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Shatrughan vs State 26 Cra/1032/2001 Ku.Kiran @ … on 5 December, 2019

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 758 of 2001

Order reserved on 09.08.2019

Order pronounced on 05.12.2019
Shatrughan, S/o. Salikram, aged about 40 years, R/o. Village
Kesala, P.S. Pamgarh, CG. —- Appellant

Versus

State of Chhattisgarh through Station House Officer, Police
Station Pamgarh, CG. —- Respondent

For Appellants : Ms. Sharmila Singhai, Advocate
For State/ Respondent : Mr. Ishan Verma, PL

Hon’ble Smt. Justice Vimla Singh Kapoor

CAV Order

This appeal is directed against the judgment of conviction and

order of sentence dated 31.05.2001 passed by the Additional

Sessions Judge, (FTC) Janjgir in Sessions Trial No. 94/1998 holding

the accused/appellant guilty under Section 376 IPC and sentencing

him to undergo RI for 7 years.

2. Case of the prosecution in brief is that on 06.12.1997 at about

11 AM when the prosecutrix (PW-1) a blind girl aged about 17 years

was in her house along with her younger sister Kamal Bai, and

younger brother aged about 3 years, accused/appellant came there,

sent her sister for getting gram by giving her Rs.10, caught hold of

her hand, took her inside the house and committed forcible sexual

intercourse with her by throwing her down. Thereafter, the FIR (Ex.P-

7) was recorded by a Police official (PW-6) on being disclosed by the
prosecutrix under her thumb impression on the next day. After

medical examination of the prosecutrix and conclusion of

investigation, charge sheet was filed against the accused/ appellant

under Section 376 IPC followed by framing of charge accordingly.

3. Learned Court below by judgment impugned dated 31.05.2001

convicted and sentenced the accused/appellant as described above.

Hence this appeal.

4. Counsel for the accused/appellant submits that though no

cogent evidence showing rape being committed on the prosecutrix

has been adduced by the prosecution, Court below has erroneously

arrived at the conclusion of holding the accused/appellant guilty

under Section 376 IPC which is bad in law and therefore, liable to be

set aside. She further submits that even the medical evidence does

not support the case of the prosecution. Reliance is placed on the

decisions of the Apex Court in the matter of Hemraj Vs. State of

Haryana (2014) 2 SCC 395; in the matter of Narendar Kumar Vs.

State (NCT of Delhi) (2012) 7 SCC 171 and in the matter of Lalliram

and another Vs. State of MP (2008) 10 SCC 69.

5. On the other hand, learned Counsel for the respondent/State

supports the judgment impugned and submits that it has been

passed after consideration of all relevant materials in its proper

perspective and therefore, there is no scope in this appeal for

interference with the same.

6. Heard counsel for the parties and perused the material on

record.

7. From the evidence of prosecutrix (PW-1) and that of her sister

Kamal Bai (PW-2) it is apperant that on the date of incident the

accused/appellant had come to her house and after giving Rs.10 to

PW-2 he asked her to go out and get gram for him. The prosecutrix is

also stated to have known the accused on the basis of his voice.

Subsequently, when PW-2 went to the nearby shop, the

accused/appellant took the prosecutrix in the veranda, threw her

down and committed forcible sexual intercourse with her in spite of

cries being raised and protest made by her. From the evidence of

prosecutrix it also appears that by the time her sister PW-2 returned

home, the accused/appellant had run away after commission of rape

on her. Evidence of PW-2 also shows that when she returned home,

the prosecutrix told her as to why she had left her alone and also

disclosed to her of being ravished by the accused/appellant. Had the

sexual intercourse between the accused and the prosecutrix been

out of consent, there was no occasion for the prosecutrix to disclose

the same to her sister (PW-2) after she return home from the shop

because by the time she reached home the accused had already

completed his act and come out of her house. If it was a case like

that, prosecutrix would have chosen to keep mum but it is not the

case here. Record also shows that when the accused/appellant was

involved in the commission of offence, she had offered protest by

abusing, scratching and by throwing her legs in the air but the

accused/appellant did not budge and got up only after his act was

over. From the evidence of PW-2 it is also clear that when she got

back after getting gram, the prosecutrix was found weeping and told

her about the act of the accused/appellant in detail. Though the
medical evidence speaks of prosecutrix being habitual to sex and

absence of injuries on her person yet the act of the

accused/appellant in sending PW-2 out and then committing forcible

sexual intercourse with her against her will and without her consent is

out of question in this case. No previous enmity has been brought on

record on the basis of which it could be said to be a case of false

implication. Though there are minor contradictions and ommissions in

the statement of the prosecutrix yet on material particulars she has

been fully consistent and therefore, there is no occasion for this Court

to disbeilve or discard the otherwise consistent testimony of the blind

prosecutrix. This Court is not convinced as to why a blind girl would

speak against the accused/appellant falsely by exposing her own

character and thereby imperil her long future lying ahead for being

lived bearing an indelible scar on her most cherished possession i.e

her dignity, honour, reputation and not the least her chastity. Rape is

not only a crime against the person of a women but it is also a crime

against the entire society. It is a settled position of law that the

statement of prosecutrix alone would be well enough for proceeding

against the accused if it remains consistent on material particulars as

to the commission of rape on her. This is what is the case here. This

Court does not find any reason to disbeileve the version of the

prosecutrix in narrating her pathatic experience she was subjected to

at the hands of accused/appellant who played with her character

taking advantage of her blindness. Mother (PW-9) and father (PW-7)

of the prosecutrix have also stated that after they returned home, the

prosecutrix informed them as to the manner in which she was

ravished by the accused/appellant. The judgments referred to above
sought to be taken support of, being altogether on different footing,

are not applicable to the case in hand where a blind prosecutrix has

been subjected to forcible sexual intercourse by the accused/

appellant. Absence of injuries on the person of the prosecutrix and

her hymen being old torn as has been opined by the doctor

conducting her medical examination cannot be of any advantage to

the accused/appellant when she has narrated her ordeal in

categorical terms. Thus in view of above the act of rape alleged by

the prosecutrix against the accused/appellant does not seem to be a

consensual one.

8. In aforesaid view of the matter, the conviction of the

accused/appellant under Section 376 IPC being strictly on the basis

of evidence on record cannot be said to be at fault and being so the

judgment impugned is hereby maintained. Order accordingly.

9. Appeal thus being without any merits is liable to be and is

hereby dismissed.

Sd/-

(Vimla Singh Kapoor)
Judge

Jyotishi/Pawan

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