Decided on February 22,2018

SHYAM LAL Appellant


RAJENDRA MAHAJAN,J. - (1.) Appellant-accused Shyam Lal has filed this appeal under section 374 (2) of the Cr.P.C , 1973challenging the legality and validity of the judgment and order dated 28.9.2004 passed by the learned Sessions Judge Vidisha in Sessions Trial No. 70 of 2004, whereby the appellant has been convicted under Section 376 (1) of the I.P.C and sentenced thereunder to suffer RI for a period of seven years and to pay a fine of Rs. 1000/- (one thousand), in default of which to suffer further RI for a period of two months.
(2.) The facts and circumstances giving rise to this appeal are, in brief, given below : 2.1. On 21.11.2003 at about 4.30 p.m the prosecutrix (PW3) made an oral FIR to Bharat Bhushan (PW8), the Station House Officer at Police Station Gyaraspur, stating that she is a house wife and resident of village Dehalwada. Her husband Ramsingh (not examined) and appellant Shyam Lal are masons by occupation and they have been doing masonry jobs together for the last four to five years. For this reason, appellant Shyam Lal used to visit her residence and therefore she knows him well. Some fifteen days before the lodging of the FIR by her, her husband and appellant Shyam Lal went to Bhopal for doing masonry jobs. On 21.11.2003 at about 9 a.m, she had gone to her Khet (agricultural field) for cutting grass, leaving her children in her house. At about 12 to 1 p.m, while she was cutting grass, someone took her in the arms from behind. She took turn and saw that it was appellant Shyam Lal. She asked him as to why he caught hold of her. He replied that he would have sexual intercourse with her. Thereafter, he made attempts to fall her down. But, she resisted his attempts. However, he forcefully made her lie on her back. In the course of scuffle, she cried loudly but no one came to her rescue. Upon her outcry, appellant Shyam Lal threatened her to kill with a knife saying if she did not become silent. Later, he had sexual intercourse with her against her consent and wishes. After committing rape upon her, appellant Shyam Lal left the place. Thereafter, she proceeded toward her residence and she narrated the incident on the way to her neighbour Kedar (PW7). When she reached her residence, her nephew Ramprakash (PW6), the child witness, told her that appellant Shyam Lal came to the house and asked about her whereabouts. As such, he came to the place of occurrence taking input about her whereabouts from him. Bharat Bhushan reduced her oral FIR into writing being Ex.P/3, and he registered a case at Crime No.130 of 2003 against appellant Shaym Lal for an offence punishable under Section 376 IPC. Thereafter, he sent the prosecutrix for medico-legal examination to the Primary Health Centre Haiderganj. There, Dr.(Smt) N. Ahirwar (PW1) medically examined her and gave her report Ex.P/1. She also seized her wearing petticoat and prepared two slides of her vaginal swab. She handed over the said articles to constable Kamlesh (PW2) who took the prosecutrix to the said Primary Health Centre. 2.2. Bharat Bhushan undertook the investigation. In the course of investigation, on 22.11.2003 he recorded case diary statements of the prosecutrix, Kedar and Ramprakash and also prepared spot map Ex.P/4 of the place of occurrence. On 21.3.2004, he arrested appellant Shyamlal vide arrest memo Ex.P/6 and sent him to Primary Health Centre, Gyaraspur for his medico-legal examination. There, Dr. B.P. Sharma (PW4) medically examined him and gave his medical report Ex.P/5 stating that he is capable of doing sexual intercourse. Bharat Bhushan also sent the articles collected in the course of investigation for forensic examinations to the Regional Forensic Science Laboratory Gwalior, and the laboratory gave its report Ex.P/8. 2.3. Upon completion of the investigation, the police charge-sheeted appellant Shyam Lal for an offence punishable under Section 376 I.P.C in the court of Chief Judicial Magistrate, Vidisha. The learned CJM committed the case vide committal order dated 1.5.2004 to the court of Sessions Judge Vidisha. The case came to be registered as Sessions Trial No. 70 of 2004.
(3.) The learned Sessions Judge framed the charge against the appellant under Section 376 (1) I.P.C. He denied the charge and opted for trial.;

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