A92, enant an Jam ‘ ARHATgiLA§Pun a! Ate, 479 0f 200$ ($ B: Han’bie Mr. T,P:$harma; J4 Gulabchand Jain Versus State of Chhattisgarh Resgondent Qrder be posted for pronouncement on’? 7‘1 September, 20% ‘r/ d/— ‘ w ,::i ‘ T. P. Sharma [J Judge . R :9JZGTJ8 ’ . . G Criminal A. m HIGH COUHT {IF CHHATTI55A§H AT BILA5FUR €F3mir‘1ai i‘ippea? N6. 4??? a‘f 2$§é APPELLANT (In Eaii) $ulabahmd Jain Slo Law 8hag¢hand Jain éged claw? 2? year‘s Owupafiaw-Hakr' Mill Rio—Sanargal, Hal Kesarpa! RS- 3ha'n‘p‘uri, iiisf—Eas‘far {$6.} Versus RESPQNDENT 5mm m‘. Chhaffisgarh Through P5: Ajak, Jagdaipur Eas’rar (Ca) APPEAL UNDER SECTION 374(2X OF CODE OF CRIMINAL PROCEDURE ($iuglg Bench: Hon'ble Mr, TEP, 5harma, J‘) Present 5hri Amn Kachar/ counsel for fhe appzilant Shri N. Naha Roy, Panei iawyer for The Sfafe. JUD$MENT {Passed an 0 Q Sepw‘ember, 2308} This upped i5 directed against We. judgmenf of mnvintien and ardar cf sentence dwed ZQéZQOf» possgd by fhe $pz¢iql Judge (5,6, & SI Atrocifies kcf)‘ Basfar (1+ Jagdqlpur'; in Sessions Trig! No. 314/2005 wheraby The Iawned Specia! Judy affer' hglding The appeliam‘ guiHy for commissian 0f 9ffenm pLyni$hab¥e undar Seafians 376/511 5g 45G 9f fhe Indian Pang! Code, wnvided and sentenced him m undergo rigorous imprisonmenf fer 5 yams and 1'9 pay fine af gs: m/—, in defqul‘t of paymanf 0f fina To furthar' undarga rigorous imprisonmenf for 1 year under socfion 37'é/511 of the indian Pena! Code and rigorous. imorisonmen’r for 3 yoor‘s unoer $ection 4§O of the. Indian Penal Codeg Both The son‘rznow wow ordered. fo‘run concurrently: 2‘, Judgmen+ is cholionged on the ground Thori- wii‘hout any crodibk and roiiabie evidence, iho triai court has convicfad and senfencad The appoilom os oforomeniionedi 3. Caso of ‘i‘he. proszou‘riom in brief, is that fhe pmsaom'rix (PW-6) Kuv Bhogyawwi was good obou‘r 13 year's oi the, fimg of Tho. alleged. inside-m. On 191.2005, sho was living with her sfep—mother (Mousi). Her groin—uncle {Mouso)—Jodunmh Koshyop was out of sm‘i‘ion on flog doiz of “the. incident and her sfay—moi‘har {Mousg wa5 aEso auf of 'rhe house‘ At nbouf 7 gun, she was with PW~2 Kua Rqiyamafi af fhm i'ima :Lppzilan‘!‘ mme Ta her Muse and Threafened the wifness Ku, Raiyamati. 5m ran away from i'hg hause of ‘the prosgcui‘rix. Then qppe‘bm remavad her dgfhw, lay down in a cm and farcefuily commi+ted inmrcouwe wii-h her withouf her wiH and consent She started wagging: Witness Chg? ur- and Purni mma to her hage, Thereqffer- apyeuant ran away fmm the. housg of ‘t‘he pmsawi’rix. 5he ‘Tom the incidem- w Chqmr and Pumii She went 1'0 hem mather‘s housz along with KLL Raiycxmcd'i whg was residing at villmga KoshmE. On 2211,2005, bar rainfiva came t9 her. Thereafter $113. and hgr' grep—nude (Mousa) wgnt m i'he polim siwion-Bhanpuri and lodgad fhe FIR Vida EXP/1, She wa$ sent for L‘hgmiml examinafian Vida EXP/2. 5W3 was examined by Dr. A, Kachhap (PW—8) m1 24.12005 Vida Ex‘Pf Her qga 9f he 9msacu‘trix wn5 ascertained a 3 ears Hzrz $acondm~y $exual (thamcfer' war-g not fuliy deveiaped, bu? fhey we at the. sm 0f dgvelopmant Na extarnq! injury mm faund aver her bod Qne lacem'red wound 0f size e cm . % cm. was faunci aver her perEneum wifh s$igh1' redss md sweHing cc? she feels ain, Hymen was nfect dues no? dmi‘? a fip of lifti fiure: Doe has agine aj‘ irgury ever her pariem! may be caused s a result c ierco$e, but cmefe infercourse ha$ n9? been commi'Hed upon The yrosecu‘rrix. Sde of gina! smear were preem‘ed. Pubic hair was eu‘i‘ and seized vid tP/. t m ExPE was prepred) Her undergarmeni' was eeized vide EXP/6, Ceste crifm'e of fhe grasecu‘i'rix woe seized vide EXP. Simemenfs of the pmsecu‘tri and wi'esses were recorded under Seefian 161 of The Code 92F Criminal Precedure, 1973, 4, Affer complefian of investigmian, ehgrge shee‘i ws l i fhe Cour? 0f fhe Chief Judicial Magis‘irm'e, Jagdcilpur who in mm eammii‘i’ed ‘the ease io #he Cour? of the $eseians Judge: JagdQIpur frem where peciei ude (5,71 <§. 5L Atrocii’ies Ad): Basmr a‘l' Jagdaipur received fhe same transfer for frial. 5V In order To grove ’rhe guiH of The appellanf/eceused, fhe proeecution hes examined many as 9 wi‘i‘nesees. Siofemen‘i 9f Purni i was: recodd, as Co? ‘mees‘ Sm‘remem' ef ihe gecused/eppeiiqn‘i' was recorded uncler $ec‘i'ion 313 of the Cede e Criminal Pracedure, 197.3; in which he denied the mm‘erial apearin against him He has claimed Thai he is innocent and has been falsely implicaied in ihe crime in quesiion. l + s 1 y er ge y ae m g i a e g fer d fh e f n+ur opl li va e Ex3 Spo ap I a eric /7 x in a fied n 5 Jg on as Ba re ur wi f pg 6, Learned Spzgiql Juége after affar‘ding an opportunity cf hearing to tha caunsal for the respgzfive parties, convicted and sgnmnced fhe. accused/aggaeltant w afarzmenfiongd, 7. I have hegr'd Shri Arun Kochar, munsel for- The aggmllan? and Shri N; Naha Roy, Penal Sawyer for fhe 5mm and parusad the judgman‘r impugned and mmrd af fhg Triad court 8‘ Lgamed caumel far ‘Hvm agpeilanif submitg fhaf the. prosacution has no+ proved fhz age, (if fhe prosewWix belaw 16 years, Smi'ement of the pm5ecu‘h‘ix has nm suppQr-Ted by (my ind$9andenf wifnessses, Her sm‘tgmem' is full of dis¢re9¢3n¢ies, omis$ion and confradicfbn doe$ no+ in$pire confidangte; Her $‘rafamznf is no‘t corroborated by me medical avidencg PW-8 Dr, A, Ka¢hhnp has 5pgaifiaal§y admi‘Hed fhm injury over her privma parf is no+ mug prior to 5 days on fhe dam 9f zxaminm‘ion and injury dces not correspgnd the dam of incident FIR has bwaen iodgzd affer' a dalay 0f 3 days; hm deb; has m? bgen explained by The prosecufion and fhe samg is fg‘l'al for grosecufion; 9, Learned munsal for fhe appeilant has pinced, reliance in the matter af Rgju Psadamng Maheie v. $131k @f Mahsmshwa and Answer} in which it has by ihz Apgx (bur? +hm if any pagan fame a woman to remain in the house: with ather' pemon who oommi‘tfed mpg wiih hgr “than ‘l’hm‘ person who farce a wamm To remain with another person hag commi‘H-ed the ¢ffen¢e punishabie under Sectian 354 (sf the lndim Pencil Code, Learned coginse! has aka glaced. reiiance in the matter of Mrs. gum-i baa! Eajq} and anatner v. ganwgar ?e! sir$h 5m and anotherz in whiah it has bald by tha Apex Court that intentianally §tanding of a man nem- any woman within 4 inch from her knae$ ar' trying to close hi3 chair is used of criminal fame with intent ta Outrage tha modesty of q womim Lgarned gounsei has furthzr placed reliance in the matter of .5hcukat aria! amther v. The Stata of axiasthang in which it has held by the Rajq£than High Cwrt that ccught hold the office of a vmmtm asking her t0 put off her‘ clothes and put her on the ground is mt of outrqgé 0f mode$ty and the same is punishabla Lmdar Sectian 354 0f? the Indian Penal Code. Loamod counsel ha$ al$o plooed reliance in the. matter of Ramgsliwar Vt $tata of 1 (2004) 4 sac 371 2 Am 1996 5C 309 ‘ 3 2002 CR1. LJ. 364 Harvana" in whkh it “as haid by fhg Punjab & Hwyarm High Ceur? fhm accusad caught hdd 0f the pmwsufrix and fried 1'0 open Th3 string of her salwm’ (If a woman To whom 10 wmmif raga bm‘ aufmge offered by a woman and used fame by her- a$mping me appalmm' dces noi- amaunf 1'9 m'tempf ta commif rape, but squarely faHs The ggf of Li$e 9f zrimina! farm with intent m ommg¢ flag mades‘l’y of a ummqn gunishabk under Section 354 of the Indian Pam! Code. 10, On $512. other hand, judgmen? impugned is .supparfed on bahaif of Tha $mte/respondent 11, In crder To prove the guiH of The acgusedlappgHm'r, the prbse¢ufion is rgquired m e5tqblish fhaf, (i) On fhe dam of incidgnf +he age of the .pr-osecmr-ix was 13 yeqm, beiQw i’he age of 16 year's, .r {iii} He has ¢ommifted criminai hause trass—pass i,e., enfered in fhz {muse 0f fhzg pmsew+rix wifh inmm to zommif effancz pxiinishcxbie imprimnment far life, (iii The appeliqnf has m‘hampted m cammii intercourge wi‘rh hzr 12, Age 0f fhz ymseautrix is no? mu¢h disputad. an behalf 0f The awellant On ihe afhar hand, fhg iriai ceuri- has asmr'mined her- age ci$ 13 years: PW-5 Jodunath Kashyap (Mousa m‘ #he pmsecutrix) has stmed that age of Ku“ ghagyawm-i was below 13 years en fhe dafe m“ ihs incident Hem date of birth is 15,732. Sha has exmnined by PW-E Dr. A: Kachhnp who was ascermined her age as 13 year's on The basis af her- phy$icai qppearqmz. 14 +aefhe$ were prgsent on uppar jaw and 13 fgefhes wgm grwenf on iawer gnw, total 27 Tee‘ihas were Frasen‘t 5e¢ondqry $mual ¢h¢m¢iers were fuiiy dgveiaped, but ‘i‘hey were a? the smge of developmem, On the. bosi$ of aforasoid submission and physical ayogomnce, hor age may be safely conferred a5 13 year$ Lei: below the age of 16 year-s 13.. In order to conned The oppeilom in The crime in quesfion, The prosecution hoe oddueed oral and medical evidence. The age, of Kis. Bhagyowa‘l-i (PW-6) was aseer-Toined by The Court as 14 years. She has sTaTed ThqT QT The Time of inoidenT she was in The house of her sTep—uncle-JodunaT-h Koshyop wiTh whom she used To reside, The 4 1984 CRI. L3. "I86 apgglmn‘r knmked her door and after opening #he dom‘, he anterad imo her hcuse and dzmanding tea and water- and tald. fhm he will see the TM PW-Z Ku. kaiyQma‘ti wa$ si't‘r'mg in cmm‘her roam The appelimf thraaf 1'0 Raiyqmm'i (ma! theraafi‘ar ska ran away from the house of thg prasegutr‘ix: Aygaauant caughf hold and lgy down on a co? and commih‘gd intercaurse wifh har. When she fried 1'0 cry, fhen he dosed her mouth and fhrgm', She kicked The appeHam. She. became. unconscious. Them was pain over her private par? and Heading ngar' her privm‘e. part When 5he. came, infa canscious, she told thz incident to Chm‘ur and Purni: 5e¢ond day she wen? ‘i-o her mother- who was residing q‘i village Kashmi and again 5m came back ‘l‘o Thz house of her siepnumie and wgn‘i h ihe poiice siation for lédging ihe FIR. PW-z Ku. Raiygmaii has stated timi- a? iha fima of the incidan‘i‘ she was in 'ihe house of ihe pmsew‘irix. The appeiigm knockgd the door- and, affar opening thz door, he demanded 'i’he water and directed her i0 go in her hause. Thereaf‘i-er, she wen? to her hduse, PW-3 Chem!" has no? supporfed The ca5e af The pmseeutrix and ltd-er on he was declwed hastile. The pmsecgrfign has mi examined Purni Bai. She was examined by the €ourt In her- er‘oss-examina‘i'ion, she has no? supparied the case of the prosecution, PW-5 Jadunafh Keéiyag haS sfaied that the emeecu‘trix was living with him. When she eeme back to hie howel the groseeutrix was not in his house. He came to know through Chotur and Jitendm that she had gone to her mother at yiliage Kashmiu When she was oalied by his brother—in-iow and nephew where the prosecutrix toid the incident to him. Thereafter, they went to the police station and lodged the report The proseeutrix is aged about 13 years and her date of birth is 15192 recorded under school registrar-i PW-S A, Kaehhap has stated that on 241.2005 he had examined Ku, Bhagyawati who was aged about 13 years: Her seaondary sexual characters were not folly developed, but they were at the stage of deveiopment‘ No external injury was found over her body. One lacerated wound of size i- cm. x % cm. was found over her perineum with slight redness and swelling and she feels pain. Hvmen was intent. Pubic hair was out and seized and the some was sent for chemical examination. On the basis of examination, he opined that injury found over oerineum 0f the proseoutrix may he mused by intercourse, but oomplete interoourse has not been committed upon the proseoutrix. He hos also given the report vide Ex.P,/16. He has aiso answered the query vide Ex. P/m and nnswered that vaginal does not admit a tip of little finger, ilk§d§d @ - 14.. E’W—Z kaiyamm‘i was witnagsgd on 'Hne par? of the incment When fhe apgzilm‘t same m fhz h9u$e Qf Jadumfh Kashyap, at thm‘ fime she was presen? and she was directed by fha gp'ngllmtr to go ta her hausa and Thereafi'er she. wan? from fhe housz: (:f The prasegLmix‘ PW-b KLL 3hagyawaii has ql5o stated, the same. thing and hag stamd that whan ‘H‘xe apgeiiant ‘H‘waa‘r her, fhemnfmr she mm (may PW~6 Ku: Shagyawafi has. sfafad in hzr gmss-examim‘rian fhm‘ when shg came. into mmdaua no domes ware pm$enf éver har body and blood was gresen‘r in the. bad-$hegt Shg has gist; surfed. that she wa$ feeling pain; Ska has specifimlly daniad thai' shz is saying that the <zppzucmt hog zommi‘rted intemourse on hgr- UR??? m} Qniy on thg busLs of blaad, she has spacificqlty sfqted fhq‘!‘ fhg apyeuam fell down her on a m? and sifting over her bady, §ha has QEso admi‘l'ted 1‘ha? she has confmfed with same insfii'mion as alse camacmd wifh TM. mgdia and her- step-uncle has gsed, f0 say thtrr if *hey wil! lose 1‘his case, ‘l'hen ‘l'hey will be defame and condemnzd< Shg has smted fha?‘ Tha appallgn‘r has cemmii-fed infamourse with her- (m $713) The appeuant has no+ fhe fime of the waged incident is suppcmfed by fhe stmemznt of PW-Z Ku, Rqiyamqfi and PW—é Ku: Bhagyawmi, git-i aged abauf 14 yearg and $he. is able to undawmnd the nor-ma! phenomena. She has specifically sfafed Thm fhe appgllant has mmmmgd interaour-se wi‘th her (WI-f m, Shg was mane in hgr house at fhe time 0f mmmissian «3f aileggd incment Her fairher was died earlier: Her mofher has remarried wifh anmher persan and she is rasiding with her stag: uncig (Mausa) Jadunafh Kashyapi Whan she was with anofher girl KL; Raiyamm‘i (PM/“2) aged about 13 year's cf night, appa‘ldm came. 1-0 her hohse and afmr asking Rqiyqmoi‘i from the house of the ymseaui'rix‘ the appallan‘t switched off *he lighf qnqi afier mughf hold of hgr hands appellant fell down her- on a m? and wmmi‘l‘fed lntercgursa will: hgrn As a resulf of inter-saws; them wo§ pain over her inriva‘le par? and bleeding from har privmz port This defenco has oross-axumined 'l'ho agipollan‘i, but defence has no? baen able lo Show onyi-hing that the apogllont has not entered into her hoiige and oommittgd sexual intermurse with her (772?? dim) after switohod off the light: Har $tatemant is supported hy the medical evidence: The progecutrix was examined by oootor after lapse of 5 doys and Dr‘ A: Koohhag: (PW-8) found one locorotod wound aver her perineum having rednos$ and. mailing: Aftor lapse of 5 days, pmsznoe of fresh injury on any mpg or attempt to commit moo wouid not bg poosiblo, but iqiurios, swolling “and rednoss Show that somobody is attempted to commit intorcouroe offerod any explanation for my fal$a implication or any other cause. Her presenoo at wi‘th ham 5+nfement 9f fhe. pmsgcu‘rrix Ls supportelj by the: mediw? evidemg and. circumstamig! evidence of PW-Z Ku. Raiyamqtin Her clcthg and pubit; hgir were taken. Offer 5 day$ (pf The inCidenf. Sperm wera not fQund over her cloifhas and gnublir: hair vide EXP/1.9, In absenge af syerm affgr 5 days what: spacifimlly she hm washgd the clathes is natural, Stafemem- of’fhe pmggcufrix cormbamfed by the mzdiml evideme inspire confidence and irustworthy. 15. Afmr‘ appreciming the evidence available on recordl the trig! eouri- hes eonvici’ed and sentenced the apyeilani as afarementioned, (bmic'rian is bqeed on reliable evidence and daes not cg” fer qny inferference, 2B i$ also dear from the evidence adduced on behalf ef the pmeeeution fhm fhe appeilant has; entered in the house of 1he pmsecutrix wifh infen‘t to eommit the offence 0f rape which is punishable imprisonmeni' for life“ 16) As regards the ques‘rian of sentence i5 concerned, the appellant woe aged ' about 29 yegre at the time of cemmiesion of offence and he has attempted to commit mpe with a girl aged ebgut 13 years whe hee earlier lost his father and her mother hes remarried with another gerson and she is living under the eeurtesy ef her step-uncle (Mouse) Jadunath Kashyap Show that the agpellent has tried to take the benefit of her helgalessness‘ Looking to the afereseid facts, the appellant deserves no symeathy. Sentenee rigorous imprisenment for 5 years and ta pay fine of Rs. 5000/—, in default af payment of fine to further underge rigorous imprisonment for 1 year for commission of offence punishable under section 376/511 of the Indian Pencil Code is gust and proper. Taking into oonsideration his intention, the conviction under Section 45G of the Indian Penol Code is also just and prayer, 1.7: Consequently, the aopeal being devoid of merit is lioble to be dismissed and it is‘hereby dismissed l T.P.Sh'arma l i Judge l Sd/- \ei