@ CF0000062722 IK 'EHE HIS% COQB3 OE JODIC&IU&E AT JAB roR. ^\5 Cr..^ppeal so, AppellaBt <IB JaJ-L^ ..•-•"' v^-""^s^y^^ A.---" .,......-•••••" .-•••" &esB6adeat _/l999. Kalyansia^i soa of -TeevraKhaa Satnaai, aged 35 years» resident 6f village Hatpaa. P.s. Betla» Bistriet Dgrg, M.P. Vecsus. Sfcate of Badhya Eradesh. Criiaiaal. Appeal under sectioa 374(2)_of ttae Cr,P.C» C^.r\v^-vr 4 FT+"< &» C^»*S+*^•k.-n.rfS^. \ HI6H COURT OF CHHATTES6ARH AT BILASPUR Singte Bench ; Hon'ble Mr. Just-ice Pritinker &iwd<er Criminal ApDect N&. 1219 of 1999 APPELLANT ffnjail) RESPONDENT jjCalyonsingh ^•sys State of A^adhya Pradesh (now Chhattis9arh) Shri H.S. Ahluwalia. counsel for the oppellant. Shri Neeraj Mehta. Panel Lawyer foF the State. CRIMINAL APTCAL UN&Eft SECTION 374f2)OF THE CObE OF CRIMINAt. PROCEOURE JU&eMENT (20.01.20i(^ The appellant in this appeal is challeng^ the (egality, validity and (yop-iety of the Judgmeyit dcc^ed 21.04.1999 passed by the Additional 5essions Judge, Bemetarn in Sesstore Trial No. 239/1995 convicting the occused/appellant under Sectim 376 of The Indian Penal Coele ond sentencing him to undergo ri9orous imprisonment for sevenyears with fine of Rs.500, in default of payment of fme to furrtier undery» rigorous imprisonment for two montha. 2. Facts of the case in brief cre thot on 10.4.1998 FIR (Ex. P-1) was todged by the prosecutrix to the effeet that- on 9.4.1^5 at about 9 pn when the p-osecutrix had gone to attend the call of nort-ure on the bcrek sicte of her house, accused/appellant came from behind, caught ho(d the prosecutrix and thwi dragged her about 100 ft. towwds courtyard and, thereafter, committed sexual intercourse with her against her will. It is further aNeged thoEt' whitecommitting the offence. mouth of the prosecutrix wa» gc^ged by the accused. Prosecutrix made cn ottempt to save hersejf from the clutches of the accused and had also made on ott®npto shout but she could not aicceed in the same, firstly her mwth was gogged by th®(tppetlflnt with his hcnd cnd %eondly orijacent to the house of the iroseeutrix exhtbition of video film was 9oing on, as a result of which nobody could hear her cFies. 3. So as to hotd the accused/appelliaTt' guUty, {rosecution hos exomined 18 witnesses in support of its case whereas on& defence witness hoe also been e?«unmed by the accysesd/appeliant. Statement of the accused/cypellant was also recorded under Section 313 of the Code of Crhninal Procedure in wkich he denied the eharge tevetied ogainst him oind pleaded his innoeenceoaTd false implfea1'i<m 'wtheeQse: 4. After hearing the parties the trial Coirt has conviet-ed and sentenced the accused/appetlant for the offence as mentioned above. Hence this appeal. 5. Counsel for the accusKi/appellffliit aAmits thcrt' tte statanent of the prosecutrix being fultof CQntradictions is not wort'hy of scfe reliance. Aeconjing to him prosecutrix hces falsety impticorted the occused beeausc of the dtsputs pendfrig between the family of the prosecutrix ond th®appellont. He submits that medicd report of the proseeutrix does not support' the prosecution cwe cnid on that grotnd alorre the appellorrt is tiabte to beacquitted. He further submfts thot there is no FSL report in the iresent case and this Jtself proves that the appsttant has not comnwtt'ed eny offCTiee. H® also submits that prosecutrix hoe not suffered even ^n9le ^iS-J-^£^,^ .;CTA~"< A,- ~^. extemal injury ond thus hw entire statement becomes doubtful. 6. On the other hand, counset for the respondent/State supported the impugned judgment and submits that present is a coise where prompt report was lodged by the prosecutrix. t-1e submits that incident had token piace af" about 9 pm on 9.4.t995 and within five hours i.e. 2 wn in the mid ni^it report- was lodged by the prosecutrix. He further submits thort- immediately <rfter the commission of offenee, the prosecutrix has reported the entire incident to her husband and thereofter, after ashort fomlly meeting, a decision wc®tol<en to lodge the report- and then tte report wce lod9ed. He also submits thort- there is no evidence on record to show as to why the prosecutrix has falsely implicort-ed the accused. 7. I have heaird counsel for the pcrMes and perusal the material availabfe on record. 8. Prosecutrix (PW-t), aged about 21 yeors in her court stotement has categorically stated thfft on the fotteful doy she stept along with her husband ot about 6 pn. and at about 9 pm, she had gone to otftend thecall of noture on the back side of her house. ot thct point of time the aecused/appedcint come from behind, cought hold her and drc^ed her for about 100 ft. ond then committed sexual intercourse wjth her fflgainst her will. She stCEtes that crt- the time of commission of offence, she made an ottempt to get herself free from the clutches of T' the cceused but she could not aicceed. She states thct she also raised an alarm but as the exhibition of fitm was ^ing on, nobody could hear hercries, thereaftCT", immediatety she had \ - Bl informed her husband about the commission of offence by The accused ond then the msEtter wcs reported tg her mother-in-lcw and other persons and then a decision was tflken to lodgea report before the poiice. Sh®also st-crt-es thort- in relotion the accused is her brother-in^aw (Jeth). In cross- exomination also the prosecutrix appe<rs to be very fimarrf the appettant coutd not get anythmg which may hetp him in getting the oiccyjitt-at. Statement of the prosecutrtx hes been duly supported by Amreeka Bai (PW-2), who isthe gister-in-taw (Nand) of the pr'osecutrix, This wttness has ccEt-egorieaily stort-ed thort- she, her mother, progecutrix ond husband of the prosecutrix were (rt home, cs ther®wos functiw) in tte house, after taking meal, the other neighbours cnd relotives had 9one to see the film which was being exhibited in tetevteion. She further states that at the time of dinner, os Therewas ''Chhattf function, number of her relorf-ives were there including the occused/appeticuit. She afso states thot accused/qipeltant had taken dinner with her husbond ond one Narendra. She further stort-es that orfter eommteion of offence, the prosecutrix hcri informed her husbflind cnd ter mother about the commission of offence. Though Narendra Kumar (PW-5) hasnot support-ed the prosecution case end has been deelcred hostile but he too has stated thcrt the accused/appetlont hfldl'tftedthe prosecutr'ixan<tasaresu1tof which there woss some dispute in the house. Atotirare (PW-6) has not supported the prosecution coee caid has been declored hostite, 9. Dr. Kamtesh ShrivosfcEvc (PW-9), who had examinCTl the occused/appetlant has CGtt^oricalty stoted that- the ^ accused/appellant was capable of perfonnmg sexud intercourse. Punia Bai (PW-10), mother-in-law of the prosecutrix has fully supperl-ed the ccee of the prosecution. She states as to in wheft mcnner the CTitire incident WCB narrated to her by the proseeutrix immediotety after the incident. Parosrron (PW-12), fatha^in-low of the prosecutrbt has also support'ed the pros^ution coee. 10. &r. (Smt.) Rajshri Devdhar (PW-13), who has excmined the prosecutrix has not found ony injury either m the external or cny privort-e part of the prosecutrix, she hos cat-egorically stat-ed thst no definite opinion of rcq»can be given beccuse the prosecutrb( was habitual to seniat intercouree and was a mcrried lady. Purantat (PW-t5), who te the husband of the prosecutrix, has afsosupport'ed the entire frosecution case. 11. Dhanush Verma (t)W-l) has mcale cm ottempt to show before the Court below thoft thepe was disf&ite between two families, however. in his cross-exaromatien he admits thert- there is no pcrt-icular dispute between tte two families. He also states that on the dort-e of incident, ot about 9 |»n he Irod left the place omd then he has no idea if any thing had happened after 9 pm. 12. On subjecting the evidence on record to close analysis. it is clear beyond shadow of doubt that the |yosecutrix was rayished by the dccused/appellait who unfortunately happens to be her brother-in-low (Jeth). In her evidCTice she has categorically stated thot as to in what manner sh® wffls nwished by the q>pettant. Stat-ement of the prosecutrix hos been duly si^ported by other witnes»scnd there is no iota of \ S!i^w-icK-i -!B^ 'VjSvas <K :^/ evidence to show thort- the ccse of the pposecution is fal^ or the prosecutrix has falsely implicated the accused because of some other reoson. There is no evidence in aipport of the stand taken by the accused/appetlant regarding his false implicotion in the case. The most unfortunort'®and deptorotole aspect of the cose in hond is thort- accused is non else but the brother-in-law (Jeth) of the (roseeutrix herself who has posed in indelible scar on the sacned relotionship between brothw-in-lawY«7e^anddcughter-in-law (Bahu). 13. Having come across the entire p^»s and cons of the matter the only conclusion suitable for the offenders tike appellant herein is the apathy not sympathy. Accordingly, this Court' finds nothing to interfere with the conviction and sentence recorded by the trial Court <md to bl<w a life to the appeal. Appeal being rifeless is dtsmissed. It is being informed thort- the appellant is on bail, he is directed to ajrrender before the concemed trial Court within 30 dcys. Sd/- pritinker Dwiaker Judge b/- \