IN THE HIGH CSOURT OF JUBICATURE AT BIIASPUR (CHHATTISGARH) CRIMINAL APPEAL N0. W/^ /20Qi ^PELIANT / >.7"S--'' ^.^'^:/ ^7.^ -/ <.-''^/ / ^7 y/ ^ / ^•^l':€/f y/y RESPONDgNT S BIUjU @ KHILAWAN S/o Sunhar Bhimar^ a9ed about 26 years^ R/o village Kachana^ P<S<| ^pandari^ ©istt,Raipur (C<»G<») VKRSUS : STATE OF CHHATTISG^.RH. ysl^hw^.o^.^ ^M^^^S^.^C^M^7^^1^S.L.^£.f.Sj^±. r H!GH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.418 of 2001 APPELLANT: RESPONDENT: -Versus- Billu @ Khilawan State of Chhattisgarh POST FOR JUDGMENT ONog^UGUST. 2011 Sd/- Prashant Kumar Mishra Judge ^ /D HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.418 of 2001 APPELLANT: RESPONDENT: -Versus- Billu @ Khilawan State of Chhattisgarh Present: Shri S. Imtiaz Ali, counsel for the appellant. Shri Qamrul Aziz, Panel Lawyer for the State. JUDGMENT (Delivered on 09^ August, 2011) Prashant Kumar Mishra. J. 1. The appellant stands convicted for committing an offence under Section 376 of the IPC and has been directed to undergo R.l. for 7 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for2 months. 2. FIR (Ex.-P/1) was lodged by the prosecutrix, aged 14 years, on 15-7- 2000 at 14.00 hours alleging thaton 13-7-2000 at about8.30 pm the prosecutrix had gone to attend the call of natureat Chokhadia tank near Tamarind tree along with her younger sister (PW-2) Dhaneshwari, aged about 10 years. After completing the call of nature, when she was about to put on her dress (Salwar), the accused in an underwear and Baniyan came to the place and caught hold of (PW-2) Dhaneshwari and when she freed herself and was escaping, the accused came near the prosecutrix and asked her to have sexual intercourse. He tried to catch holdofthe prosecutrix and when she tried to flee, shewas caught hold anjd was taken to a place near Tamarind tree and afterremoving her undergarment committed rape. When the prosecutrix tried to raise alarm, she was intimidated and asked to keep quiet. After completing the act, the accused went away. PW-2 Dhaneshwari informed her father Devnarayan (PW-3) who called Chagan (PW-7) and Bharat (PW- 9) and was coming to the place of incident and met the prosecutrix in mid way. The prosecutrix informed the incident to her father Devnarayan. At that place the road diverted. On one side the father of the prosecutrix proceeded to search the accused and on the other side Chagan (PW-7) and Jamuna (PW-4) proceeded. The accused was caught by Chagan and Jamuna and was taken to the house of the prosecutrix where hewas interrogated. However, the accused denied to have committed any offence. 3. FIR was lodged on 15-7-2000 and the prosecutrix was sent for medical examination and after completion of investigation, charge sheet was filed. The prosecution examined 16 witnesses to bring home the charges. The accused denied to have committed any offence and examined 2 defence witnesses namely, DW-1 Parvati and DW-2 Punitram. In substance, his defence is that he had obtained lease of fisheries rights in the Chokhadia tank and the prosecutrix was found committing theft offishes and being caughtred handed the present false report has been lodged. 4. With regard to the age of the prosecutrix, the prosecution has failed to submit either birth certificate or Dakhil Khariz Register of the school where the prosecutrix has studied or Kotwari register, therefore, in spite ofthe factthat PW-12 Dr. R.P. Singh, Radiologist, has opined the age of 'the prosecutrix to be between 14-15 years, the trial Court has held that ^ the prosecution has failed to prove that the prosecutrixwas less than16 years of age on the date ofthe incident. 5. In the matter of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and others (AIR 1982 SC 1297), it has been held that difference of two years on either side can be considered while assessing the ageof the prosecutrix. In this legal position, the finding recorded by the trial Court with regard to the age appears to be borne out from the record. 6. The prosecutrix has been examined as PW-1. She has fully supported the contents of the FIR and remained un-shattered in her cross- examination. Shehas denied the suggestion that she was committing theft of fishes and,therefore, to save herself, she haslodged the false report. But for some minor contradictions and omissions, she has not departed from her case diary statement or the contents of FIR in material terms. 7. PW-2 Dhaneshwari, aged 10 years, is the younger sister of the prosecutrix. Before recording her evidence, the trial Court verified her mental ability and after recording satisfaction that the witness can make statement, she wasexamined. She has also supported the prosecution case and version ofthe incident which took place with her elder sister, the prosecutrix. This witness has also denied that they had gone to commit theft of fishes. 8. PW-3 Devnarayan is the father of the prosecutrix and he has also supported the prosecution case. He says that when the accused was rcaught immediately after the incident and was interrogated, he said that @ k^ some other boy has committed sexual intercourse with the prosecutrix, but the prosecutrix, who was also present at that time, stated that it is thisboy i.e. the accysed who has committed offence. For delay in FIR, PW-3 Devnarayan says that the next day Sarpanch was informed and was asked to accompany them to the Police Station, however, Sarpanch did not accompany themand thereafter FIR waslodged on the next day. He says that since he had never gone to the police station, he was in fear and could not lodge the report immediately. 9. PW-4 Jamuna Prasad and PW-7 Chagan Lal Sahu are resident of the same village and havesupported the prosecution version as reflected in the FIR and in the statementof prosecutrix to the effeet that Devnarayan had called them and they had gone to search the accused in the very night when the incident has taken place. PW-8 BharatKumar Sahu has also supported the prosecution case with regard to the events which took place immediately after the incident. 10.PW-9 Pannalal is the Sarpanch and has supported the evidence of Devnarayan that he had informed about the incident and requested him to accompany them to the police station for lodging FIR, however, because of another quarrel between two boys, which had taken place in the village, he could not accompany Devnarayan. He also says that after lodging of thereport by Devnarayan, the police had called him and he had gone to the police station. He admits his signatureon Ex.-P/S which is the seizure memoconcerning undergarment and Salwar Kurta of the prosecutrix. He also admits his signature in Ex.-P/5 which is the seizure of slides preparedafter medical examinationof the prosecutrix as also on Ex.-P/6 which is seizure of underwear of the accused. ..-" Nothing particular or important raising doubt on the proiiVBUlion case has surfaced in his cross-examination. 11.PW-14 Dr. Rajni Sao is the lady doctor, who hasexamined the prosecutrix and has not accorded any definite opinion about commission of rape. 12. From the above appreciation of evidence put-forth by the prosecution, it is fully established that the appellant has committed forceful sexual intercourse with the prosecutrix on 13-7-2000 at about 8.30 pm. There is nothing in cross-examination of the witnesses to impeach their credibility or to indicate that theyare notspeaking truth and that they have lodged a false and concocted case against the accused. Though the prosecutrix is aged more than 16 years, however, there is no evidence that she was aconsenting party in the performance of sexual intercourse by the accused. If that would have been the case, she wouldnot have informed her father immediately after meeting him and there may have been evidence of previous interaction between the accused and the prosecutrix. 13.1n view of the above, the finding recorded by the trial Court is fully supported by the evidence available on record and the finding is neither perverse nor has been arrived at by incorrectly appreciating or marshalling the evidence. 14. In the result, there is no substance in this appeal, which fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge Barve