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