9 HIGH COURT OF CHHATTISGARHkBILA$PUR Criminal Appeal No.722 of 2006 APPELLANT: Laiiu Ahir, Sio Shanti Ram Ahir, aged (in Jan) 35 years, R/o Vinage Kurdih (Chalchalchua), Poiice Station Chanda, Di$tt. Sarguja (C.G.) Versus RESPONDENT: $tate of Chhattisgarh, through Police Station Chanda, Distt. Sarguja (C.G.) {CriminaE appeal under Section 3:74 (2) of the Code of Criminai Procedure, 1 973} a if Present: , Mrs. Kirah Jain, counsel for the appeiiant. Miss Sangeeta Mishra, Panei Lawyer for the $tate/respondent. Single Bench: Honlble Mr. TP. Shanna, J ORAL JUDGMENT (Delivered on mm September, 2908) ‘rw 1. This jail appeal is directed against the judgment of conviction and order of sentence dated 31-7—2006 passed by the 2'“ Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.227/2005 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for commission ofr.offence of rape, convicted him under Section 376 (1) of the l.P.C. and sentenced him to undergo R.l. for seven years. 2. The judgment is challenged on the ground that without any credible & clinching evidence, learned trial Court has convicted and sentenced the appellants in the aforesaid manner. 3. Case of the prosecution, in brief, is that on the date of incident i.e. on 17- 12-2004 at about 8 am. in Viliage Chalchalchua, Kurdih, Police Station Chando, Distt. Sarguja, the prosecutrlx (PW-4) went to the field with cattle, at that time, the appellant, who is elder brother of her husband, came to her, he caught hold of her hands, threw her on the land and committed intercourse upon her against her will & consent. Her husband .was not present in the village, he came at about 12‘mid night. She told the incident to him, next day, her husband narrated the incident to the Panch & others. “Ebereafter, the prosecutrix iodged the F.I.R. on 18-12- 2004 at about 5 p.m. She was sent for medical examination. The prosecutrix was examined by Dr. Smt. Lata Goya! (PW-3) vide EXP-3 in which one abrasion of 3" was found over her right knee and she was accustomed to intercourse. Slides of vaginal smear were brepared and sent for chemicai examination. The appellant was also examined by Dr. N.K. Datta (PW-1'), on 20-12-2004 and he was found capable of committing intercourse vide EXP-1. His underwear was seized vide Ex. P-2. Spot map was prepared by the Patwari vide EXP-7. Petticoat of the prosecutrix was seized vide EXP-8. Vaginal slides of the prosecutrix were seized vide EXP-9. The investigating Officer prepared the spot map vide EXP-11.. Seized properties were sent to Forensic Science faEoratory, Raipur. vide EXP-13 and presence of sperm was confirmed on petticoat‘ax vaginal slides of the prosecutrix as aiso on the underwear of tiee appellantvide EXP-1 4. . After recording‘the statements under Section 161 of the Cr.P.C. and after completion of investigation, charge ‘sheet was tiled before the Court of Judicial Magistrate First Class Ramanujganj, who in turn committed the case to the Court of Sessrons Judge Sarguja from where learned 2"“ Additional Sessrons Judge (F T C) Ramanujganj received the case on transfer for trial. . in order to prove the guiit of the accused/appeiiant. the prosecution has examined as many as ten witnesses. Statement of the accused was recorded under Section‘313 of the Cr.P.C. in which he denied the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. . l have heard learned counsel for the parties and perused the impugned judgment, as aiso the record of the trial Court. . lt is argued on behalf of the appeilant that the accused is elder brother of the husband of the prosecutrix and there was previous enmity between the accused & the husband of the prosecutrix. The appeliant has not committed any offence against the prosecutrix, he has been falsely implicated on the ground of enmity. At the time of commissmn of offence, the prosecutrix was with her husband and preSence of sperm on her petticoat & vaginal siides was as a result of sexual intercourse vv< § between the prosecutrix and her husband. The FJR. was lodged after three days of the incident and delay has not been explained. Non- explanation of delay in kodging the FJR. is feta! to the prosecution The prosecutrix has specificativ stated that she has assautted the appellant but no Injury was found on the body of the appellant at the ttme of medtcai examination On the other hand, the judgment is supported on behalf of the State! respondent and it is submitted that the prosecutrix (PW-4) has categorically stated that the appellant has committed rape on her. Her statement inspires confidence: lnprder to appreciate the contentions of learned counsel for the parties, l have examined the evidence available on record The prosecutrix (PW- 4) has stated In her evrdence that at the time of incident she was alone at about 10 a m the appellant came to her threw her down and committed sexual intercourse upon her, at that time, her two years aged daughter was with her. Thereafter, she went to her father-in~law’s house and told the incident to her father-in—law. She stayed there at night and when her husband came, she told the incident to him also. Second:d.ay, they went to the Police Station and lodged the F.l.R. vide EXP-5. She was examined by the doctor and spot map was prepared vide EXP—7. Her terricot petticoat stained with sperm was seized vide Ex.P-8. 10. Baleshwar (PW-5), husband of the prosecutrix, has stated in his evidence that his wifetold the incident to him, they lodged the report and sperm stained petticoat was seized vide EXP-8. Vrind Bihari Yadav (PW-9) has also supported the statement of the prosecutrix. The prosecutrix was examined by Dr. $mt. Lata Goyal (PW-3) who has stated in her evidence that on 20-12-2004 she examined the prosecutrlx and found one abrasion of 3" over her right knee, she was accustomed to sexual intercourse and two slides of vaginal smear were prepared. The appellant was examined by Dr. N.K. Datta (PW-1) vide EXP-1 who has stated that the appellant was capable of committing sexual ‘ intercourse. 11. The prosecutrix (PW-'4) has admitted the dispute of land between the -r appellant and her husband since one year, but she has denied that the appellant has committed intercourse with her consent. She has ’IlmA i ‘ $pecifically stated thatthe appeuant has committed intergourse against, 1:;er wiil, even shehas caused teeth bite injury to theappeliant. The {pirosecutrixvhas lo’dgedthe F.I.R. on, 18-12-2004 i.e. on second day of the incident. She has specificaily stated thai her husband was not i Epiresent in the house, when he came at night, they iodged the report on , 'seicond‘dayi She has denied the suggestion that the appellant has not ,ciommitted rape‘on her_. i 1'2 i The i appeiiant has tried to show thathe has been faiseiy impiicated in the i crime in question on the ground of land dispute betwaen himself & § husband of the prosecutrix. no? presentghe came at 12 mid night. Therefore, it is difticult to hold that on the ground of some land The prosecutrix has specltically‘ admitted ghfgt at the time orincident and on the date of incident, her husband was ‘ elder brother'fo'f her husband dispute, the prosecutrix will implicate the falsely, that too. by taking the risk of her futyre and prestige. it appears from the evidence of the prosecutrix that ;heir: the prosecutrix two yearsoid went daughter, to the field the for appeltant grazing‘her came cattle, to her she and was aftertakihg alone only *thef ginteircourse benefit with of her her' loneliness against her and will helplessness, & consent. committed Evidence, of seiiual the prosecutrix is corroborated by the evidence of her husband and the FIR as also the medical evidence. 13. ln casebfoffence of rape, normally corroboration is not possible, but In thisl case, evidence cf the prosecutrix is supported by the Emedical evidence. Evidence of the prosecutrix is trustworthy and inspires 1 intercourse confidence. with lt is the sufficient prosecutrix to hold against that the her appellant will & consent, has committed thereby apprie‘ciating cominitted the the offence evidence, under teamed Section trial Court 376 has (1) convicted of the I.P.C.‘ the'appellant After as aforementioned. Conviction of the a same is sustainable. ’ i 14. As: regards the question of sentence, the appetlant has committed rape on thje prosecutrix, Who is his‘sister-ln-law & wife of his younger brothen The iappellant was under aniobligation to, provide proper safety to her; byt irirsteadof providing'safety, he'has committed rape onher. He has? ppellant is based on law and g ' \a been sentenced to undergo RJ, for seven years. The appdlant does not deserve any sympathy. 15.The appeal is, therefore, liable to be dismiseed- and it is hereby dismissed. 71‘ 'T.P.sx-;ARMA- indge ‘ $oma L l