JHAMMANLAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against judgment dated 26-3-2004 passed by 9th Additional Sessions Judge (FTC), Raipur in Sessions Trial No. 336/2003. By the impugned judgment, accused/appellant Jhammanlal has been convicted and sentenced in the following manner: Conviction Sentence Under Section 376 IPC Rigorous imprisonment for 7 years and to pay fine of L 3,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year.

(2.) Case of the prosecution, in brief, is as under: On 13-8-2003, at about 7 P.M., Parvatibai (PW-2), who is wife of Pancham Sahu (not examined) lodged First Information Report (Ex. P-5) in Police Station Gariyaband that she was residing in Village Ghutkunawapara and was working as a labourer. Her daughter prosecutrix (PW-1) was studying in 6th standard, but due to her being mentally retarded, her study was discontinued. On 13-8-2003, at about 10 A.M., Parvatibai (PW-2) had gone to the field. Other two children had gone to the school. Prosecutrix (PW-1) was alone at home. When Parvatibai (PW-2) returned home at about 1:30 P.M., prosecutrix (PW-1) was weeping. On being asked, prosecutrix (PW-1) told that the appellant entered the house by jumping the wall and said that he will commit sexual intercourse. On being refused, the appellant, having caught hand of prosecutrix (PW- 1), took her to Kotha and started pressing her breasts. Prosecutrix (PW-1) shouted. The appellant gagged her mouth, took her to another room, removed her underwear, caused her to lay down, committed forcible sexual intercourse with her and fled from there. On this Parvatibai (PW-2) called villagers Sarjuram (PW-4) and Chainsingh. They also inquired from prosecutrix (PW-1). Prosecutrix (PW-1) narrated the incident to them also. Since prosecutrix (PW-1) was mentally retarded, the FIR (Ex. P-5) was lodged by Parvatibai (PW-2). Prosecutrix (PW-1) was sent to Community Health Centre, Gariyaband for medical examination vide Ex.P-9A. Dr. B. Bara (PW-6) examined prosecutrix (PW-1) and gave her report (Ex. P-9), in which, she found that hymen of prosecutrix (PW-1) was ruptured. She opined that intercourse was performed with prosecutrix (PW-1). She also prepared two slides of vaginal swab of prosecutrix (PW-J). The appellant was also sent for medical examination vide Ex.P-15. In further investigation, spot-maps (Ex. P-3 and P-4) were prepared. Marksheet of prosecutrix (PW-1) was seized vide Ex.P- 7. Underwear of the appellant was seized vide Ex.P-8. Sealed packet was seized from Constable Dhaniram Netam vide Ex.P-13. Seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-16. The appellant was arrested vide Ex.P-15. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Gariyaband, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by 9th Additional Sessions Judge (FTC), Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

(3.) Shri S.B. Patel, learned counsel for the appellant argued that the appellant has been falsely implicated by prosecutrix (PW-1). The evidence of prosecutrix (PW-1) is not trustworthy. Her testimony is full of contradictions. Therefore, it is not safe to rely upon her evidence. Hence, the appellant deserves acquittal.