fft^ /^ €^. '^ J<" ^PPELLANT O" Jaii) HI©HCOURT W CHHATTCS^ARH_Anil^^y8 Cciwmoi ^eeai No. 1290 of 2001 Vjnod Kymar Sahu S/o Asho(< Kyrnar Sahuaged about 19 years, ft/o viilage Koliyars, Poiice Statlon Arjyni, Djstt.Dhamtari(C.6.) RESPQN&ENT Versus State of Chhatt'isgarh through Police StatJon Arjyni, Djstt.Dhamtari (C.G.) (APPEAL UNDER SECTCON 374 (2) OF THE CODE OF CftIMINAL PROCEOUftE, 1973) (SB: Hon'ble Mr. T.P. Sharma. J.) Present; S^ri Pawan Shrivastava, counsef for the appclbnt, Shn Sushii bubey, ^ovtAdvocate for the State/respondent, OR^L JUDeMENT O^assed on 10th February, 2009) Jb^s appeal Is directed agalnst the judgment of conyjctiQn and order of sentence dated 7,11.2002 passed by the AddJtionaJ Sesslons Judge, Dhamtari, in Sessions Triaf No-163/2002 whereby the tearned Additional S^ssjons Judga after holding 1+ie appelbnt guilty for the offence punishabJe under Section 376 read with Section 511 of the Indian Penal Code sentenccd him to undergo rigorous Imprisonment for 5 years and to pay a fjne of Rs. 1000A, in default of payment of fine to further yndergo rlgorous jmprisonrpcnt for 6 rnonths. 2, Judgment ss chollenged on 1+ie ground that without there being ony cJhching and (ega! eyidencc the court below has convjctedl and sentenced the appeltant as aforementjoned and thereby comm^tted an illegality. "^, '•2j£. "^; 3. Case of the prosecution, in brtef is thot on 10.2.2002 at about 4 p.m. pro^^cutrsx Nirmb aged about 6 years was pre^nt in 1+se yjliage at that time accused came to her and took her towards the rjyer to proyide biscust. He Jay down the prosecutrix on the land ond after remoyjng he^ undergarment and his clothes tried to insert his mai organ in private part of the prosecutrix, Blood come out from private part of the prosecutrlx. She narrated the incident to her mo1+»er and other fomiiy members and lodged the report vide ExP/1. Her frock and undergarment were seized vide Ex,P/3. School document (ExP/4) was also seized. She was sent for medical examJnation. She was examined by Dr.Smt. Vandna Vyas vlde ExP/tO and found Ijght redness over her private part» Slides were prepared. Her age was ascertained as 4 ye<irs, The accu^d was taken into custody and sent for medical examlnatjon. He was examined by Dr. J.S.Khatso (PW-10) yide ExP/13 ond opOTed that the. appjicant ?5 capable of com?njt intercourse. Smegmo. was ab^nt oyer hls gbnce penis, One Jeans pant was seteed from the appellant vlde ExP/18< Seized articles v^re sent for medica! ana!ysls vide ExP/19. Presence of spurn over undergarment of the prosecutrix and full pant of the accused w%re confirmed vide ExP/23. 4, After completJon of investigert-bn, charge sheet was flied jn the Court of 1+ie Chlef Judicia! AA^g^trate, Dhamtarj ^10 ?n turn corpmitt'ed the case to Ihe Court of Sessions. Judge, Raipur from where the AdditionoJ S^ssions Judge, bhamtari receiyed the same on transfer for trbl 5< In order to prove 1+ie guilt of the appellant, the prosecution examined as many as 12 witnesses. Statement of the accu-sed/appellant was recorded under Section 313 of the Code of CrJminal Procedyre, 1973, In which he denied the circumstances appearing agalnst him and jnnoccncy and false jmpJication is cldmed. 6. Learned Additional Sessions Judge after offordmg opportunity of hearing to l4ie parties, convicted and sentenced the accu^d/appeiJQnt as aforementioned. ^7. 7< I have heard Shri Pawan Sirjyastava, counsel for 1+ie dppeltant and SiH Sushil bubey, ^oyt.Advocate for the State/respondent ond perused the judgm^nt wpugned as also record of 1+ie coyrt below. 8. At the outset, learnedl counsel for the appellant submtts 1+iat 1+i^ appelJQnt has ^rved the ^ntence Jmposed upon him, therefQre/ he is chdJenging t^e legatity of conviction dnd submits that the prosecutsors has not adduced any evsdence to show that the appeltont has attempted to commlt sexual intercourse with the prosecutrjx, 9. On 1+ie o1+ier hand, judgynient Is supported on behdf of the respondent/State and subrpits ttiat 1+ie eyldence adduced on bahalf of thc prosecution is sufficient for drawing inference that 1+se appeljant has att'empted to commJt ^xual intercourse with 6 years msnor child gir! NJrmta, 10, In order to appreciate the contentions of ^c parties and to connect the accused/appeltants m the crime in question, I have examined the evldence adduced on behalf of the pro^cution. Nirmla (PW-1) aged obout 6 ye^rs has stated In her evjdence 1+iat the accused/a^peilant came to hcr and on thc pretext of proyldjng bjscujt, he took her near Beshram where another co-accused Parmeshwar was a!so present, S^e has also stated that accused opened her undergarment and has statcd that b!ood were came out from her prjyate part. Pawan Kurpar1 (PW-2) has stated in his evjdence that Artj has told him that blood were coming near the leg of the prosecytrjx. Parrpeshwir (PW-3) aged about 12 years ha^ supported the case of the pro^gcution. Sushib (PW-4) and Pyc^elal Vaidya (PW-S) have also supported the case of the prosecution. Prosecytrlx-Nirmia (PW-1) has not spedfically stated the factum of attempt to cornmit sexual intercourse, but her statement, her conduct, comjng of blood from her prlvate part, removing her cbthes and taking the prosecutrix by the appellarst near !onely place where he lcy doiw the prosecutrjx on the land are cjrcumstonces ^ich are substa^stbted the fact that the appellant has att-empted to commJt ^xual sntercourse with the prosecutrlx, which is also corroboroted by the ?nedlca! eyldence and pre^snce ~\- ^'-' 'r2S^ of redness m the priyate part of Nirmla and absence of smegma over glance penis of the accused, 11. After appreciating the eyidence avaitabie on record, the court below has conyicted and sentenced the appellant as aforementjoned. The court below hos not commitl'ed any silegality In the judgment impugned. I do not fjnd any substance in the appea!. 12. Consequentiy, 1+ie appea! being devoid of merit is liable to be dismissed and jt ss hereby dismissed^ Sd/- T.P. Sharma Judge B/-