IN THE CHHATTISGARH HIGH COURT AT T3TT &CDTTI3 DlLiAO i" U R Crirainal Appeal No. Of 2007 MEMORANDUM OF CRIMINAL APPEAL UNDER APPELLANTS In Jail SECTION 374 (2) OF Cr.P.C. / : 1. Baldau Pfasad S/o Rayji Kurmi, aged about 36 years. :»• /L^. 2. Mahabir S/o Sakharam Yadav, .'^.y':"'-^^^" asreri2fivf<a ^ °° <y- (V 'Gf .•.o-.^'"^^-' 6%^ aged 26 ydars. Both resident of Village Kosla, ^"' Thana Paingarh, Dista-ict Janjgir ^ Champa(6G). VERSUS RESPONDENT Conviction The State of Chhattisgarh, through the District Ma^strate, Janjgir , District Janjgir^Chaxapa (CG). Sentence U/s 376 (2) (g) ofI.P.C. R.I. for 10 years, Fine of ^ ^-e^ <sl^?<• Rs.3,000/-, In default additional R.I. for orie year to each''accused person. T""r'"in"i?" HIGH COURT OF CHHATTISGH AT BILASPUR (Hon. IVIr. Justice Pritinker Diwaker) Criminal Appeal No. 128 of 2007 APPELLANTS Baldau Prasad and another VERSUS . RESPONDENT State of Chhattisgarh. 7^ Post for pronouncement ofjudgment on 8 -01-2010 BBIIitlgll Sd/- Pritinker Diwaker ^ 1;1^:AC lliu B ./^"^ './/""' ^ 1 ..// APPELLANTS RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 128 of 2007 Baldau Prasad and another. VERSUS State of Chhattisgarh. Shri Shailendra Dubey counsel for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ( %.01.2010) This appeal is directed against the judgment dated 10.1.2007 passed by the Special Sessions Judge, Janjgir Champa in Sessions Trial No. 39/2006 convicting the appellants for the offence punishable under Section 376(2) (g) of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for ten years and pay fine of Rs. 3000 each, in default of payment of fine to further undergo rigorous imprisonment for one year. However, the Court below has acquitted them ofthe offence under section 3(2) (5) ofthe Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 2. Case of the prosecution in brief is that on 22.4.2006 at about 5.30 p.m. FIR (Ex. P-2) was lodged by the prosecutrix (PW-1) alleging that when on that day at about 10 a.m. she was returning from the field after providing food to her father, the accused/appellants met her near the field of one Bhukhan Suryavanshi, subjected her to beating, put off her cloths, gagged her mouth with a towel and committed rape on her one by one. Thereafter, the prosecutrix was sent for medical examination to Community Health Centre, Janjgirwhere Dr. (smt.) Rashmi Harihare (PW-10) examined her and submitted the report Ex. P-11. In the medical report it has been opined that though the prosecutrix was complaining pain on her ear, back and chest, but she did not notice ..^:'>' -2- any injury thereon. However, regarding commission of rape on the prosecutrix, the doctor (PW-10) has not given any definite opinion in her report. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 11 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one witness namely Vijay Tiwari (DW-1) wasexamined by the defence in support of its case. i^r 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants for the offences mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellants submits that on account of some dispute regarding purchase of paddy, the appellants have been falsely implicated in the case. According to him, even the medical evidence does not support the case of the prosecution. He further submits that there are contradictions in the statement of the prosecutrix recorded under section 161 of the Code of Criminal Procedure and in the Court statement because in the statement u/s 161 Cr.P.C. she has stated that accused Mahavir had gagged her mouth with towel whereas according to her Court statement accused Baldau had done so. He further submits that the prosecutrix is a lady of lax morals as on the one hand she has stated in her evidence that her husband had left her about 10 years ago and she is living with her parents but on the other hand she has stated that her third child is five years old. He also took the plea of alibi and submitted that on the date of incident the accused appellants were not in the village where the incident is said to have taken place. He further submits that according to the case of the prosecution itself the J^ltiKII.],;^^ ^^'.^irA "i«. I't^?- 2- incident had taken place in a broad day light and that too on the way subject to public movement but she did not raise any alarm to attract the attention of passers-by, and thus according to him the entire story of the prosecution appears to be highly improbable. Counsel for the appellants further submits that the prosecutrix was a lady of easy virtue and the appellants have been implicated by herjust for greed of money by the Government given as compensation to the victims of sexual offences as she being a member of scheduled caste community knew that in such cases after lodging the report an amount of Rs. 25,000 would be given to her. Supporting his arguments counsel for the appellants placed reliance on the decisions of the Supreme Court in the matter of Devinder Singh and others v. State of Himachal Prasad reported in 2003(4) Crimes 120 (SC), in the matter of Dilip and another v. State of M.P. reported in 2002 SAR (Criminal) Suppl. 471 (SC) and in the matter of Rahim Beg and others v. State of U.P. reported in 1972 Cri.L.J. 1260, and submits that the impugned judgment suffers from illegality and material irregularity and therefore is liable to be set aside. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the prosecutrix has categorically stated that when she was returning from her field after providing food to her father, accused/appellants stopped her on the way, subjected her to beating and after gagging her mouth committed forcible sexual intercourse with her one by one. He submits that in this case the prosecutrix has clearly stated as to the manner in which the incident has taken place and therefore, the same being sufficient in itself, corroboration thereof need not be looked for. 8. Having gone through the material available on record and the evidence of the witnesses, it comes to the fore that on the date of incident when the prosecutrix was returning from the field after provieling food to her father, both the accused/appellants stopped "'"'?•-'». •-.f"% -1- her on the way, subjected her to beating, removed her clothes, tied her mouth with the help of towel and committed sexual intercourse with her one by one. The record further reveals that even after commission of rape, both the accused/appellants again subjected her to beating. Evidence of the prosecutrix shows that due to beating, she had received injuries on her cheeks. Though the doctor (PW-10) has denied any such injury as stated by the prosecutrix, Investigating Officer R.L. Bada - (PW-11) has supported the injuries present on the cheek and back of the prosecutrix. Bhavendra Kumar, brother of the prosecutrix (PW-2) has also supported the evidence of the prosecutrix and stated that there was swelling on both her cheeks. True, the incident of rape has not been proved by the doctor (PW-10) but while considering the cases of sexual assault the paramount consideration is the statement of the prosecutrix unless material contradictions and omissions are lurking in it. Moreover, when the prosecutrix is a fully grown up tady and mother of three children, medical report cannot be expected to be supportive of rape. The arguments regarding contradictions in the statement ofthe prosecutrix recorded under section 161 ofthe Code of Criminal Procedure and that of her Court statement to the effect that at one place she has stated that accused Mahavir had gagged her mouth whereas according to the court statement accused Baldau had done so, being trivial in nature cannot be said to be fatal to the case of the prosecution. The argument of the counsel for the appellants of prosecutrix being a lady of easy virtue is turned down aseven assuming her being so does not give a licence to any one to play with her honour. From the overall material available on record what comes out is that taking helplessness of the prosecutrix while she was coming alone after providing food to her father, the appellants committed sexual intercourse without her consent and againstherwill. 9. The aforesaid factual position does not lend itself within the legal framework set out in the preceding paragraphs as the facts of cgses so cited differ from the one in hand for the reason that the •;'r' •5- testimony of the prosecutrix being not prone to suspicion inspires confidence of this Court and corroboration of the same is not felt necessary to be looked for. Thus the evidence of the prosecutrix being self-sufficient does-not make this Court to have a different approach from that of the Court below. Accordingly, the impugned judgment convicting and sentencing the accused/appellants as displayed above being fully justified does not require any interference. 10. Appeal being without merit is liable to have a jolt like dismissal. So is ttie result. __._— 11. Appeal dismissed. Sd/- Pritinker Diwaker 3t(4g~