves to be and is accordingly dismissed. Sd/- R.N. Chandrakar Judge ^ Raju