APPBLLANT (IN JAIL) HIGH COURT OF CHHATTISGARH AT BILASPUR Criiniaal Appeal No. 262/2007. Jaipal S/o Shri Haasu Ram Gond, aged about 25 years R/o Village Hadiyakbot, P.S. Bhaiyathan (Odgi) Distt. Sui^uja (C.G.). VERSUS RESPONDENT State of Chliattisgarh, through District Magistrate 'Baikiuithpur, Distt. Korea (C.G.). APPEAL UNDER SECTION 374 OF CRIMINAL PROCBDUIBE CODB. (SB :Hon>ble Mr. T.P.Sliarcaa, J.) Present : Shri N. Naha Roy, Advcx;ate for the appellant. Shri R.R. Sinha, P.L. forthe State/respondent. ORAL- ORDER (Passed on 16/09/2008) 1. This cruninal appeal is directed ^ainst the judguient of conviction aad order of sentencc dated 5/2/2007 passed by Sessions Judge Korea, Baikuathpur in Sessions Trial No. 46/2006 where by learaed Sessions Judge after holding fhe appellant guUty of the commission of ttte rape convicted uuder Section 376 of fhe Indiaa Penal Code aad sentenced rigorous unprisoninent for 7 years and fine of Rs. 1,000/- iu default additional rigorous imprisorunent for 6 moaths. 2, The legality aad propriety of the judgment is chatlenged on fhe grouiid ffaat tnal Court has not considered the case of consent which reveals fi'oui the stateinent of fhe prosecutrix aad fheir witnesses. 3. The case of prosecution. in briefis that on 5/5/2006 at about 10 p.m. viUage Siughpatii Belard Police Station Sonhat District Korea Prosecutnx Phooliuati aged about 20 years a married womait was sleeping iu her open courtyard, Her mother in law Maakunwar, sister-in-law Hirobai axid brother ia law Santu were also sleepiag in. sarae courtyaTd. i- Other aiale members were not present in her house. At about 10 p.m. accused cam.e to the open courtyard ofthe prosecutrix. He caught hold her and tiy to took her towards kitchengarden (Bad;) of the Maadhari. Prosecutrix cried on hearing fhe cries her sister iu law and mother in law woke up. Appellaat cominitted sexual iutercourse with her in. the Badi of Mandhan agamst her wiU. and coasent. Her motiier iu law and sister ia ]aw tried to intervene aad inother in law cam.e wifh club thcn appeUant/accused rau away. She injured as a result of offeuce and there was abrasion over the waist aad right elbow. Bangles were broken. She lodged First Information Report ou 7/5/2006 vide Ex. P-1. Her broken baagles were seized vide Ex. P-2. Her uaderwear seized vide Ex. P-3. She was examiaed by Dr. Kalawati Patel vide Ex. P-13, Slide ofvirgiual sinear were prepared, same was seized vide Ex. P-4. AppeBaut was ateo examined by the doctor vide Ex. P-6. His uudei^arment was seized vide Ex. P-8, Sport map was prepared vide Ex. P-9. Accused was arrested vide Ex. P-10. Seized articies were sent for chemlcal examination Vide Ex. P_ll. After recording the stateiaent under Section 161 of fhe Code of Crimtaal Procedure, 1973 and coinpletion of iavestigation chai^e sheet was ffled before fhe Court of Chlef Judicial M^istrate Baikuiithpur who ia tura conmutted fh.e case to fhe Court of Sessions aud finaUy case was tried by Sessions Judge, Baikunfhpur (Korea). 4. In order to estabUsh fhe chai^e against fhe appeHaat/accused prosecution has examiaed as mauy as 12 witnesses, Stateiaent of ttie appellaiit recorded under Section 313 of the Code of Cruniaal Procedure, 1973 where he denied the atlegation appearine against him iunocency and false implication is pleaded. He has also taken defence fhat on ttie ground 3 ofdispute ofthe laad belween father in law offhe prosecutrix and himself he has been impUcated falsely. 5. After affording fhe opportunity of hearing to the parties, leamed trial Court convicted aad sentenced the appeBant as aforementioned. 6. Shri N. Naha Roy, Advocate for the appeUaat and Shri R.R. SiBha, P.L. for fhe State are heard. 7. Judgment mipugned and record ofthe trial'Court perused. 8. Leamed counsel for the appeUaat subinits fhat prosecutrix is a married lady aged about 20 years. She was accustomed to iatercourse. She had not alarmed. AppeUaut took her, She is consenting party and at fhe time of ixicident prosecutrix along with appeUaut weut to Badi, He was conunitted iutercourse oa fhe invitation of prosecutrix. The iacident is seen by inother in law aad sister ia law of the prosecutrix then she has falsely iiapUcated the appellaat aad lodged the false report against fhe appeUaiit. 9. Statement of PW1 prosecutrix Phoohnati, PW2 Maalmnwar, PW3 Hirobai are self contradictoiy and fuU of oiaission aad conteadiction. Statement of prosecutrix has not been corroborated by the medical evidence evea inedical evideace is contradictorv. Prosecutrix has speci&cally stated fhat at tirne of incident She received iajury over his elbow aad back but sanie bas not been found bv the doctor when she was examin.ed inedicaUy. 10. Reliauce has beeu placed on behalfof the appeUaat iu the luatter of Vimal Suresh Kainble v. Chaluverapinake Apal S.P. imd aaother1 reported m2003-AIR (SCW1-0-253 ia which it has held by the Apex Court fhat in absence of corroboiation of fhe stateiaent of the coinplainant fi-oin ' 2003-AIR (SCW)-0-253 Of- medical evidence aad cheinical aaalysis report her luuiatural stateinent sziffers from mfiniu.ly cannot be fhe basis ofconviction. 11. On fhe other hands judgment is supported on behaU" of fhe respondent. Learaed Couusel for the respondent subnuts that appeUaut herself has adinitted fh.at he has coiiimitted intercourse with the prosecutrix but prosecutrix has denied that she has consented or appeUaut conimitted intercourse with her with her consent or wUl. The stateinent of prosecutrix, her niother in law aad sister in law is sufficient for drawiag infercnce that the present coiaplaiaaat is not consentinj party. 12. In onler to coniiect the appellant ia crmie in question, I examuied the stateinent ofwitaesses avaUable on recoid PW1 prosecutrix Phoohnati has stated fbat while she was sleepiag at about 10 p.m. in her open courtyard appellant caiue near her aiid caught hold aad took her towards Bwii offhe Mandhari, She shouted then sister in law Hirobai woke up aml tried to iutervene then her inother in law canie and tried to intervene aad tried to assault the accused fhen after coininitting fhe offence he rau away. FW3 Hirobai who is sister in law of the prosecutrix has stated fhat at 10 p.m. appellaxtt caoie axid took her. Sister in ]aw she woke up on hearfng the souad of prosecutrix, She tried to iatervene but appeUaat assaulted her fhen he shouted then her inofher Mankunwar canie wifh club at the tiaie appellant was coininittiag intercourse with fhe prosecutrix theu he ray away. PW2 Maakunwar has already stated that after heariag the ciy of her daughter Hirobai and her daughter ia law she woke up aud went towards Badi. They were ladies. She canie back to her house aad searched the club and again. went witii club then appeUant ian. away. AppeUaat has speciiicaUy suggested to the prosecutrix ia para 10 of her stateiaent that F Stei^ appeUaat has mamtained physical relation with prosecutrix earlier and on the date of iacident she has iavited fhe appellaat in fhe n^ht aad told hiTn fhat her husband aad fafher ui law wiU not be present iu the house. She herself went wifh appeUant, AppeUant coinmitted intercourse at her instaace but sarae was seen by her inofher iu law and sister in law fhen she made false aUegation. AU the suggestion have been derded by fhe prosecutrix. 13. AppeUaut has not disputed fhat he has not committed iatercourse wifb. tlie prosecutrix. It also reveals fi-oin fh.e stateinent ofPWl Phoolmatir, prosecutrix PW2 Mankunwar, PW3 Hirobai and PW4 Mehilal that appellaut has conunitted intercourse wifh. the prosecutrix when except one chikl male member Saufkum.ar is a^ed about 8 years, no inale laember were present in tiie house of prosecutrix. Prosecutrix herselfis ^ed about 20 years. Her mother ia law is aged about 48 years. Her sister in law is aged about 15 years aud brother iu laro Saatkuinar is aged about 8 years. No ruale meniber were present at fhe tiiae of aUeged iucident. Prosecutrix has stated fhat she received iajury at fhe time of iacident aad there was some fhom and uneven surface where appeUaut coaimitted rape wifh her. The iujury has not been supported by fhe doctor. It appears fi-oin her slatement fhat he has exaggerated in her stateuient about iajuiy. She is inan-ied lady accustoined to uitercourse aud in absence of forceful iatercourse no iajuiy would be possible. This is not a case of assault but a case of rape. Accordin^g to fhe stateinent of prosecutrix no male inember were present there. AppeUaut had taken. the benefit of the helptessness of the prosecutrix aud coiniiutted iatercourse. Statemcnt ofPWl Phoolmatir, PW2 Maakunwar aad PW3 Hirobai reveals, that prosecutrix was not consenting party aad appeUant has couuaitted iutercourse agaiast the consent ofprosecutrix. 14. After appreciating (he evidence available on recoid, learaed trial Court has convicted aad sentenced the appeUaat as aforeiaentioned. Conviction of the appeUant for the offence punishable uader Sectiou 376 of fhe Indiau Penal Code is based on reUable evidence. Trial Court has rightly convicted the appeUant for the offen.cc purushable under Section 376 of fbe Indiaa Penal Code. 15, As regard ttie question of sentence is conceraed learued trial Court has awarded the luituinuni sentence of 7 years with fiue of Rs, l,000/-, TaMag iato consideration the facts that appeUant bas coinmitted ofiFence when no male inember was present iu her house to help the prosecutrix. AppeUaut has taken the benefit of her aad her family members helplessness. He deserves no sympafhy. The appeal bemg devoid of its merits it is Uable to be dismissed and hereby disinissed. Sd/- T-P- Sharma ,<^