IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRI. A.NO. cT) /2003 APPEALLANT: Qlt^JAIL; BALMUKUND ©BARRARAOUT, AGEDABOUT 40YEARS, S/0 NANDLAL RAOUT, R/0 VILLAGE BARDARPUR, P.S PUSAUR.DIST. RAIGARH.(C.G) VERSUS RESONDENT: STATE OF CHHATTISGARH, THROUGH POLICE STATION (SC &ST) DIST. RAIGARH.(C.G). CRIMINAL APPEAL UNDER SECTION 374(2) CRIMINAL PROCEDURE CODE.1973. F APPELLANT In Jail RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 109 of 2003 Balmukund @ Barra Raout VERSUS State of Chhattisgarh Present: Shri Vipin Punjabi, counsel for the appellant. Shri Vivek Sharma, PL for the respondent/State. JUDGMENT (29.06.2011) The appeal arises out of the judgment and order dated 11.12.2002 passed by Special Judge, Raigarh in Special Case No.58/2001 convicting the accused/appellant under Section 376 (1) and 506-11 of IPC and sentencing him to undergo R.l. for seven years and pay fine of Rs.5,000/-, in default of payment of fine to further undergo additional R.l. for six months under Section 376(1) of IPC and to undergo R.l. for one year under Section 506-11 of IPC. Both the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 10.06.2001 , F.I.R. Ex.P-6 was lodged by the Prosecutrix (PW-1), a married lady, aged about 35 years alleging in it that on 09.06.2001, when her husband was not at home she was sleeping along with her children in the Verandah of her house. At that time, she felt that somebody is pulling her clothes. She has stated that thereafter she could realize that it is the accused/appellant who was doing so. It is also alleged that after upturning her clothes, the accused/appellant committed forceful sexual intercourse with her. Based on this F.1.R, offence under Sections 376 and 506-11 of IPC and 3(1)(xii) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 was registered. After investigation, challan was filed on 11.07.2001 under the abovementioned Sections. 3. So as to prove the guilt of the accused/appellant, prosecution has examined 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which, he denied the charges levetled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, leamed trial Court has convicted and sentenced the accused/appellant as mentioned in para-1. 5. Contention of learned counsel for the appellant is that present is a case of consent but as unfortunately, the incident was witnessed by Vimla (PW-2), the report has been lodged. He further submits that in the F.1.R, the prosecutrix has alleged that she could recognize the accused/appellant after touching him whereas, in the Court statement, she has stated that she could recognize him after hearing his voice. He further submits that the medical report of the prosecutrix Ex.P-2 does not support the prosecution case and the Doctor has not given any opinion about the commission of forceful sexual intercourse by the accused/appellant. He further submits that the prosecutrix has not made any efforts to come out of the clutches of the accused/appetlant nor she has raised any alarm for her protection. 6. On the other hand, supporting the impugned judgment, it has been argued by Shri Sharma, learned counsel for the State that on 09.06.2001, at about 1 1.00 p.m, the incident had taken place and a very prompt report was lodged on 10.06.2001 at about 11.00 a.m. He further submits that the plea of consent is not availabte to the accused/appellant because in the Court below, no such plea has been raised by the accused/appellant and there, the defence of the accused/appellant was that of false implication. He further submits that as perthe medical report Ex.P-3 given by Dr. N.K. Patel (PW-5), one abrasion was found measuring 1x2/4" on the left side of the back of the prosecutrix. 7. Heard learned counsel for the parties. 8. The prosecutrix (PW-1) in her Court statement has stated that she knew the accused/appellant as he is the resident of her village. she has stated that on the date of incident at about 11.00 p.m, when her husband had gone to one Duje, while she was sleeping, she felt that somebody is pulling her clothes and initially she thought that it is her husband who is doing so, however, when she asked him something and no reply was given, she touched him and then she could realize that the person who was doing the said act is not her husband. She has further stated that by pressing her neck, the accused/appellant threatened her that if she raises cries, she wou!d be killed. She has further stated that upon hearing the voice of the accused/appellant, she could recognize him. She has stated that when she was being subiected to rape by the accused/appe!lant, her mouth was gagged by him by the other hand. She has aiso stated that during the scuffle, her bangles were broken and she sustained injury on her back. She has further stated that the incident had been witnessed by her daughter Vimla (PW-2). She has also stated that in the moon light also, she could recognize the accused/appellant. She has stated that after narrating the entire incident to her husband, the report was lodged and she was medically examined. 9. In the cross-examination, she has further clarified that on account of day being hot, she was ^eeping in Verandah along with her two children. She has categorically denied the fact that she was having any previous relation with the accused/appellant. She has further denied the fact that she made the statement in the Court on the basis of the legal advice given by any lawyer. Sh.e has also denied the fact that she has lodged the report because some money was given to her as she belonged to the category of Scheduled Tribe. The statement of the prosecutrix has been dufy supported by her daughter Vimla (PW-2), aged about 10 years. This witness has categoricatly stated that on the date of incident, she was sleeping along with the prosecutrix and her father was not at home. She has ISSiBi—,..-..^.. iSiti?;^»$sa!) also stated that upon hearing the cries of her mother, when she woke up, she saw the accused/appellant pressing the mouth of her mother and threatening her for life. She has further stated that as to in what position and condition, she saw the accused/appeltant and her mother. Though in paragraph-4, this witness has stated that if somebody has to enter in her house, one has to make a calt and after opening of the door only, one can enter. However, she has stated that she is not aware as to who opened the door of the house on the said date. Manbodhi (PW-3) is the husband of the prosecutrix and in his Court statement, he has stated that on the date of incident, he was not in his house, at about 11.00 -12.00 p.m, the prosecutrix and his daughter came to the place where he was working and informed him about the incident. He has stated that the prosecutrix narrated the entire incident to him in the presence of Keertan and Baiduram (PW-7). He has further stated that on the second day, report was lodged. In cross-examination, various suggestions have been given to this witness but nothing could be elicited from him and he remained very firm. Dr. (Smt) Arti Nande (PW-4), who had medicatly examined the prosecutrix vide Ex. P-2 Tound no internal injury on the prosecutrix and according to her the prosecutrix was habitual to sexual intercourse. Dr. N.K. Patel (PW- 5) had medically examined the prosecutrix vide Ex. P-3 and found one abrasion measurlng 1 x2/4" on the left side of her back. Karam Singh Sidar (PW-6) is the Police Constable, who made certain seizures vide Ex.P-5 and received the report Vide Ex. P-4 and registered the numbered F.1.R vide Ex.P-6. Baiduram (PW-7) who was in the company of the husband of the prosecutrix Manbodhi (PW-3), has supported the prosecution case and has stated that at about 12.00 in the night, he was informed by Manbodhi (PW-3) about the entire incident and thereafter, he himself had gone to the house of the prosecutrix where she narrated the entire incident to him. Bhuneshwar Giri (PW-8), Head Constable took the consent of the prosecutrix for her medical examination vide document P-7. Ajay Kishore Lakda (PW-9) is the Naib Tahsildar who issued the •f^ 1 !| :-^-:s^s-.SSSSS Priya caste certificate vide Ex.P-8 and the resident certificate vide Ex.P-9. Kamal Lochan Kashyap (PW-10) is the Investigating Officer. Ravindra Singh Marhavi (PW-11) has done part of investigation. Bodhram (PW-12) has made seizure of broken bangles of the prosecutrix vide Ex.P-11. Kartikram (PW-13) has helped the investigation. 10. The minute examination of the evidence in particular that of the prosecutrix and her daughter Vimla (PW-2) makes it clear that on 09.06.2001, taking advantage of the helplessness of the prosecutrix, the accused/appellant entered her house, gagged her mouth and by threatening her for life, committed sexual intercourse with her against her wishes. Further more, the accused/appellant had taken the ptea of false implication before the Court below whereas, in this Court, it has been argued that the prosecutrix was a consentlng party. I find no force in the arguments advanced by Shri Punjabi; learned counsel for the appellant that the prosecutrix was consenting party. A very prompt report was lodged by the prosecutrix and her statement has been duiy supported by Baiduram (PW-7), who was in the company of her husband The statement of the prosecutrix inspires full confidence of this Court and there is no reason to disbelieve the same. 11. The overall scrutiny of the evidence makes it clear that the accused/appellant has committed the offence under the charges leveled against him. The statement of the prosecutrix is futty reliable and trustworthy and considering the same, 1 am of the considered opinion that the conviction and sentence of the accused/appellant recorded by the trial Court is in accordance with law and there is no infirmity in the same. Appeai being lifeless is dismissed. Accused/appellant is reported to be in jail and therefore, no order regarding his surrender etc is required to be passed. ^,- .l?0^^t \ o<<ST