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2009 DIGILAW 250 (CHH)

Bhulau v. State of Chhattisgarh

2009-09-17

PRITINKER DIWAKER

body2009
JUDGMENT This appeal is directed against the judgment dated 13.3.2006 passed by the Additional Sessions Judge, (FTC) Kabirdham (Kavardha), in Sessions Trial No. 38/2005 convicting the accused/appellant under Sections 376 and 506 (II) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 5000 under section 376 and to undergo rigorous imprisonment for one year under section 506-II of the Indian Penal Code, with default stipulations. 2. Case of the prosecution in brief is that on 24.5.2005 at about 7 p.m. when the prosecutrix (PW- 6) who apart from being blind by birth is 80 per cent physically disabled also due to the impairment in all her four limbs, was sleeping in her house, accused/appellant came there and after removing her cloths committed forcible sexual intercourse with her. Though the prosecutrix could not see the appellant committing the offence, she had heard his voice while he was threatening her to throw in the river in case she raised an alarm. Further case of the prosecution is that on 31.5.2005 the accused/appellant had again come to the house of the prosecutrix and when he was talking to her grand mother Parvati Bai (PW-8), the prosecutrix on hearing his voice started hurling abuses and said it was the person who committed rape on her 8 days ago there from. Thereafter, the FIR (P-7) was lodged on 31.5.2005. On 1.6.2005 the prosecutrix was sent for medical examination to Community Health Centre, Kawardha vide Ex. P-19 where she was examined by Dr. (Smt.) Premlata Jangde (PW-3) who vide her report (Ex. P-3) opined that the prosecutrix was blind, both her legs were impaired and she was unable to move. She further opined that hymen of the prosecutrix was ruptured and on insertion of two fingers in the vagina of the prosecutrix it was bleeding and she was complaining pain. She also opined that no definite opinion regarding commission of rape could be given. Accused/appellant was also sent for medical examination to Community Health Centre, Kawardha vide Ex. P-14 where Dr. N.K. Yadu (PW-5) examined him and vide his report Ex. P-5 opined that he was capable of having sexual intercourse. Though the vaginal slides of the prosecutrix were prepared and sent for chemical examination, report of the same could not be obtained by the prosecution. P-14 where Dr. N.K. Yadu (PW-5) examined him and vide his report Ex. P-5 opined that he was capable of having sexual intercourse. Though the vaginal slides of the prosecutrix were prepared and sent for chemical examination, report of the same could not be obtained by the prosecution. After recording the statements of the witnesses the charge sheet was filed. 3. In order to prove the guilt of the accused/appellant the prosecution has examined as many as 15 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. 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 and the report lodged by her is inordinately delayed without there being any explanation for the same as the incident is alleged to have taken place on 24.5.2005 whereas the report was lodged on 31.5.2005. She further submitted that the doctor (PW-3) who examined the prosecutrix herself has stated that the rupture of hymen may be due to variety of reasons and no definite opinion about the prosecurix being raped can be given. She argued that the prosecutrix herself has admitted that there was some dispute between the accused/appellant and her father Shankar Lal Jharia (PW-10) who too has admitted the same in his evidence and on account of this dispute the accused/appellant has been falsely implicated. Her contention is that the prosecutrix herself has stated in his evidence that she was never left alone in night hours though during day time she might be required to stay alone, and therefore when she was never left alone the question of rape at 7 o'clock in the night in the presence of her family members cannot be possible. Counsel for the appellant took another defence that according to the Dr. (Smt.) Premlata Jangde (PW-3) the prosecutrix was of unsound mind and therefore her testimony cannot be taken as a gospel truth for convicting the appellant under section 376 IPC. 7. Counsel for the appellant took another defence that according to the Dr. (Smt.) Premlata Jangde (PW-3) the prosecutrix was of unsound mind and therefore her testimony cannot be taken as a gospel truth for convicting the appellant under section 376 IPC. 7. On the other hand counsel for the respondent/State supported the judgment impugned and submitted that looking to barbarous and heinous act of the accused/appellant who ravished a minor physically handicapped girl, the conviction and sentence imposed on him is just and proper and no interference with the same is called for. According to him, Dr. (Smt.) Premlata Jangde PW-3 who medically examined the prosecutrix and Dr. K.L. Dhruv (PW-9) who examined her eyesight and Dr. M.R. Deshpande (PW-14) who examined her disability have stated the age of the prosecutrix to be 15 years on the date of examination. He further submitted that Dr. K.L. Dhruv (PW-9) has stated in his evidence that the prosecutrix is blind since birth. Likewise Dr. M.R. Deshpande (PW-14) has stated in his evidence that both the legs and hands of the prosecutrix are impaired and thus has assessed her disability to be 80 per cent. He further submitted that the prosecutrix has stated in evidence that the accused used to visit her house frequently and she can recognize the people on the basis of voice. This apart, grand mother of the prosecutrix Parvati Bai (PW-8) has stated in her evidence that on hearing the voice of the accused/appellant, the prosecutrix had abused her. This witness has also stated that the accused/applicant requested her by touching her feet to protect him. Thus according to the counsel for the respondent/State, the prosecutrix has categorically stated as to the manner in which the incident has taken place which leaves no room for disbelieving the same and therefore impugned judgment is well founded and need not be dislodged. 8. After hearing the arguments of the counsel for the parties patiently and considering the evidence of the witnesses and other material available on record thoughtfully what comes to the fore is that the act of the appellant is really brutish, beastly, barbarous, heinous and what not painting a pathetic portrait in the psyche of the prosecutrix who has already been played as a toy by the destiny. Admittedly the prosecutrix at the relevant time was in her teens, blind by birth and immobile due to 80 per cent disability in all her four limbs. The accused/appellant on the ill-fated day entered the house of the prosecutrix at about 7 p.m. when she was all alone and quenched his lust and when she raised an alarm he threatened her of dire consequences. When on 31.5.2005 the accused again came to the grand mother of the prosecutrix namely Parvati Bai (PW-8) and was conversing to her, the prosecutrix identifying him on the basis of his voice shouted at him using abusive words saying that it was he who robbed her chastity. That apart, Anand Kumar Banjare (PW-4) has stated in his evidence that in the identification parade where five persons namely Chhotu, Kanhaiya, Lala, Bhulau (the accused) and Faguram were arrayed and made to speak and as soon as the accused started speaking, the prosecutrix caught hold of his hand and identified him to be the person who ravished her. The prosecutrix has also stated in her evidence that in the identification parade she had identified the accused on the basis of his voice from amongst five persons. So far as the argument of the counsel for the appellant regarding the prosecutrix being of unsound mind and thus consequent consignment of her testimony to the dustbin is concerned, this seems to be utterly a jejune and unmerited stand taken by the defence for the reason that the prosecutrix was not subjected to examination by a psychiatrist who could have given his opinion regarding the mental status of the prosecutrix. The plea of false implication at the hands of the prosecutrix seems to be highly improbable for the reason that no woman of common prudence would go to such an extent of implicating one in a case of depraved character at the cost of self respect - the only asset in the Indian society to go ahead in life. As regards the ground of delay in lodging the report, in sex offence it generally stands explained because in Indian society it brings a scandal to the family of the prosecutrix and time is unnecessarily wasted to consult the elders and decide if the scandal should be made public. As regards the ground of delay in lodging the report, in sex offence it generally stands explained because in Indian society it brings a scandal to the family of the prosecutrix and time is unnecessarily wasted to consult the elders and decide if the scandal should be made public. Thus, when the statement of the prosecutrix narrating the trauma descriptively is telling the entire tale, delay in lodging the FIR becomes insignificant. 9. Resultantly, in view of what has been adumbrated above, this Court has no hesitation to say that the judgment impugned passed by the trial Court convicting and sentencing the accused/appellant as mentioned above leaves no loopholes for this Court to interfere with the same. Accordingly, the appeal lacks force and is meted out the fate of dismissal. 10. Thus dismissal is the result.