ASHOK DHRUV Vs. STATE OF C.G.

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-2-2002 passed by the IIIrd Additional Sessions Judge, Raipur in Sessions Trial No. 198/2001 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for lurking house trespass in order to commit offence punishable with imprisonment and for committing rape with the prosecutrix (PW-7, name not mentioned), convicted the appellant under Sections 457 and 376(1) of the Indian Penal Code (for short 'the IPC) and sentenced him to undergo rigorous imprisonment for 4 years and to pay fine of Rs.500/-, in default thereof, to further undergo rigorous imprisonment for 1 month; and to undergo rigorous imprisonment for 5 years and to pay fine of Rs.500/-, in default thereof, to further undergo rigorous imprisonment for 1 month, with a direction to run both the substantive jail sentences concurrently.

(2.) Conviction is impugned on the ground that without there being any iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) As per case of the prosecution, on 20-5-2001, at about 11.30 a.m., the prosecutrix (PW-7) reached to Police Station Mandir Hasod, District Raipur and lodged the First Information Report (FIR) against the appellant under Sections 456, 376 of the IPC and stated that presently she is living at Village Nawagaon in the farm house situated inside the farm of Durgesh Talmale (PW-11) along with her husband who is working as Guard in the said farm house. On 19-5-2001, at about 10.00 a.m. when her husband as instructed was going for transportation of Barat, the appellant came and asked Durgesh Talmale (PW-11) for two wheeler which he allowed. The accused/appellant took the two wheeler. Thereafter, the prosecutrix (PW-7) locked the main gate of the farm and was sleeping inside the room along with 2 small children. At about 1.00 a.m. of intervening night of 19-5-2001 and 20-5-2001 the accused /appellant entered inside by jumping the boundary wall and called her to open the lock of the main gate for keeping the two wheeler inside, then she opened the lock of the main gate, thereafter the accused/appellant put the two wheeler inside and when she was taking the key of said two wheeler from the accused/appellant, he caught hold her and caused her fall down, she protested the same but he forcibly committed rape with her. She make a call for help; the accused/appellant stated that nobody will hear and he will commit the rape. Thereafter he committed the rape forcibly. After the incident, she ran away to the house of her family friend Ishwar (PW-9) and she narrated the entire incident to the wife of Ishwar namely Ramkunwarbai (PW-1), Ishwar (PW-9) and others. She also informed that the accused/appellant had consumed liquor and he is inside her house. When Ishwar (PW-9) and others visited her house, they noticed the accused/appellant was inside the house, but he had not opened the door. When her husband returned very early morning, then she narrated the whole story to him. When her husband enquired it from the accused/appellant who was in the same house, the appellant ran away from the spot. The prosecutrix (PW-7) along with her husband and other villagers reached to the police station and lodged this report. Police registered crime no. 102/2001 and wrote the FIR vide Ex.-P/5. After registration of the First Information Report, police of Police Station Mandir Hasod started the investigation. After obtaining the necessary permission, the prosecutrix (PW-7) was sent for medical examination. Dr. Smt. Neeta Bhatnagar (PW-4) examined the prosecutrix (PW-7) and noticed one small abrasion at left knee; except the said abrasion, no other external or internal injury was found. As per her assessment, no definite opinion about the intercourse can be given as she was married and habituated to intercourse. She gave her report vide Ex.-P/2. She also examined the clothes of the prosecutrix (PW-7) and after examining the same, sent it towards police for chemical analysis regarding the presence of semen stains. She gave her report vide Ex.-P/3. The spot map was prepared vide Ex.-P/8. The accused/appellant was arrested. His clothes were seized vide Ex.-P/9. The accused/appellant was sent for medical examination. Doctor K.S.Roy (PW-6) examined the accused/appellant and noticed that he was capable of doing intercourse. Nothing abnormal was noticed during his examination. He also examined the undergarment of the accused/appellant and advised for the chemical analysis. He gave his report vide Ex.-P/4. The articles so seized were sent for chemical examination vide draft Ex.-P/12. The articles were received at the Forensic Science Laboratory (FSL), Raipur vide receipt Ex.-P/13. After the analysis, the FSL, Raipur gave its report vide Ex.-P/14 and as per its report, upon the said slides of vaginal swab and clothe of the prosecutrix (PW-7) and undergarment of the accused/appellant stains of semen and human spermatozoa were found positive. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code').