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2012 DIGILAW 329 (CHH)

Jhaduram Sahu v. State of Chhattisgarh

2012-12-11

PRITINKER DIWAKER

body2012
ORDER This appeal has been preferred against the judgment and order dated 22-7-2009 passed by Additional Sessions Judge (FTC), Raipur in Sessions Trial No. 58/2009 convicting the accused /appellant for the offence punishable under Sections 450 and 376, IPC and sentencing him to undergo RI for five years with fine of Rs. 500 u/S. 450 and RI for seven years with fine of Rs. 500/- u/S. 376, IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 1-3-2009, FIR (Ex. P-13) was lodged by the prosecutrix (PW-1) - a mentally challenged woman aged about 25 years alleging that on 28-2-2009 when she was all alone in her house, at about 2 p.m. accused/appellant who was her neighbour gained an entry thereto, threw her on the cot and after removing her underwear committed forcible sexual intercourse with her. It is also alleged that when she tried to raise alarm, the accused/appellant gagged her mouth. On hearing her cries, grandmother and sister of the prosecutrix came there and on seeing them the accused/appellant left the spot. Based on this report, offences under Sections 450 and 376, IPC were registered against the accused/appellant and prosecutrix was medically examined by Dr. (Smt) S. Ahluwalia (PW-2) vide Ex. P-1. After completion of investigation, charge-sheet was filed by the police on 1-4-2009 under the same sections and then the Court below also framed the charge accordingly. 3. In support of its case, the prosecution has examined 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Counsel for the accused/appellant submits that the accused /appellant has been falsely implicated in the case on account of some dispute over water. He further submits that statement of the prosecutrix (PW-1), Tirith (PW-5), Kamini (PW-10), Ghasnin Bai (PW-11) and Krishna Bai (PW-12) are not reliable and the Court below has committed an error in convicting the accused/appellant on the basis of the same. He submits that as the accused /appellant is aged about 70 years and has already remained in jail for about four years, the sentence imposed on him may be reduced to the period already undergone by him. 6. He submits that as the accused /appellant is aged about 70 years and has already remained in jail for about four years, the sentence imposed on him may be reduced to the period already undergone by him. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that present is a case where a mentally challenged woman has been subjected to rape by the accused/appellant and therefore the approach taken by the Court below convicting the accused/appellant under Sections 450 and 376, IPC is just and proper. According to the State counsel, statement of the prosecutrix has been duly supported by Dr. (Smt) S. Ahluwalia (PW-2), Tirith (PW-5), Kamini (PW-10), Ghasnin Bai (PW-11) and Krishna Bai (PW-12). 7. Heard counsel for the parties and perused the evidence available on record. 8. While recording the statement of the prosecutrix in camera, it has been noted by the Court below that the prosecutrix appeared to be mentally challenged, she was stammering and was not able to speak properly. To ascertain her mental status, prosecutrix was put certain question and while answering the same she has stated that on the date of incident when she was alone in her house, accused/appellant came there and committed forcible sexual intercourse with her as a result of which she was feeling pain and got perplexed. She has further stated that the incident was witnessed by Kamini (PW-10). In cross-examination, this witness remained firm to what she has stated in the examination-in-chief. Tirith (PW-5) - the father of the prosecutrix has stated that he knew the accused/appellant as well as the prosecutrix and that on the date of incident he received an information that his daughter was not well and when he returned home, his wife told him that she (prosecutrix) was subjected to rape by the accused/appellant. According to this witness, prosecutrix also informed him about the manner in which she was ravished by the accused/appellant. He has stated that the prosecutrix was mentally ill right from her childhood. Kamini (PW-10) has stated that she knew the accused /appellant as also the prosecutrix who was her sister. According to her, while going to the house of her aunt, she saw the accused/appellant inserting his private part into that of the prosecutrix by mounting on her. Incident, according to her, was witnessed by her and her grand-mother. Kamini (PW-10) has stated that she knew the accused /appellant as also the prosecutrix who was her sister. According to her, while going to the house of her aunt, she saw the accused/appellant inserting his private part into that of the prosecutrix by mounting on her. Incident, according to her, was witnessed by her and her grand-mother. Cross examination of this witness contains the same thing as in examination-in-chief. Ghasnin (PW-11) - grandmother of the prosecutrix has stated that prosecutrix was mentally challenged and that on the date of incident when she was going from the house of Bisantin Bai, she saw the accused/appellant committing sexual intercourse with the prosecutrix and after being scolded by her he left the place. Krishna Bai (PW-12) - mother of the prosecutrix has stated that on the date of incident she had gone to her workplace along with her husband and when she returned, she was informed by her mother-in-law about the incident. After reaching home prosecutrix narrated the entire incident and was weeping. Dr. (Smt.) S. Ahulwalia (PW-2) is the witness who medically examined the prosecutrix and gave her report Ex. P-1 stating that she was physically and mentally weak; she was stammering; there was swelling on her libia minora; hymen was reddish and recently torn; there was dry discharge on her vagina and libia minora and her vagina was admitting one finger. She has further opined that the prosecutrix was subjected to sexual intercourse recently. Biswantin Bai (PW-3) and Kejau Yadav (PW-4) have not stated anything specific against the accused/appellant. Dr. S. R. Banjare (PW-6) is the witness who after examination referred the accused/appellant to forensic expert for further examination. Dr. R. K. Singh (PW-7) is the witness who medically examined the accused/appellant and gave his report Ex. P-10 stating that he was not incapable of performing sexual intercourse. Gopal Das Padwar (PW-8) is the Patwari who prepared spot map. Dev Sharan Banjare (PW-9) is the witness who has stated that prosecutrix was a mentally challenged girl and that he accompanied her father for lodging the report. Laxman Ram Giri (PW-13) is the investigating officer who has duly supported the case of the prosecution. 9. Gopal Das Padwar (PW-8) is the Patwari who prepared spot map. Dev Sharan Banjare (PW-9) is the witness who has stated that prosecutrix was a mentally challenged girl and that he accompanied her father for lodging the report. Laxman Ram Giri (PW-13) is the investigating officer who has duly supported the case of the prosecution. 9. Close analysis of the evidence of the witnesses particularly that of the prosecutrix (PW-1) goes to show that on 28-2-2009 at about 2 p.m. the accused/appellant entered her house, threw her on the cot and after removing her underwear committed forcible sexual intercourse with her. Evidence also goes to show that when she tried to raise alarm, the accused /appellant gagged her mouth. FSL report Ex. P-25 also reveals that spermatozoa was found on the underwear and vaginal slides of the prosecutrix. Dr. R. K. Singh (PW-7) who medically examined the accused/appellant and gave his report Ex. P-10 has also stated that he was not incapable of performing sexual intercourse. Thus it is established by the prosecution that the accused/appellant molested the physically and mentally weak prosecutrix. 10. In this view of the matter, this Court is of the considered opinion that the findings recorded by the Court below do not suffer from any illegality or infirmity and accordingly the judgment impugned deserves to be maintained. Appeal being without substance is liable to be dismissed and it is dismissed as such. As the accused/appellant is already in jail, no order regarding his surrender etc. is necessary. Appeal dismissed.