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2009 DIGILAW 243 (CHH)

RAM SINGH YADAW. v. STATE OF C. G.

2009-09-11

PRITINKER DIWAKER

body2009
JUDGMENT 1. This appeal is directed against the judgment dated 27.4.2005 passed by the Additional Sessions Judge, (FTC) Pendra Road, District Bilaspur, in Sessions Trial No. 287/2004 convicting the accused/appellant under Sections 376 (1) and 506 (B) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 200 under section 376 and to undergo rigorous imprisonment for two years and pay fine of Rs. 100 under section 508-B of the Indian Penal Code, with default stipulations. 2. Case of the prosecution in brief is that on 8.6.2004 in the night when the prosecutrix (PW -4) was sleeping with her children, the accused/appellant who happens to be her elder brother in law of the came to her house at about 10-11 p.m., removed her cloths and committed rape on her. Immediately after the incident, prosecutrix narrated the entire story to Sukwariya Bai (PW -7) and thereafter in the early morning to her mother-in-law Phool Bai (PW -6) and husband Ran1esh Kumar (PW -10). On 9.6.2004 FIR (Ex. P-9) was lodged. On 10.6.2006 she was sent for medical examination to Government Hospital, Gaurela vide Ex. P-12 where Dr. Nalni Singh (PW -5) examined her and opined that no sign of resistance was present on her body. Hymen was found to be old ruptured; two fingers easily entered her vagina and she was habitual to sexual intercourse. Accused/appellant was also sent for medical examination to Primary Health Centre, Gaurela vide Ex. P-13 where Dr. N .S. Paikra (PW -1) examined him and opined that he was capable of performing sexual intercourse. Vaginal slides were prepared and sent for chemical examination vide Ex. P-17 and presence of spermatozoa was confirmed thereon. Cloths of the accused were also sent for chemical examination on which too presence of semen was confirmed. After recording the statements of the witnesses and completion of investigation the charge sheet was filed. 3. In order to prove the guilt of the accused/appellant the prosecution has examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his false implication in the case. 4. After affording due opportunity of hearing to the parties, learned Additional Sessions Judge, has convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his false implication in the case. 4. After affording due opportunity of hearing to the parties, learned Additional Sessions Judge, has convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submitted that the statement of the prosecutrix is wholly unreliable as she has not specifically stated about commission of forcible sexual intercourse with her rather she has stated that she was subjected to "Balatkar" by the appellant. He further submitted that her statement that after commission of the offence, there was bleeding from her private part is falsified by the statement of Dr. Nalni Singh (FW -5) who medically examined her as she has categorically stated that hymen of the prosecutrix was old ruptured and two fingers easily entered the vagina and further that she was habitual to sexual intercourse" but she has nowhere stated about the bleeding from the private part of the prosecutrix. He submits that the statement of the prosecutrix to the effect that in the incident while offering resistance to the act of the accused/appellant her bangles were broken as a result of which she sustained injuries has also not been supported by the doctor who examined her. On the contrary, according to the counsel for the appellant, the doctor has stated that no sign of resistance was noticed by her on the body of the prosecutrix. 7. Counsel for the accused/appellant fi.u1her submitted that Phool Bai (pW6) and Sukwariya Bai (PW-7) have also not supported the case of the prosecution and were ultimately declared hostile. Lastly he submits that the appellant has been falsely implicated in the case on account of previous enmity as the mother in law of the prosecutrix was residing with the appellant whereas the prosecutrix was living separately along with her husband. He referred to the statement of the husband of the prosecutrix namely Ramesh Kumar (PW -10) in which he has admitted that there was a long-standing dispute between him and the appellant. 8. He referred to the statement of the husband of the prosecutrix namely Ramesh Kumar (PW -10) in which he has admitted that there was a long-standing dispute between him and the appellant. 8. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the statement of the prosecutrix is absolutely natural and thus fully reliable as she is not required to explain the manner in which the offence of rape was committed. He further submits that even if in the medical report the doctor examining the prosecutrix has not stated about bleeding from her private part or that she had not sustained any physical injury, it will not at all be advantageous to the accused. According to him, in the report of the chemical analyzer (Ex. P -17) presence of spermatozoa was confirmed on the vaginal slides of the prosecutrix and that of semen on the cloths of the accused/appellant. 9. To have a vivid idea about the truthfulness of the statement of the prosecutrix, graphic description of the same appears to be essential. In her statement, she has stated that on the date of incident her husband had gone outside the village and she was all alone in her house along with three children. Accused/ appellant lived in the house of her mother in law situated at some distance. When she was asleep, at about 10-11 O' clock in the night, accused/appellant came to her house, got the door opened, demanded water, asked her to get near him, when she did not do that he himself approached her, tried to catch hold of her hand, when she tried to escape he put the door on latches, when she cried he pressed her neck, threatened to finish her, made her lie down on the ground and thereafter committed rape "Balatkar" on her. She has further stated that as a result of the act of the accused, bleeding started profusely. Accused removed towel worn by him, undid the blouse worn by the prosecutrix. She has further stated that as everybody knows what "Kama" is and she shied in speaking it clearly. Thus what the prosecutrix has stated in her statement appears to be absolutely natural and cannot, by any stretch of imagination, be termed to be lightweight. This apart, it was not a camera trial that she could have been more explicit in giving her statement. Thus what the prosecutrix has stated in her statement appears to be absolutely natural and cannot, by any stretch of imagination, be termed to be lightweight. This apart, it was not a camera trial that she could have been more explicit in giving her statement. In other words, the statement of the prosecutrix is self explanatory and there is no reason to discredit the same. 10. As regards the other limb of the argument of the counsel for the appellant that Phool Bai (PW -6) has not supported the case of the prosecution and turned hostile, it would be apposite to make it clear that though tills witness has turned hostile, she has stated in her cross examination that the prosecutrix had narrated the entire incident of rape to her in the next morning. She has also stated that as the word "Balatkar" appeared to be difficult to pronounce, she did not use this word earlier. Thus it is incorrect to say that the testimony of this witness has not supported the case of the prosecution. In rape cases the fact that the victim was previously accustomed to sexual intercourse, is not a determinative question. On the contrary, the question which is required to be adjudicated is whether the accused committed rape on the victim on the occasion complained of Even if it is hypothetical accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who is on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. 11. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In this case, the statement of the prosecutrix has been supported by the report of the chemical examiner vide Ex. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In this case, the statement of the prosecutrix has been supported by the report of the chemical examiner vide Ex. P-17 which confirms the presence of spermatozoa on the vaginal slides of the prosecutrix and that of semen on the cloths of the accused/appellant. The prosecutrix has also stated in her statement that when she protested against the act of the appellant, he threatened to finish her. 12. After having a closure look of the material available on record including the judgment under challenge, this Court is of the considered opinion that nothing has been elicited by defence to discredit the testimony of the prosecutrix. The judgment impugned as such appears to be well founded and is not liable to be dislodged. 13. Consequently, the appeal being unmerited is sure to meet the fate of dismissal and same is recorded accordingly. Appeal Dismissed.