Sukhal Singh vs State of Chhattisgarh

Hon''ble Mr Justice Pritinker Diwaker

Criminal Appeal u/s 374 of The Code of Criminal Procedure

This appeal has been preferred against the judgment and order dated 31.5.2008 passed by the Additional Sessions Judge, Surajpur, District Sarguja, in Sessions Trial No. 413/2007 holding the accused/appellant guilty under Sections 450, 376(1) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs.500 u/s 450 and rigorous imprisonment for seven years and pay fine of Rs. 1,000 u/s 376(1) IPC, plus default stipulations. Case of the prosecution in short is that on 10.7.2007 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) - a married lady aged about 22 years at the relevant time, to the effect that on 7.7.2007 at about 11 p.m. when she went to her bedroom to sleep, the accused/appellant who was already hiding himself in her house, came over there, pressed her mouth, threatened to finish her in case she tried to raise alarm, tore off her underwear and committed forcible sexual intercourse with her. Further case of the prosecution is that on the date of incident husband of the prosecutrix was not at home and her son too had gone to take dinner in the house of his aunt. On the next day, incident was disclosed by her to one Rameshwar Singh (PW-5) and after arrival of her husband on 9.7.2007, to him also and then the report was lodged. Based on this report, offences u/s 376 and 450 IPC were registered against the accused/appellant, prosecutrix was sent for medical examination and after completion of investigation challan was filed by the police on 21.9.2007.

So as to hold the accused/appellant guilty, prosecution has examined 06 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. Hence, this appeal.

Counsel for the appellant submits that the prosecutrix is a woman of easy virtue and has implicated the accused/appellant in a false case. He submits that two days inordinate delay in lodging the FIR has not been properly explained by the prosecution. He submits that there are material contradictions in the court statement of the prosecutrix and the statement recorded by the police. In addition to this, he submits that medical report of the prosecutrix also not supports the case of the prosecution and the person namely Rameshwar Singh (PW-5) to whom she narrated the incident on the next day has also not supported the case of the prosecution.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that as on the date of incident the husband of the prosecutrix was not at home, the report could not be lodged immediately but as soon as he returned on 9.7.2007 entire incident was disclosed to him by her and then she along with him went to the police station and lodged the report. He submits that as the prosecutrix is a rustic villager, minor contradictions in her statement are but natural and they being insignificant for the disposal of this appeal, have to be ignored. Lastly, he submits that because of the prosecutrix being a married woman, absence of injury on her person is immaterial. According to him, FSL report Ex. C-1 is positive and mentions the presence of spermatozoa on the underwear of the appellant, that of the prosecutrix and the vaginal slides as well. He further submits that Rameshwar Singh (PW-5) has also supported the case of the prosecution stating that the prosecutrix had narrated the entire incident to him on the next date. He submits that there is no evidence on record to show as to why the prosecutrix would implicate the accused/appellant in a false case.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 11 p.m. when she was sleeping, she felt as if someone was sitting over her feet and after waking up when she asked as to who he was, accused/appellant disclosed his name. According to her, she was not aware as to when he entered her house and hid himself there. She has further stated that on that day her husband was not in the house as he had gone to Wadrafnagar in connection with his work and that her seven years old son had been to take dinner in the village itself. Thereafter, according to this witness, the accused/appellant tore off her underwear, pressed her mouth and committed forcible sexual intercourse with her by putting her to threat of her liefe in case she raised an alarm. After completion of the offence, the accused opened the door and fled away and then in the next morning she disclosed the incident to her so-called brother Rameshwar (PW-5) and then to her husband after his arrival a day thereafter. After this, the matter was reported to police vide Ex. P-1. Chandan Sai (PW-2) - the husband of the prosecutrix has stated in his evidence that when he returned from Wadrafnagar, the prosecutrix started weeping and narrated to him the incident of being raped by the accused/appellant and thereafter the matter was reported to the police. According to this witness, in his presence the underwear which the prosecutrix was wearing at the time of incident, was also seized by the police vide seizure memo Ex. P-3. In cross examination also, this witness has stated the same thing as in the examination-in-chief. He however has denied that there was any dispute between him and the accused/appellant and for that he roped him in a false case. Dr. R.S. Singh (PW-3) is the witness who had medically examined the accused/appellant and given his report Ex. P-5 stating that he was capable of performing sexual intercourse. Dr. R.B. Tirki (PW-4) is the witness who had medically examined the prosecutrix and given report Ex. P-7 stating therein that as she was habitual to sexual intercourse, no definite opinion regarding recent intercourse with her could be given. Rameshwar Singh (PW-5) has not made any specific allegation against the accused/appellant. K.K. Bhagat (PW-6) is the investigating officer who has duly supported the case of the prosecution.

Evidence of the prosecutrix (PW-1) though contains certain contradictions yet as regards commission of rape on her by the accused/appellant, it is very specific where the prosecutrix has categorically stated that on the date of incident when she was sleeping, somebody was sitting over her feet and when she when woke up and asked as to who he was, the accused disclosed his name to her and thereafter by pressing her mouth he tore off her underwear and committed forcible sexual intercourse with her and also threatened of life in case any alarm was raised by her. As regards medical report describing the prosecutrix to be habitual to sexual intercourse, she being a married woman such opinion of the doctor becomes irrelevant. This apart, the evidence of the prosecutrix has been duly supported by her husband (PW-2) who has categorically stated that when he returned home, she narrated the entire incident to him and then the report was lodged. He has also stated that the underwear which the prosecutrix was wearing at the time of incident was seized by the police in his presence vide Ex. P-3. This witness has however denied of their being any dispute between him and the accused/appellant on account of which he implicated him in a false case. The minor contradictions in the statement of the prosecutrix are not on material particulars and that being so they are of no help to the accused/appellant. Similarly, the delay of two days in lodgment of the FIR cannot be said to be fatal to the case of the prosecution as the prosecutrix herself has stated in her evidence that as on the date of incident her husband was not at home, it could not be lodged immediately thereafter and as soon as he returned from Wadrafnagar, it was lodged at once without wasting any time. In view of all this, the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above appear to be just and proper and therefore no interference is warranted in the judgment impugned. Appeal thus fails and is dismissed as such. As the appellant is already in jail, no order regarding his surrender etc. is required to be passed.