^••'-^: ^ CFOOOOOS9269 -^^••.•.-:- ••-:••• .', . • •IN 2HE BIQH GOURI OF HAI2U PRADS3B-A'E:JABffliEOE. Cr.Appeal Ho. ^. ' /L99S ,.' APEBEAAHTs RaiEd.B^i son o;f •S'symaagsl 8pnd BiitiahtiBteasad 2®yea^s/ ' B/o.Ke^patiya P.S.BaBtOla, a K.P. -Versus- HSSPOHDEN'Ti: Sbate of Ma.Stya-Tva.a.eah CB. tfPEAL V/S S&'S) Gr. P.S, r ff^< y.../7 GOHVIOTIOE '/ \?y ^ ^v^f ^ 'y//^\ v' ,i_^iiBi«ati;-fl'"fj^**im<i fum>iu '^ X' U/s. 376 IPG SEH2BiGE R.I. for 10 yeays .^:?1 '1.,i HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminai Appeal No. 126 of 1992 APPELLANT RESPONDENT VERSUS Rai Singh State of Madhya Pradesh, Shri D. N. Prajapati, counsel forthe appeltant, Si-ii-i Pravin Das, Dy. G.A. for the State. CRIMINAL APPEAL UNDER SECTION 374 f 21 OFTHE CODE OF CRSMZNAL PROCEDURE. 3UD6MENT (15.02.2011) The present appeal arises out of the judgment and order dated 26.12.1991 passed by Additlonat Sessions Judge Baikunthpur, Sarguja in Sessions Trial No. 217 of 1998 convicting the accused/appettantunder Section 376 (l) ofIPC and sentencing him to undergo rigorous imprisonment for ten years. 2. Brief facts of the case are that on 18.01.1988, FIR Ex.P- 7 was lodged by the prosecutrix (PW-1), a married lady aged about 26 years alleging that she is a deserted women and is living with her parents. She has alleged that on 17.01.1988 at about 6 p.m. when she was retuming from fieU carrying soil (whicly is used to white wash the houses) along with her companion Indra Kunwgr (PW-2), on the way, the appetlant caught hold of her hair and on being protested he stapped her. Thereafter he threw her on the ground and despite reslstance by her and her friend, he committed forclble sexual intercourse wtth her. On the basis of this FIR, offence under sections 341/34, 323 and 376 of IPC was registered against the accused/appellant Raisingh and the acquitted accused »• '*». ^< ''*-I-—»''^ -2- fulsai and after investigatfon chalian was filed on 7.3.1988. However, the Court betow framed charge against themunder Section 376 (g) of IPC. 3. So as to hold the .accused persons guitty, prosecution has examined 09 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levetted against them and pleaded their innocence and fatse implication in the case. 4. After hearing the parttes the trial Court has acquitted the accused/appellant Raislngh and co-accused Futsai of the offence under Section 376 (g) of IPC but convicted and sentenced the accused./appellant for the offence under Sections 376 (1) of IPC. 5, Shri Prajapati; leamed counsel for the appellant submits that present appears to be a case of falseimplicatlon because of the otd enmity between fathers of the prosecutrix and the appetlant. Me submits that on one occasion the appellant had seen the prosecutrix in an objecttonable conditton with one Kanta Prasad and that ls why the appeilant has been fatsely imptlcated. He submits that medicat report of the prosecutrix also reveals that no injury was found in her private part. Lastly It has been argued that the incident is of the year 1988, therefore the sentence imposed on the appellant may be reduced to the period already undergone by him. . 6, On the other hand supporting the impugned judgment it has been argued by Shri Das, tearned counsel for the State that the prosecutrix (PW-l) has categoricalty deposed as to in what.manner she was ravished by the appeliant. He submits ttiat the eye vyitness to the incident Smt. Indra Kunwar (PW- 2)-while supporting the statement of the prosecutrtx has A-i^ -3- stated that she was subjected to rape in her presence. He further submits that the FSL report Exs.P-14 & P-15 atso supports prosecutlon case and accordlng to the report, spermatozoa has been found on the petticoat of the prosecutrix (article A)/'underwear of the appe!lant (arttele B) and vaginal slides (artjcle C). 7. Meard counsel for the partles and perused the materiat availabte on record including the judgment impugned, 8. Prosecutrix (PW-1) in her Court statement has stated that on the date of incident at about 6 p.m. when she was returning from fietd, the accused/appellant and the acquitted accused Fulsai met her on the way and the appellant caught hold her head however the sald acqultted accused ftect away from the spot. Thereafterthe appellant threw her on the fietd and when she stood up the appetlant slapped her and again threw her on the field but she again stood up and this act was repeated for four times. After throwjng her fourth time on the field, the appellant pressed her leg, upturned her petticoat and sari and committed forcibie sexual intercourse with her. She has further stated that the entire act was done by the appellant despite her protest and her friend (PW-2) had witnessed the entire incldent. At the time of commission of offence her bangles were broken. in cross-examlnation she has clarified that she and her friend Indra Kunwar had gone to the field to bring some soil. She has further clarifled that when she was thrown'-by the appeltant on the fleld for a number bf occasions, shs did cry for help and her friend Indra Kunwar was also asking theappellant not to do anything with her. She has admltted the fact that she is not in tatklng terms with the appeltant but she has denied the suggestion i;that she was not subjected to. sexua) intercourse by the -K- appeliant and she has falsely implicated the appellant on account of enmity. indra Kunwar (PW-2), the companion of the prosecutrix has also supported the prosecution case and has stated that when she and the prosecutrix were retuming; the appettant slapped the prosecutrix by catching her hair and threw her on the field. When the prosecutrix stood up the appellant again slapped her and threw on the fleld. The appellant took the prosecutrix at some distance and when this witness fottowed him, the appeliant threatensd her by saying that if she followed him, he would stab and rape her. Thereafter in her presence the appellant upturned the petticoat andsari of the prosecutrix and forcibly committed sexual intercourse with her for about two minutes and after commi^ion of the offence he teft her. In cross-examination she has denied the suggestlon gtven by the appellant regardlng his false tmplication. Dhiran Singh (PW-3) - father of the prosecutrix has stated that on the date of incldent when he returned his house in the evening saw the prosecutrix weeping and she narrated the entire incident to him and thereafter the report was lodged. in cross-examlnation he has clarified that he is not in talklng terms with the accused/appetlant but himself has stated that after the incident he is not in talking terms with. the appellant. He has also denied the suggestion as given by the-'appeliant regarding false imptication. Suryabhan Singh (PW-4) is a seizure witness of Ex.P-1 by which sari of the prosecutrix was seized has supported the prosecution case. Nadhira (PW-5) is a seizure witness of Exs. P-2 & P-3 has also supported the prosecution case. Ghanshyam Pandey (PW-6) is a -police Constabie who has helped in the irtyestlgation. Dr. Smt. M. Pandey (PW-7) who had medically examined the prosecutrix and given her report Ex.P-5 has not -y- found any intemal or external injury on her. According to this witness no definite opinion can be given about the commission of rape. Ladhuram (PW-8) is a seizure witness of Exs. P-1, P-2, P-3 and P-6. U. R. Diwan (PW-9), the Investigating Officer has supported the prosecution case, 9. Minute examination of the evidence makes it very ctear that on 17.01.1988 the prosecutrix was subjected to rape by the accused/appellant agatnst her wishes and the eye witness Indra Kunwar (PW-2) has dully supported the prosecution case. Statement of these two witnesses inspires full confidence of this Court and there is nothing on record to doubt in it. Further a very prompt report was lodged by the prosecutrix narrating the entire tncident as to in what manner she was subjected to forcible sexual intercourse by the appellant. FSL report Exs.P-14 & P-15 also supports the case of the prosecution where presence of spermatozoa was confirmedon the petticoat of the prosecutrix and underwear of the accused. TTius, the ronviction of the accused/appeltant by the Court below is just and prpper and does not warrant any interference by this Court. 10. Accordingty/ the appeal is partly allowed. Convictton part of the impugned judgment is maintatned. However, considering the facts and circumstances of the case, in particular that the incident had taken ptace in the year 1988, this Court is of the considered opinion that It would be tn the interest of justlce if-.^the sentence imposed on the accused/appellant is reduced to rigorous imprisonmentfor 7 years from that of 10 years as has been done by the Court below. Order accordingly, ' -(%><»-— -§d/- Pritinker Diwakar Judge