MAHAVEER @ BUDGA Vs. STATE OF CHHATTISGHAR

JUDGEMENT

(1.) THIS appeal is directed against judgment dated 29 -01 -2004 passed by Additional Sessions Judge, Janjgir, District Bilaspur in Sessions Trial No.302/2003. By the impugned judgment, accused/appellant Mahaveer @ Budga has been convicted and sentenced in the following manner with a direction to run the sentences concurrently: - <IMG>JUDGEMENT_239_CGLJ2_2013b1.jpg</IMG>

(2.) CASE of the prosecution, in brief, is as under: Prosecutrix (PW -1) (in purview of Section 228 -A of the Indian Penal Code, name of the prosecutrix is not being mentioned) is a married woman. On 26 -3 -2003, she was sleeping in her house. Her husband Ganeshram Suryawanshi (PW -2) had gone to Naila to earn livelihood and her son Roopnarayan @ Pappu (PW -3), aged about 10 years, had gone out of the house for watching television. The appellant entered the house of the prosecutrix (PW -1) and bolted the door from inside. The appellant threatened prosecutrix (PW -1) of life and committed sexual intercourse with her against her will. Prosecutrix (PW -1) lodged Dehati Nalishi (Ex.P -8). Regular First Information Report (Ex.P -7) was recorded in Police Station, Champa. The prosecutrix (PW -1) was sent to Government BDM Hospital, Champa for medical examination vide Ex.P -11. Dr. Veena Chandra (PW -14) examined the prosecutrix(PW -1) and gave her report vide Ex.P -5, in which, she found that the hymen of the prosecutrix (PW - 1) was old ruptured and she was habitual to sexual intercourse. Slide of vaginal swab was also prepared. The appellant was also sent to the Government BDM Hospital, Champa for medical examination vide Ex.P -12. Dr. R.K.Chandra (PW -15) examined the appellant and gave his report vide Ex.P -6, in which, he found that the appellant could perform the act of sexual intercourse. In further investigation, site map (Ex.P -4) was prepared by Patwari Ramlal Yadav (PW -13). After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Janjgir, who, in turn, committed the case to the Court of Session, Bilaspur, from where, it was received on transfer by Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellant as mentioned above.

(3.) SHRI Gurudev Sharan, learned counsel for the appellant argued that the First Information Report (Ex.P -7) was lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for the offence punishable under Sections 376(1) and 450 IPC. He further argued that the prosecution case is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with a married woman. On close scrutiny of the evidence available on record, possibility of the prosecutrix having being a consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable and the appellant deserves to be acquitted.