,,,,<»"»<1 ,l>'..>'"Bil '"n^rfa ;;t^:G' yfy HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I Crimmal Appeal No. 519 of 2005 APPELLANT Ecchendra alias Etendra VERSUS RESPONDENT State of Chhattisaarh Postfor Dronouncement ofthe judgmenton 1^-10-2008 Sd/- T.P. Sharma Judge .;'A ^""^. •'', f.^^Y fii fj 'l ;i'\ ^f' ^ ^—^" -A^ HIGH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon'ble Mr.T.P.Sharma.J. CnminaiAppeaJJMo. 519 of 2005 APPELLANT VERSUS RESPONDENT :cchendra aiias Etendra son of Narbat M^IK'? &^fi^ •"•i^^^i^ ^*^ \/^^yc- "^^E^A^+ .i-if 1 iaiifc/tti ;=\^ow &iw\>uL A.i^ yw(.ii»»,a •o»?a\ii<;iii^ wi yamoaipur, h'oiice Station uongargan, District Rajnandgaon. CG State of Chhattisaarh throuah Police DlstricS Station nuongargam, Rajnandgaon (CG) Ms- Sunita Jain counsel for the apDe!lant. Ms- Sanaita Mishra PL for the respondentfState. CRIMINAL APPEAL SECTION 374(2) OF THE CODE OF CRJM!NAL PROCEOURE, JUDGMENT (t<.1Q.2Q08) The aoDellant has orsfsrred this appesl against the judgment of conviction and order of sentence dated 30-5.2005 oassed by the Ssssions Judae. Rainandaaon in Sessions Tria! No. 198/2004 convicting him for the offence ounishabte under Section 376(1) of the tndian Pena! Code and sentencina to underao riaorous imDrisonment for seven vears and oay fine of Rs. 500.00 in defauit of oavment of fine to further undergo nqorous imDrisonment for one month. 2. The iudament of the trial Court is chatlenged on the ground that in the absence of evidence reaardina identiflcation of the accused/appei'ant as the oerson who committed raDe on the prosecutrix, learned trial Judge has committed an i.lleaaiitv in convictina and sentencing the accused/appetlant as mentioned above. 3. Case of the OTOsecution in brief is that on 25.9.2004 at about 8-9 a.m while prosecutrix Sumitra widow of Mahraram, aged about 50 years, was •2- 'J^ coming from Sambalour to her house at villaae Sathe. accused./aDDel!ant suddenlv came from behind. he!d hsr neck. made her lie on the around and after removina th@ Lunai worn bv hlm, committed forcibte sexual intercourse with her and then fled awav. Thereafter she came to her house. narrated the incident to her son Dharmendra and asked him to ao to SambalDur and cateh the accused but the accused was not fbund In the vnllaae Vlllaae Panchavat was convened and thereafter reoort Ex. P-9 was todged on the next dav Prosecutrix was sent for medica! examinationvide . Ex P-1 A. She was examined bv Dr. (Smt.'! Sushma Kumre PW-5 who submitted the reDort Ex. P-1. Two vaama! slides were orsDared and sent for chemica! examinatlon to the Forensic Science Laboratorv- Her stained petticoat was seized vide Ex.P- 2- Accused/aDDetlant was also medicailv examined by Dr- PradeeD Kumar PW-11. who has stated that on 27 9.2004 the accused was examined by him and was found to be caoabte of havina sexual intercourse. Lunai and underwear of the accused were sent for chemical examination vide Ex P-8- SDot mao Ex. P-12 was Dreoared- Presence of soerm on the Detticoat and vaaina! slides ofthe Drosecutrix was confirmed vide reoort Ex. P-15. 4. After recordina the statements of the witnesses and comDtetion of the investiaation charae sheet was fiied aaainst the accused/aDDeliant in the Court of Chief Judicia! Maaistrate who in turn committed the case to the Court ofSession. Rainandaaon. wherethetriai oroceeded. 5. In order to establish the auilt of the accused/apDellant the prosecution has examined as manv as 12 witnesses. Statement of the accused was also recorded under Section 313 ofthe Code of Crimina! Procedure in which hs denled the material aDDearina aaainst him in the prosecution case and pteaded his innocence and felse implication in the case on account of some land disDute with the dauahter of the Drosecutrix. s 6. Heard counsel for the oarties and Derused the material availabte o" record includina the ludament imDuaned. 7. Counsel for the aoDetlant submits that the Drosecutrix is a mature ladv of 50 vears and she was habitua! of sexuai intercourse. No external or internal iniurv was found on her bodv which shows that she was a consentina oartv arid was not subiected to forcibie sexual intercourse. Even the test identification oarade was not conducted in this dase and the aoDellant has been convicted and sentenced as above onlv on coniectures and surmises without there beina anv clinchina svidence to this effect 8. On the other hand the iudament imDugned is suooorted on behalf of the resDondent/State and it is submitted that the Drosecution has oroved its case bevond reasonable doubt. Hs submits that immediately after reaching villaae. the Drosecutrix lodqed the reoort ofthe offence. Presence of sperm on the Detticoat and vaainal slides of the Drosecutrix confirms that she was subiected to sexual intereourse and had she been a consenting party, she woutd not have lodged the reoort. 9. To estab'ish the auilt of the accused/aDDellant the Drosecution has adduced ocular and medical evidence. PW-1 Sumitra, the prosecutrix has stated that at the time of incident she was on the way to her vlllage Salhe. All of a sudden accused came from behind. held her n@ck. made her lav down, removed his Lunai and committed foreible sexual intercourse with her and then fled awav. Prosecutrix identified him as the resident of locafity of her daughter. Immedjately after reaching village Salhe; she narrated the incident to her son Dharmendra and asked him to go to Sambatpur and inform his sister. Thereafter. her son went to SambalDur along with some other persons of the villaae and after his return therefrom. vi!laae Panchavat was convened and ultimatelv on the next dav the reoort was iodaed. Dharmendra Kumar (PW-21 and Bhamin Bai (PW-3'S have corroborated the testimony of the ys eousssja sqi jeAoajoi/^ 'eouapyuoo ssjiasui [Bjnieu Duieq i.eg uiuieqg £"Add PUB ejpiuajeya g-Af\d Aq psyoaans xyinossoja aqi ^o lueiusieis jeq ssjnoojsiui |enxss siqiojo^ psffliuiuoa pasnooe eq} sseusse|a|e4 jeq jo eBBiuBApe Dui>|ei 'euoie jnaiequies 0104 DUILUOO SBM eys 8|!4fiA 'sjaqio pue uos jsq 04 .tuspioui 84t asopsip pue .jjoaej eq} 8Dpo| 04 jsij jo^ uoiseooo ou serti 81341 Ayea Duguesuoa e ussq eL|s pBH -IUJB|B pssiej pue suo&iaa jaqio Aq uees sem tuspiaui sqi jo }uesuoa jp aseo e iou si siqj. 'ssjnoojstU! jenxss 8|qiojC4 01 peiasjqns sem ays IBLII uijyuoo sspijs IBUIDBA 941 pue leooiuaa j&4 uo ujisas ^o sauasaja jeqiey 'pesnaoe aqi .(suieDe uoiteDeiie esjB^ e yons aaieiu 01 jaq jo^ uoseaj ou sem sjaq} pue mopjM e si xiflnoesojcl 1.1. leg uiuieqa Jewonep jeq qtimAiiuiue 0} enp asBa SS|B^ e ui pesnoae SLjt pateoi|auui sey eys •uoitaiunsse ^o siseq 941 uo pue eoueyo siit psuiuiuioo SBM uo&iaa u»ou>|unsiuos ieq} ps.teis SBII sssseutim 94} ^0 auo|\j pesnooe aqt qij»stUjs< DuiiijBi uo lou sein sqs }uepiouj sqi jsye eouis teij} peuiuipB seij (£-AAd) 'eg uiLueyg jnd|eqiues 10 suosjed 94} MOU>| 400 saop 'sqies 3DB|j!A ya tuepisaj 941 Duieq eqs ieqt peftiuipB sqs e ydejDejea u| pesnooe eqt tnoqe ejjuDui 01 jna|eqiues 01 uos jsq tuss eLjs •ejoisj8L|i pue pssnooe sijt 40 auieu sqt wou>| iou pip eqs luepjoui 10 SLUII 944 ie .tei|i uoReuiiuexs SSOJO SLjt i»9 pUB ^. SMaejDejea ui pguiiupB sey (|.-Md) e.iiiiung "01. psiujyuoo sem uujaas ys sauessja xuinaesoja eiji p sspjis [euiDBA syi pue leooinea sq} p> uoseuiLuexe leoiuisyo uo •jaAsmoj-j •i.-d xg spjA puno^ SBM esjnooj8}ui eiqiojo^ ^0 UDIS ou pue ssjnoojaiui [enxss 0} |eniiqeq se» auuit tUBA8|aj ©41^e sjesA QS inoqe peDe sem oqM xuinoesojd sqi psuiuuexa sqs t?00£6 ZS uo letjt pQyefS seq ejiun>j euiqsns i.ltug; JQ gjsqi puno^ }ou sem pesnooe eqi }nq jna|equies 0} IUSM BJpueLu.ieya uos JSH lueq) o} }uepioui eq} PS}BJJBU xuinoesojd teqi psteis aAB^ (g-/v\d) ujejK(ea P"e (8-AAd) MBu'S |n^|BN 'U-AAd) •113 !4se>j :(f-Md) uiejnpsqx xutnossojd -^- -^ sperm on the petticoat and vaginat slides of the prosecutrix confirms that the Drosecutrix was subjected to sexual intercourse- 12. After aivina ODDOrtunity of hearina to the oarties learned trial Judae has convicted and sentenced the accused as mentioned above. 13. After hearina counsel for the oarties and Derusina the material available on record 1 am of the opinion that the conviction oassed bv the trial Court being based on reliable and clinchinci evidence, does not ca!l for any interference from this Court. 14. As reaards sentence, the accused/aDDellant takina advantaae of the heloless of the Drosecutrix. a widow of 50 vears of aae who was comina from SambalDur alone. subiected her to forcible sexual intercourse. Therefore. sentence awarded bv the trial Court cannot be said to be excessive and the aDDellant does not deserve anv svmpathv from this Court- 15. Conseauentiv. the aDDeal beina devoid of substance is liable to be dismissed and is herebv dismissed. The iudgment impugned convicting and sentencina the accused/aDDeilant as above :s maintained. T.P. Sharma Judge L"tt K;r 1^/^ \^. >< .6 1 ^