Prabhu Lal Banjara vs State of C.G.

T.P. Sharma, J.—This appeal is directed against the judgment of conviction and order of sentence dated 3-9-2007 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Mahasamund in Special Sessions Trial No. 32/2006 whereby and whereunder learned Special Judge after holding the Appellant guilty for commission of offence under Sections 456 and 376 of the I.P.C., sentenced him to undergo R.I. for one year and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for three months and to undergo R.I. for seven years and pay fine of Rs. 3,000/-, in default of payment of fine to further undergo R.I. for six months, respectively.

Judgment of conviction and order of sentence are challenged on the ground that without any iota of evidence, learned Special Judge has convicted and sentenced the Appellant as aforementioned and thereby committed illegality.

Case of the prosecution, in brief, is that on 5-7-2005 at Village Kouhakuda, Police Station Bagbahara, Distt. Mahasamund, the prosecutrix (PW-3) was sleeping in her house after taking her meals, at about 12.30 mid night the Appellant entered into the room of the prosecutrix and caught hold of her and after pressing her on cot, committed forceful sexual intercourse with her. She cried for help on which her brother Silab (PW-4) came along with Gulal, Bedram and Ramadhin to whom she narrated the incident. The prosecutrix lodged the report at about 8 a.m. within eight hours of the incident vide Ex.P-2. Spot map was prepared vide Ex.P-1. Patwari also prepared spot map vide Ex.P-4. The prosecutrix was sent for medical examination vide Ex.P-7 and she was examined by Dr. Seemalata Binkar (PW-9) vide Ex.P-5. Hymen of the prosecutrix was old ruptured and she was accustomed to sexual intercourse. Two slides of vaginal smear of the prosecutrix were taken and sealed. Dr. Seemalata Binkar (PW-9) has also examined the petticoat of the prosecutrix vide Ex.P-8. Her clothes were seized vide Ex.P-6. Vaginal slides were seized vide Ex.P-9. The accused was absconding at that time and Panchnama was prepared vide Ex.P-11. Seized articles were sent for chemical analysis vide Ex.P-10. Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure and after completion of investigation charge sheet was filed before the Special Judge, Atrocities, Raipur.

In order to prove the guilt of the Appellant, the prosecution has examined as many as nine witnesses. Statement of the accused was recorded u/s 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him and pleaded innocence and false implication. The accused has also examined defence witnesses Rajkumar (DW-1) and Jalap Singh (DW-2). Rajkumar (DW-1) has deposed that at the time of incident brother of the prosecutrix was in drunken condition, he quarrelled with the accused, persons of the vicinity came and the prosecutrix was also present. Jalap Singh (DW-2) has also deposed the same thing, but he has stated that just after 10-15 minutes the prosecutrix came to him and told that she has not committed any fault, but her family members are accusing her.

After providing opportunity of hearing to the parties, learned Special Judge has convicted and sentenced the Appellant as aforementioned.

I have heard learned Counsel for the parties and perused the impugned judgment as also the record of the trial Court.

Learned Counsel for the Appellant vehemently argued that the evidence of the prosecutrix does not inspire confidence. Defence has adduced the defence evidence of Rajkumar (DW-1) and Jalap Singh (DW-2) who have deposed that brother of the prosecutrix has assaulted the accused and on the ground of animosity the accused has been falsely implicated at the instance of the brother of the prosecutrix.

On the other hand, learned Counsel for the State/Respondent supported the impugned judgment and argued that the prosecution has proved this case beyond all reasonable doubts. Defence of the accused is not acceptable because on the ground of trivial dispute one would not falsely implicate the accused on the serious charge of rape that too by taking the risk of fate and future of his sister.

In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties.

The prosecutrix (PW-3), aged about 28 years, has deposed in her evidence that on the fateful night when she was sleeping in her room, the Appellant entered into her room and committed rape on her, and when she tried to cry for help, the accused put cloth in her mouth. After commission of rape while the accused was escaping from the spot, he was caught hold by her brother Silab who came after hearing her sounds and thereafter, Gulal and Bedram also came. They beat the accused and narrated the incident to Kotwar, and she lodged the report on the same day vide Ex.P-2. She was examined by the doctor, her petticoat was seized and spot map was prepared.

Silab (PW-4), brother of the prosecutrix, has deposed that on the fateful night he was sleeping in his house, at that time, he heard the sounds of his sister saying - - ? ? on which he went to the room of his sister and caught hold of the accused, his sister narrated the incident to him whereupon he slapped the accused and narrated the incident to Kotwar and others. Report was lodged on the same day morning.

Ramadhin (PW-1) and Gulab Singh (PW-2) had deposed that on the fateful night at about 12.30 mid night after hearing the sound of - - ? ? they came out from their houses and Silab (PW-4) told them that the accused has entered into his house and committed rape on his sister. The prosecutrix has also narrated the incident to them.

Dr. Seemalata Binkar (PW-9) has deposed that on 10-11-2004 she has examined the prosecutrix and found that the prosecutrix is accustomed to sexual intercourse, two vaginal slides of the prosecutrix were taken and her petticoat was also examined. In her cross-examination, she has admitted that if a person commits rape on a woman injury may occur on private part of woman.

Rajkumar (DW-1) and Jalap Singh (DW-2) have deposed that brother of the prosecutrix has quarrelled with the accused at the time of alleged incident. But in cross-examination Rajkumar (DW-1) has admitted that if any incident took place when he came to his house, he cannot say. Likewise, Jalap Singh (DW-2) has deposed that there is animosity between both the parties. The accused has taken specific defence of quarrel at the time of incident, but he has not stated the said fact in his examination u/s 313 of the Code of Criminal Procedure and had stated that the complainant party has demolished his house after quarrelling and his son has contested the elections of Janpad.

Defence has cross-examined the prosecutrix (PW-3) at length. In para 10 of her cross-examination she has admitted that there was no door to her room and the accused is the person who has committed sexual intercourse with her. Defence has suggested to Ramadhin (PW-1) in para 6 of his evidence that brother and father of the prosecutrix have consumed liquor and assaulted the accused. Gulab Singh (PW-2) has also admitted the presence of accused at the time of alleged incident. The prosecutrix (PW-3) has specifically deposed that the Appellant was present at the time of incident. Presence of the Appellant at the time of commission of offence in the house of the prosecutrix is not disputed. The alleged incident took place at about 12.30 mid night and presence of the Appellant in the house of the prosecutrix has not been explained. This is not the case of consent. Defence has not suggested anything to the prosecutrix relating to consent. ''Room of the prosecutrix was without door. In absence of any suggestion of consent, and specific statement of the prosecutrix that the accused has committed rape on her. it is difficult to hold that this is a case of consent.

Factum of presence of the accused in the house of the prosecutrix is supported by the evidence of Ramadhin (PW-1), Gulab Singh (PW-2) and Silab (PW-4), and the prosecutrix (PW-3) has deposed that the accused has committed rape on her. Evidence of the prosecutrix is corroborated by independent sources and the promptly lodged F.I.R. The prosecutrix is a married lady. No external force has been used at the time of commission of the offence, therefore, no injury was possible. Evidence of the prosecutrix supported by the evidence of other witnesses inspires confidence.

After appreciating the evidence available on record, the Court below has convicted and sentenced the Appellant as aforementioned. Conviction of the Appellant is based on reliable and clinching evidence sustainable under the law. The Court below has not committed any illegality in convicting the Appellant under Sections 456 and 376 of the I.P.C. for the offence of rape and house breaking.

As regards the question of sentence, the Court below has sentenced the accused/Appellant to undergo R.I. for one year and pay fine of Rs. 1,000/-under Section 456 of the I.P.C. and to undergo R.I. for seven years and pay fine of Rs. 3,000/- u/s 376 of the I.P.C. Sentences imposed upon the Appellant are neither excessive nor unjust and no interference is called for.

Consequently, the appeal is liable to be dismissed and it is hereby dismissed.