JHINGAI ALIAS CHINGAI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Appellant Jhingai alias Chingai son of Hardeo, stands convicted and sentenced to rigorous imprisonment for three years and a fine of Rs. 1,000.00 and, in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 376 of the Indian Penal Code, by the Third Additional Sessions Judge, Durg, in Sessions Trial No. 34 of 1986, decided on 24-7-1987, which is under challenged in this appeal.

(2.) According to the prosecution. prosecutrix Punnibai wife of Harilal Satnami, aged about 35 years, was living in a hut at Khursipar Gate, Hazarilal was. working in S.S.P. Appellant Jhingai was the landlord of the hut, in which Punnibai was residing with her two children, one aged about 4-5 months and the other was aged about 2 1/2 years. Punnibai had delivered a child, which was aged about 4-5 months at the time of the incident, after undergoing a major operation. Punnibai had gone to her parents' place at Raipur and she returned along with her children, on the day of the incident i.e., 23-8-1985, at about 4.30 p.m. and at that time, her husband was not in the house as he had gone to visit a friend in a different village. When Punnibai was sleeping in her hut after closing the doors from inside, then, at about 9-30 in the night, appellant Jhingai entered her hut after breaking open the back door of the hut and came inside and he shut her mouth by placing a cloth over it as a result of which, she awoke and tried to raise an alarm, but her mouth had been shut and, thereafter, the appellant committed rape on her against her wish, as a result of which, there was profuse bleeding from her private-part. The appellant, who was living nearby, then left her and ran away. Punnibai (P.W. 2) then called her neighbour Lalitabai and, informed her that she had been raped by Jhingai. Lalitabai (P.W. 5), thereafter; took Punnibai to Chhaoni police-station where she lodged the report (Ex. P-2) the same night at 22 Hours. The husband of Punnibai returned back after two days of the incident, as he had gone to visit some friend. On the report (Ex. P-3) lodged by Punnibai, an offence under Section 376 of I.P.C., was registered at Crime No. 940/85. Punnibai was sent for medical examination to District Hospital, Durg, the same night of the incident, i.e. 23-8-1985, and examined by Lady Doctor Khan (P.W. 1). On, examination, Lady Doctor Khan (P.W. 1) as per her report (Ex. P1), found that there was tear on the left lateral vaginal wall and left side of cervix and the would was about 3" long, which according to this witness, could be caused by forceful intercourse and the injury was within 24 hours. Punnibai had been admitted in the hospital for treatment. Two sides from the vaginal smear had also been prepared by the Lady Doctor and the same had been seized and handed over to the Constable. The clothes of Punnibai had also been examined by the Lady Doctor Khan (P.W. 1) on 2-91985 and she had seen blood marks at many places over them. She thereafter, sealed the clothes and handed them over to the Police Constable. During investigation, the clothes, i.e., one full sleeve shirt, one terry cloth full-pant and one cotton underwear, were seized in the presence of witnesses from the present appellant Jhingai on 23-8-1985 in night at 23-00 hours, as the same were having blood stains on them. He was also Sent for medical examination and was examined by Dr R. D. Sharma (P.W. 6), who vide his report (Ex. P-7), found that he was, capable of performing sexual intercourse. The clothes of Jhingai, sent in a sealed packet by the police, were also examined. by Dr. Sharma and he found blood stains at a number of places - as per his report (Ex. P-8), Dr. Shama also examined one dark blue coloured Sari, which was seized from the spot, and had advised that the aforesaid articles be sent for chemical examination. . The articles seized in the case, were sent to the Chemical Examiner; F.S.L., Sagar and, as per report (Ex. P-12) of the Chemical Examiner, presence of blood was confirmed on the clothes seized from the accused. No seminal stains and spermatozoa could be detected on blood-stained earth seized from the spot, petti-coat, cloth, Sari and pubic hair of the prosecutrix. After completing the investigation, the accused-appellant Jhingai was put up for trial.

(3.) Accused-appellant Jhingai abjured his guilt before the trial Court. The defence was that Punnibai was well known to him (accused) and there was dispute about the hut and Punnibai was trying to obtain a Patta in respect of the same and, so he had been falsely implicated. It was also his defence that, on 23-8-1985, he was on duty from 2-00 p.m. till 10-00 in the night. He was relieved from the duty at 10-10 in the night and when he reached home after the duty at about 10-30, he was arrested by the police at about 11-30 in the night. Two witnesses had been examined in defence.