SinRTs Bench IN THE HIGH COURT'OF JUDICATURE AT BILASPUR CHHATTISGARH Cr.A.No. ,^^ /2006 APPELLANT w,..d0" bf sw Mohan Kumar @ Shivnarayan 'iS/o. Banshlal Aged 25 Years, R/o. Village Govindpur, P.S. Khadganwa, District Korea (C.G.) VERSUS The State of Chhattisgarh Through P.S Khadganwa District Korea (C.G.) CRflUIINAL APPEAL U/S. 374 (2) OF CR.P.C. , ^ ,.^, ^s^ ,<»<py6l u ••q^ ,5.^" RESPONDENT IMII- ..,^: ^. ^syi®fte> i <si^a'£^^t '.& if •'IBJI Yfc :;isssSteg-s^ ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. JusticePritinker Diwaker) Crirninal Appeal No. 577 of 2006 APPELLANT Mohan Kumar alias Shivnarayan VERSUS RESPONDENT State of Chhattisgarh. Shri Rahul Mishra counsel for appellant. Shri Vivek Sharma PL for respondent/State. CRIMINAL APPEAL UNDER SECTION374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (15.03.2010) With the consent of the parties, this appeal is heard finally though it is listed in motion hearing. This appeal is directed against the judgment dated 21.7.2006 passed by Additional Sessions Judge, Manendragarh, in Sessions Trial No. 207/2005 convicting the accused/appellant for the offences punishable under Sections 376 (1), 506-II and 323 IPC and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 1000 u/s 376 (1), rigorous imprisonment for two years with fine of Rs. 500 u/s 506-11 and rigorous imprisonment for one year u/s 323 1PC plus default stipulations. 2. Case of the prosecution in brief is that on 27.3.2005 FIR (Ex. P-6) was lodged by the prosecutrix aged about 40 years alleging that on 26.3.2005 at about 11 p.m. when she had gone to the house of one Jagdish (PW-9) to take groundnut oil, accused/appellant who happens to be her grand son-in-law and one Philip (PW-4) had also accompanied her. While returning, on the way she was subjected to forcible sexual intercourse by the atfcused/appellant who had also hit her head against a stone as a result of which number of injuries were caused to her. 3. So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he denied the charges levelled K-^^':^^^:^^.^^ against himand pleaded his innocence and false implication in the case. This apart, two witnesses namely Raju and Dharampal (DW-1 and DW-2 respectively) were also examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that present appears to be a case of false implication and that the entire story put forth by the prosecutrix allegedly having been raped by her own grand son-in- law prima facie appears to be a fabricated one and therefore the same cannot be believed to base conviction of the appellant under section 376 IPC. Secondly, he submits that the medical evidence also does not support the version of the prosecutrix. He submits that according to the statement of the prosecutrix itself, when immediately after the incident she had become unconscious, lodging of FIR by her on the second day becomes doubtful. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that number of injuries were caused by theappellant on the head of the prosecutrix for which she remained hospitalized for about 16 days and that her statement is duly corroborated by Jagdish (PW-9) and partly by Philip (PW-4) as also by the report given by the Forensic Science Laboratory, his conviction and sentence detailed above being just and proper warrant no interference in appeal. He submits that the defence has not collected any material to shbw that why the appellant has been falsely implicated in this case. ./ ^, 8. Prosecutrix (PW-1) has categorically stated in her evidence that the accused/appellant happens to be her grand son-in-law. According to her, on the date of incident in the evening she had gone to the house of one Jagdish (PW-9) and thinking that while returning it might be late night, she had taken the company of the present appellant and one Philip (PW-4). While she was returning in £-m Su -^. •^•••- .i^' •;!^;=S5'' .^gz^^^, their company, Philip (PW-4) got into his house which lies before that of her. Thereafter, before she could reach home, accused/appellant cai^ght hold of her from behind, gagged her mouth, took her to a nearby tree and committed forcible sexual intercourse with her. When she cried, the accused/appellant had assaulted her with the help of stone as a result of which she had sustained injuries. According to her, she was also threatened by the accused/appellant and despite her cries nobody had reached the spot. She was hospitalized fpr 16 days and in between she was taken to the police station wh,ere the report was lodged by her. Blood stained petticoat and blouse were seized vide Ex. P-8. In cross examination, she stood firm to her statement made in the examination in chief. Dashrath (PW-2), the husband of the prosecutrix has supported the case of the prosecution stating that Philip (PW-4) had informed him that his wife (the prosecutrix) was brutally beaten by the accused/appellant and bleeding profusely. According to him, the prosecutrix had informed him that it was the accused/appellant who had assaulted her and also committed rape on her. In the hospital also, the prosecutrix had informed him of her having been subjected to rape by the accused/appellant. Maan Kunwar (PW-3) neighbour of the prosecutrix has not supported the case ofthe prosecution and has been declared hostile. Philip (PW-4) has stated that after hearing the cries when he went to the spot, he saw someone throwing stone but he could not see him. Thereafter, husband of the prosecutrix was called and at that time the prosecutrix was unconscious and there was injury on her head. Chhay Kumar (PW-5) is the Patwari who had prepared the spot map. Dr. Laxmi (PW-6) who had medically examined the prosecutrix has stated that prosecutrix had informed her that she had attained menopause and no injury was nqticed on her person. Dr. Rameshwar Sharma (PW-7) who hact- examined the injuries of the prosecutrix has stated that there was injury on her head. Jagdish (PW-9) has stated that he was informed by his wife that the accused/appellant had brutally beaten the prosecutrix and after she regained consciousness the prosecutrix had told her that she was beaten by the accused/appellaht and was raped also. Dr. K.R. Ratre ^"'*'%, J/ ..»<<-' .^:sgaS£^2- ^^ (PW-10) who had examined the prosecutrix has found five injuries on her head and advised for x-ray and had also referred her to the lady doctor. F.S.L. report Ex. P-15 confirms the presence of spermatozoa on the petticoat and slides of the prosecutrix and underwear of the accused. 9. Thus the evidence of the prosecutrix clearly shows as to the manner in which she was subjected to rape and beating by the accused/appellant who happens to be her grand son-in-law and there is no reason for this Court to disbelieve the same. Accordingly, the judgment impugned being a well reasoned one does not call for any interference by this Court. 10. In the result, the appeal being without substance is liable to be dismissed. It is accordingly dismissed. Judgment impugned is hereby confirmed. __ _--—--— Sd/- Pritinker Diwaker r,.... &" ./