IGH COURTN OF CHHATTISGARH BILASPUR “ H ‘ Post for pronouncement of iudgment on 22““ July, 2009 T? Sha‘ma ‘ 3u%e 0 Criminal Aggeal No.490 of 2006 APPELLANT: Rémesh Kashyap Versus RESPONDENT: State of C.G. L @‘ ’ \SKX HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.490 of 2006 APPELLANT: (In Jail) Ramesh Kashyap, S/o Shri Latel Kashyap, aged about 24 years, R/o Viilag‘e Kaira-Danganiya, P.S. Sipat, Distt. Bilaspur (C.G.) Versus State of C.G.‘ Through Police Station Sipat, Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973} RESPONDENT: Present: Mr. Rewa Shankar Patel, counsel for the appellant. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent. Sinqle Bench: Hon’ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 22na July, 2009) 1. This appeal is directed against the judgment of conviction & order of sentence dated 22—12-2005 passed by the Sessions Judge, Bilaspur in Sessions Trial No.268/2005 whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of offence under Section 376 of the l.P.C., sentenced him -to undergo R.l. for seven years & pay fine of Rs.1,000/—, in default of payment of fine to further undergo R.l. for three months. Judgment is challenged on the ground that without any iota of evidence, learned Court below has convicted and sentenced the appellant as aforementioned. ‘ Case of the prosecution, in brief, is that the prosecutrix (PW~6), who is aged about 10 years on the date of incident i.e. 22—3-2095, was collecting cow dung near pond at Village Khaira, Distt. Bilaspur and the accused/appellant was grazing cattle near the pond. The accused told the prosecutrix that there were more cow dung and took her with him. The prosecutrix accompanied him and after some time the accused told her to lay down, on her refusal the;accused threatened her, when she ‘ tried to flee away, the accused assaulted her with stick and when the prosecutrix fell down the accused dragger her under a tree and after . . a{E £ T’\HJ removing her underwear, he committed sexual intercourse with her. Blood came out from private part of the prosecutrix. The accused again threatened her, she came back to her house and narrated the incident to her parents. Finally, F.I.R. was iodged on the same day vide Ex.P-10. The prosecutrix was sent for medical examination and she was examined by Dr. S.K. Mishra (PW-11) vide Ex.P—15 who directed for examination of the prosecutrix by a lady doctor on which the prosecutrix was examined by Dr. Smt. M. Pandey‘(PW-12) vide Ex.P-15. Secondary sexual characters of the prosecutrix were at developing stage, hymen was patulous and vagina admits one finger. Her age was ascertained as ten years. Ossification test was also conducted to ascertain her age and her age was ascertained as twelve years vide Ex.P-16. One stick was recovered from the accused vide Ex.P-1. Frock & unden/vear of the prosecutrix were recovered vide Ex.P-2. Vaginal slides of the prosecutrix prepared at the time of her examination were recovered vide Ex.P—4. The accused was also examined by Dr. Rajesh Kumar Patel (PW-4) on the same day who noticed that his frenum was torn and bleeded, smegma was absent. Spot maps Were prepared vide Exs.P-8 & P-13. Statements of the witnesses were recorded under Section 161 of'the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate FirstClass, Bilaspur, who in turn committed the case to the Court of Sessions, Bilaspur. . ln order to prove the guilt ofthe appellant, the prosecution has examined as many as thirteen witnesses and statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence & false implication. .‘ After affording opportunity of hearing to the parties, the Court below has convicted & sentenced the appellant in the aforesaid manner. . l have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. . Learned counsel for the appellant argued that the prosecutrix (PW—6) has deposed that the appellant has committed sexual intercourse with her and blood came out from her private part, but her evidence has not been corroborated by medical evidence. The prosecutrix is a ten years aged girl, her evidence is not safe to rely upon in absence of medical corroboration or corroboration from independent sources. . n the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and submitted that the prosecution has proved the case beyond all reasonable doubts and the appellant is the person who has committed rape on the prosecutrix. Hymen of the prosecutrix was patulous which is suggestive of commission of rape, complete intercourse is not necessary, even partial penetration constitutes the offence of rape. ln order to appreciate the contentions of the parties, l have examined the evidence of the witnesses adduced on behalf of the parties. .As regards age of the prosecutrix, her age was ascertained by the Court as‘ten years. Dr. Smt. M. Pandey (PW-12) has deposed that on 22—3- 2005 she has examined the prosecutrix and her age was assessed as ten years, her secondary sexual characters were at developing stage, auxiliary hair was not present, only 24 teeths were found over the mandible, cubic hair was not present. Her age was assessed on the basis of ossification test by Dr. R. Jitpure (PW-13) vide EXP—16 who found radiological age of the prosecutrix as twelve years. Defence has not collected any material to discredit the factum of age of the prosecutrix. Therefore, it can safely be inferred that on the date o incident, age of the prosecutrix was below 16 years. ln order to connect the appellant with the crime in question, the prosecution has examined the prosecutrix (PW-6) who has deposed that while she was collecting dung, the accused came toher and told about more dung in other place, she accompanied him and after some distance, the accused directed her to lay down, on her refusal he assaulted her with a stick, when she fell down, the accused closed her, mouth, opened her undergarment and slept over her, and inserted his male organ into her private part. Blood came out and her clothes were stained with blood. She came back to the house and narrated the incident to her parents, thereafter, she lodged the report vide Ex.P-10. Ghanshyam (PW-7) — father of the prosecutrix & Smt. Ramkumari (PW- 8) — mother of the prosecutrix have corroborated the evidence of the prosecutrix. . . f O 12. Dr. Smt. M. Pandey (PW-12) has examined the prosecutrix at home, her hymen was patulous and vagina admits one finger. Her frock & underwear containing blood stains were seized vide Ex.P—2. The accused was aiso examined by Dr. Rajesh Kumar Patel (PW-4) on the same day who found that his frenum was torn and bleeded, and smegma was missing. These facts are suggestive of commission of sexual intercourse on the prosecutrix. Defence has cross-examined the prosecutrix. The prosecutrix is a child aged about ten years and exaggeration in her statement is natural. in her examination & cross-examination she has specifically stated that the appellant is the person who slept over her and committed sexual intercourse with her. Ghanshyam (PW—7) — father & Smt. Ramkumari (PW-8) — mother of the prosecutrix have specifically stated in their cross- examination that clothes of the prosecutrix were stained with blood. Evidence of the prosecutrix reveals that the appellant slept over the prosecutrix and inserted his penis in her private part, although no injury was found over private part of the prosecutrix, evidence reveals that there may not be complete penetration, but this is a case of partial penetration resulted into oozing of blood though it was not found at the time of medical examination conducted after some time of the incident. Evidence of the prosecutrix inspires confidence and sufficient for drawing inference that the appellant has committed sexual intercourse with her when her age was below the age of ten years, same is offence of rape ‘within the meaning of Section 375 ofthe l.P.C. which is punishable under Section 376 of the l.P.C. 14.After appreciating the evidence availablepn record, learned Sessions Judge has convicted and sentenced the appellant as aforementioned. . 15. Taking into consideration the age of the prosecutrix, sentence of R.l. fo seven years & fine of Rs.1,000/- imposed upon the appellant is neither excessive nor unjust. Conviction & sentence of the appellant are sustainable under the law. i do not find any scope for interference in the impugned judgment. . Sd/— T.P Sharma‘ Judge i 16. Consequently, the appeal is dismissed. Soma . r W