Chirangilal vs The State Of M.P. on 31 October, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 49 OF 1997
Chirangilal
Vs.
The State of M.P.
*****
None appears for the appellant.
Mr. Subodh Kathar, learned G.A. for respondent/State.
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Present: Hon’ble Shri Justice Sushil Kumar Palo —————————————————————————
JUDGMENT

(31.10.2017)

Law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment but by cross-checking the reasoning of the
evidence on record. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the
Code of Criminal Procedure on a plain reading of sections 385-386 of Cr.P.C.

2. Law does not enjoin that the Court shall adjourn the case, if both the appellant and his lawyer are absent. In the case of Bani Singh and Others Vs. State of U.P., AIR 1996 SC 2439, the
Apex Court while dealing with Section 386 of Cr.P.C held that when appellant and his lawyer are absent on appointed for hearing, the Court is not bound to adjourn the case, but should
dispose of appeal on merits. The dismissal of appeal simpliciter for non-prosecution is not contemplated.

3. In a similar case of K.S. Panduranga Vs. State of Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that it cannot be said that the Court cannot decide a criminal appeal in the
absence of the counsel for the accused, even if the counsel does not appear deliberately or shows negligence in appearing.

4. This criminal appeal is pending since 1997, but none appeared on behalf of the appellant. Therefore, in view of aforesaid enunciation of law, this appeal is being decided.

5. This appeal has been preferred by the appellant- Chirangilal under Section 374 of Cr.P.C aggrieved by the judgment dated 20.12.1996 passed by Special Judge under the SC/ST (POA) Act,
1989, Panna in Special Case No. 32/1996, wherein the appellant has been convicted for offence under Section 450 of I.P.C and sentenced to five years rigorous imprisonment with fine of
Rs.500/- and for offence under Section 376 (2) (G) of I.P.C, sentenced to ten years rigorous imprisonment with fine of Rs.500/- with stipulated default.

6. It is not disputed that the prosecutrix is “Kori” by caste and blind since birth. The appellant/accused used to visit her house. It is also admitted that the police arrested the accused persons.

From the possession of co-accused- Bhaiyan Birha @ Chaturesh, a blue coloured underwear and from the possession of appellant- Chirangilal, a lining underwear were seized.

7. Filtering the unnecessary details, the prosecution case in brief is that on 25.03.1996, at about 10.00 am, the prosecutrix was sitting with Kallu, a village girl of her neighbour at her door
step. Her parents had gone out to market. The prosecutrix is born blind. She is acquainted with the voice of the accused persons. The appellant- Chirangilal is the Village Kotwar to whom the
prosecutrix knew earlier. The accused persons came to her house. Co-accused Bhaiyan Birha asked for “matchbox.” The prosecutrix went inside the house to bring the matchbox. The accused
persons sent Kallu Bai to her house. The prosecutrix brought the matchbox. When she went inside again to keep the matchbox, the accused persons followed her into the house. They caught
her, fell her on the ground, removed her clothes, shut her mouth. The appellant- Chirangilal caught her hands. Co-accused Bhaiyan Birha committed sexual intercourse with her. Later, the
appellant- Chirangilal also committed sexual intercourse with her when co-accused Bhaiyan caught her hands. After commission of the crime, the accused persons left her house. When the
prosecutrix shouted, witnesses- Rusia and Vitthal Bharose came to the scene of crime. The prosecutrix narrated the incident to them. When her parents returned from Bijawar market, they
were informed about the incident. On the same day at about 09.00 pm, the prosecutrix went to the police station and lodged the report against the accused persons. The prosecutrix was sent
for medical examination. The accused persons were also arrested and sent for medical examination.

8. After due investigation, charge sheet has been filed for offence under Section 3 (1) (11) of SC/ST (POA) Act, 1989 (for brevity the “Act, 1989”) and Sections 450 and 376 (2) (G) of I.P.C.

9. The learned Special Judge under the “Act, 1989,” Panna framed charge for offence under Sections 450, 376 (2) (G)of I.P.C read with Section 3 (I) (11) of the “Act, 1989.”

10. The appellant abjured guilt and pleaded innocence. Co-accused Bhaiyan, pleaded that he had deposed in the murder case of Vishwanath Bargaiya in which the members of the family of the
prosecutrix was murdered, therefore, he has been falsely implicated. The appellant- Chirangilal has stated that there was a partition between the father of the prosecutrix Sura and Baldua Kori
wherein he deposed in favour of Baldua Kori. Hence, through the prosecutrix, her father Sura Kori have falsely implicated the appellant.

11. Learned trial Court after adducing the prosecution evidence held that the appellant and co-accused are guilty for offence under Section 450 of the I.P.C and 376 (2) (G) of the I.P.C and
imposed sentence as mentioned above. However, for offence under Section 3 (I) (11) of the “Act, 1989,” the appellant and co-accused were acquitted.

12. On behalf of the appellant, it is stated that learned trial Court failed to appreciate the material on record. The witnesses Sura (PW 2) father of the prosecutrix, Kashi Prasad (PW 4) and
Vitthal @ Pannalal (PW 5) have not supported the prosecution story. The trial Court has also overlooked the factum of delay in the F.I.R. The trial Court failed to appreciate the fact that no sign
of rape was found on medical examination. The medical officer (PW 6) has stated that there was no external and internal injury found on the body of the prosecutrix. The eyewitness- Kallu Bai
(PW 3) has not stated anything against the appellant. Despite the fact that the appellant is a man of thirty years and the sole breadwinner of his family, he deserves to be considered leniently.

13. The proseuctrix (PW 1) is blind from the childhood. She was acquainted by the voice of the appellant- Chirangilal for the appellant often used to visit of her place. She clearly narrates that
the appellant- Chirangilal came to her house when her parents were not present in the house. The statement of Sura (PW 2), the father of the prosecutrix, is relevant here. On the date of
incident, he along with his wife had gone to the market. His brother had a quarrel with the accused persons. The accused/appellant- Chirangilal is the Kotwar of the village. He intimated him
that summons has been received. The witness was asked to pay Rs.12/-. Therefore, he went to bring money from his wife. When he returned, the accused persons were not found in the market.

14. When the accused persons reached the house of the prosecutrix (PW 1), they made sure that the parents of the prosecutrix are not present there. The prosecutrix intimated them that her
parents are not at home. The accused persons asked for matchbox. She brought the matchbox from the house. The prosecutrix was with Kallu Bai (PW 3) when the accused persons reached
there. When the prosecutrix went inside the house to bring the matchbox, the accused persons asked Kallu Bai (PW 3) to leave the place.

15. Kallu Bai (PW 3) has stated that she was sitting with the prosecutrix when the accused persons reached there. Kallu Bai (PW 3) was stitching the old saree of the prosecutrix. The accused
persons asked that where are her parents. The prosecutrix intimated them that they have gone to the market. The accused persons then asked for matchbox. The prosecutrix went inside to
bring the matchbox. At that moment the accused persons took out the needle. The appellant took away the needle and thread from her hand and said to her that some guest has come to her
house, therefore, Kallu Bai (PW 3) left the place.

16. This indicates that Kallu Bai (PW 3) was also the witness when the accused persons and co-accused- Bhaiyan Birha @ Chaturesh came to the house of the prosecutrix. She is also
supporting the prosecutrix with regard to the identification of the accused persons and the fact that the accused persons wanted to be sure that no other person is present at the time of
commission of the offence. According to Kallu Bai (PW 3), later the prosecutrix told her that she was subjected to sexual intercourse by the accused persons. According to the prosecutrix (PW

1), when they used matchbox and returned it to her, she went inside the house to keep it back. At that time, the accused persons followed her inside the room, closing the door from inside,
overpowered her. She was fell on the floor. Removing her clothes, the accused persons committed rape, turn by turn. While one was held her hands the other committed the crime. When she
shouted, Kasiya came to her house. The accused persons fled from there. She sent her younger sister to call her parents. When her parents arrived, she narrated the incident to them. Sura
(PW 2) supports the prosecution story that Ramrati came to the market to call him stating that the prosecutrix is crying. Therefore, he came to the house and found the prosecutrix crying. The
prosecutrix narrated about the incident. The prosecutrix disclosed the name of the appellant- Chirangilal.

17. Sura (PW 2) then went to the police station Kakkarhati along with the prosecutrix for lodging report. From there, they had gone to Police Station Panna where report was lodged by the
prosecutrix.

18. No doubt Sura (PW 2) and Kashi Prasad (PW 4) have been declared hostile but for limited purpose. So far as Sura (PW 2) is concerned, he earlier narrated that the prosecutrix has not told
the name of co-accused- Bhaiyan Birha @ Chaturesh whereas in her statement name of co-accused- Bhaiyan Birha was told by the prosecutrix. Similarly, in the statement of Kashi Prasad (PW

4), he has stated that the prosecutrix shouted at about 9-10 am stating “Daddu- Daddu.” He went to her home. Vitthal (PW 5) was also present there. Prosecutrix was crying. When she was
asked, why she is crying, she narrated that the appellant- Chirangilal and co-accused- Bhaiyan had come to her house. But why they came, she did not disclose. However, in police statement, it
is mentioned that the prosecutrix narrated that both of the accused committed rape with her. Even if considering the statement of Kashi Prasad (PW 4) to be true, according to the prosecutrix
after the arrival of Kashi Prasad (PW 4), the accused persons fled away from the spot. Kashi Prasad (PW 4) also supports the version of the prosecutrix that the accused/appellant- Chirangilal
and co-accused- Bhaiyan had gone to the place of the prosecutrix. That means the arrival of the appellant and co-accused has been proved by the prosecutrix (PW 1) and Kallu Bai (PW 3) and
the departure of the appellant and co-accused was proved by the prosecutrix (PW 1) and Kashi Prasad (PW 4).

19. The statement of Vitthal @ Panna Lal (PW 5) also is very relevant. According to him on that day at about 3 pm, Kashi Prasad (PW 4) informed him that the accused/appellant and Bhaiyan
committed rape with the prosecutrix. It means that Kashi Prasad (PW 4) was aware of the fact that the prosecutrix was ravished by the appellant and co-accused. Vitthal (PW 5) has been
declared hostile. But his statement to that extent is relevant and corroborates the prosecution story.

20. Dr. Meena Namdeo (PW 6) has stated that there was no mark of injury on the body of the prosecutrix and no definite opinion can be given as regarding recent intercourse. But when the
prosecutrix was ravished, the other accused person was holding her. It is but natural that she could not resist and no external injury could be found. The prosecutrix is a grown up lady but
blind by birth and overpowered by the accused persons. So far as absence of mark of injury on her body is concerned, it would be appropriate to say that when two accused persons
overpowered her, she could not resist properly. Therefore, absence of injury cannot be a criteria for presuming that the proseutrix was not subjected to sexual intercourse. When reliance can
be placed on the uncorroborated testimony of the prosecutrix, conviction can be upheld. The evidence of the victim does not suffer from any basic infirmity. In such cases where the statement
of the prosecutrix suffers from basic infirmities and probabilities factor does not support the allegation of rape, then only relying on the statement of the prosecutrix, conviction cannot be
based. Applying the above test to the facts of the present incident, the statement of the prosecutrix do not suffer from any infirmities and even does find corroboration by other evidence.

21. In the case of Bharwada Bhogin Bhai Vs. State of Gujarat, A.I.R 1983 SC 753, the Hon’ble Apex Court has expressed the opinion that “corroboration may be insisted upon when a
woman having attained majority is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct is self preservation or when the
probabilities factor is found to be out of tune.” The ratio in the case Bharwada Bhogin Bahi (supra), therefore, does not apply.

22. Dr. Meena Namdeo (PW 6) obtained the vaginal swab and sent it for medical examination. Accused persons were examined by Dr. G.P. Singh (PW 9) after their arrest. Both were found
competent to perform sexual intercourse. Sura (PW 2) has denied that the appellant- Chirangilal (the Kotwar of the village) had supported Baldua, the brother of Sura, therefore, he has enmity
with the appellant. As there was no enmity between the parties, the chances of false implication is also ruled out. The prosecutrix being a physically handicapped woman, was overpowered and
the accused persons having made sure that the prosecutrix is alone at her house, took the opportunity to commit the crime. The statement of the prosecutrix clearly supported by Kashi Prasad
(PW 4) and the lodging of report on the same day and subsequent narrating the incident to her parent is worthy of credence. Therefore, repelling the contentions of appellant that he has been
falsely implicated due to enmity cannot be accepted. It could be safely said that the statement of the victim does not suffer from any basic infirmity. Hence, no reason to disbelieve her.

23. That being so, the conviction arrived at by the learned trial Court is affirmed.

24. So far as the sentence part is concerned, the appellant- Chirangilal has been sentenced for ten years rigorous imprisonment under Section 376 (2) (G) of the I.P.C and a fine of Rs.500/- has
been imposed and in lieu of fine, he has to undergo additional three months rigorous imprisonment. This is the minimum sentence prescribed under Section 376 (2) (G) of the I.P.C. Once the
appellant has been convicted for offence of rape, he should be treated with heavy hands and undeserve indulgence or liberal attitude in not awarding adequate sentence would be improper.

The appellant and the co-accused committed the heinous crime on a blind lady having taking every precaution. She was alone at her house does not call for lesser sentence. That being so, the
sentence is also maintained. This appeal stands dismissed.

(SUSHIL KUMAR PALO)
JUDGE

awinash

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