HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.447 of 2006 APPELLANT: (In Jail irendra Kumar @ Gappu, S/o‘ Dhana Ram, aged about 27 years, R/o S‘urfonga, P.S. Nevra, Distt. Raipur (C.G.) Versus The State of Chhattisgarh, Through P.S. Nevra, Distt. Raipur (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} RESONENT: PD Present: Mr. Shailendra Dubey, counsel for the appellant. Mr. Sanjeev Kumar Agrawal, Panel Lawyer for the State/ respondent. (A, ; Single Bench: Hon'ble Mr. T.P. Sharma, ORAL JUDGMENT (12—8-2009) 1. This‘appeal is directed against the judgment of conviction & order of sentence dated 13-12—2004 passed by the 11th Additional Sessions Judge (F.T.C.), Raipur in Sessions Trial No.305/2004, yw‘hereby & whereunder learned Additional Sessions Judge after holding the' accused/appellant guilty for commission of offence under Sections 376 & 450 of the I.P.C., sentenced him to undergo R.I. for ten years & pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for one year on both counts. . Judgment of conviction & order of sentence is challenged on the ground that learned Additional Sessions Judge has convicted sentenced the appellant without any clinching evidence, and thereby committed illegality. . Case of prosecution, in brief, is that the prosecutrix (PW—2), aged about 6 years, was present in her house on 11—2-2004 at about 5.30 p.m., the accused/appellant who is resident of Village Sarfonga, came to her house and tried to provide liquor to her, and after tearing her underwear he inserted his male organ in her private part, her private part torn and blood started coming out of it, her brother Mithilesh started weeping and cried for help. Khoobchand Verma ) V r & soun d when h a towards the hse of the secutrix, the us was trn scp from the house, bu cght hold of sed with e l f other villars. e d he name of t sed o which the accused oi his n as Virendra Kumar o rfoa. Tey ook the prosecutrix h accused to P Sation evr e Khoobchan Verma (-1) odged the l rp vide E1. erwea o the proecutr containing oostains was eized vid EXP-2. O glass ing sll of liquor, on ‘cle, one ar of cpal re seized vide E—3 from & near i he of th rcu. Th rosecutrix w s for medica xion vi X-4A. a xained b r. lpana Bakure W—9) vide EX.— blood as coming out fm te vagina of the prosecrix and s as eeling much in, evn she s not in a poi to la upn t table. Th Police h ot pduced the e & pen or ination of the prosecur, on which this witness h refered te proscutrix to medical college. Th rosutrix wa amine y Dr. Smt. Anita a PW-20) vid x.19. The prosecix wa havg eriou pi oer her privat ‘ a.’ is wit as prred th vaginal sle he rosecutrix. usc etwee s & agina wer torn. She wa referred for surgry. Sh was subject o sexual intrcous. ndrwear of the cus as seized ide Ex.P— on the same ay. He s also sent r eical exntion a e w xained by Dr. G.R. Agrawal P1) ide . l f lco was coing r his mouth. He consmed coho. One scratc was found ov is nose and on ctusion wa also found over his fore hed. T witness has aned his uerwear vi Ex.P—1. The accused as capable to comit sxual ntercourse. Spot mp was pepae the Police v Ex.P-15. anal ses of prosecutrix re seized vide x.3. Patwari repare spot vide Ex.P-. ized articles er sent for chemical nysis to th State rsic Science abory, Ra vide Ex.P-22 an prence o pmatozoa on the ear of the psecutrix, presece of blood o the underwear & a slides o he prcutrix was confirme vide report Ex.P— . Statements f th witnesses were eded under Section 161 of th '..C_ nd after completion of-ivtigation, harge sheet wa ed for th Judicia aate Fist Clas, aipu, who in tur comted the case to th Court of Sessions, Raipur from wher d an e sw ou pro acced yig to eae t he au the accu th hep o ge H aske t he accu n td ame @ Gappu f Sang h t & te olice t Na wher d PW l eort X.P- Undr f six bld s e . ne hav me e yc pi hap we x.P t house e posetrix e p as ent l eaminat de E.P She ws em y D A (P1 P4, w ro h ut he w f pa e wa siton y o he e ave n ro consnt rmissio f exam tix as r h e e pec s exd b Ydu ( e EP- utr s in ss an v e prt' Th ness h epa e ids of t p Mles bn anu v e s e e ed t ere Ue aced w v 5 d wa fo md amia nd h as em (W—1 v ExP-10. Smel o aohl m fom had u all h er h e on s a his exmi nd de 1 w m e i a rrd by ide’ Vgi lid the we ‘ EP-1 pd map 6 Se we aal e Foen Lorat ipur d es f ser undrwe ro n ver vaginl f t ose d 23 o e rcor e ‘CrP. a nes c s fil bee e l Mgistr r s Rr n mit e e lernd 11th Aional Sessions uge F.T.), Raipur received the n ansfe or trl rer to prov th gt the cused the psecution has exed as m a tt wtness. xamion the accused nducted ndr Si 313 of the Cr.P.. n h he denied stans peag aaint h ad ieade innocence & mlicati. er fordi ortunity earing to the rts learne tioal sions ge hs td & sentenced plant as afmei. . ha heard lened couel for the partie and perused the ed jugent as al t recor o the tria Cour. eed counse for the ant arg tha witt ny evidence of ification te cuse, te our elo hs convicted & ‘ ece the ant o e bis o surmise jectures not sufficiet rrant niction O he other h, laed counsel for the Se/respondent ored the dent ed and aue hat this is a case of ae ddti Jd (.C case o trr f ia. . In gd e e uil of ac, ro amin any s weny ise Enati of was co ue ecton C i whic the circumce aprin gs im n pd false ipon Aft afng opp of h paie, d Addin Ses Jud a convice the apel orentoned I ve ar ns s impugn dm so he d f l t . Lar.n l ppella ued t hou a ident of h acd h Ct bw a sentnd appell n th as f s& con n to wa cov. .n t and ern tat suppt jugm impugn rgd t r wit min child six ar ol sing seri njury on her ape h or of yes d cau ous i pra art. The prosecuon ha roved s ae y adducing ivte p ti s p thi cs b gen and reli eviene. cot able dc . rr to apriate t contentions of the paies, I have em the evd ae behalf of the protion. e rsecri (-), d about ears h dsed that on teful day t h ti f cidet se was rse n her house, cued came to her hous nd mande wter for drinking, lied wer to im, again e dean er and caught er, and tri to ompe e o nk quo, when she fed, the accuse caued e bit injury n r cheek and te olding h neck, ‘he'committed the offen wh her. She has o posed hat blood w coming out of her prite part and she t a poiion to w n ihge urine. , 10.Surendra Yadu (PW-6), another child witness aged about 12 years, brother of the prosecutrix has deposed that on the fateful day he & his sister, the prosecutrix, were present in their house, at that time, the accused'came to their house and sent him for purchasing Gutkha, when he came after purchasing Gutkha, he saw teeth bite In gde pec he rt xained ience dducd on secu . Th poutx PW2 age 6 y, as epo the fa a te me o inn h pent i the acs e a ded a she supp at h h mded wat hold of h ed cl hr t dri lir reus d s teth e upo he afr h er ce it als de t as va wasno in st alk ad dscar injUry over the cheek of his sister and laceration/torn on the private part of his sister, the accused was running from his house on which he cried, his father’s elder brother Khoobchand Verma (PW-1) caught hold of the accused after chasing him. Biood was coming from private part of his sister. Khoobchand Verma took the prosecutrix & the accused to the Police Station. 11.Khoobchand Verma (PW—1) has deposed that after hearing the sound of brother of the prosecutrix he went near the house of the prosecutrix and enquired, the accused came out of the house of the prosecutrix and tried to escape on which he chased, caught hold of the accused, went to the Police Station and lodged the F.I.R. 12.The prosecutrix was examined by Dr. Smt. Anita Yadu (PW-20) who found laceration between vagina & anus of the prosecutrix. She has ' taken three slides. The prosecutrix was feeling pain over her private i a part. This witness has also advised for surgical treatment of her' inJury. ' 13.Defence has cross-examined these witnesses at length, but it has ' not been able to elicit anything substantial in their cross—examination to discredit their evidence. Evidence of the prosecutrix is supported by the evidence of her brother Surendra Yadu (PW-6), Khoobchand Verma (PW-1) & Dr. Smt. Anita Yadu (PW-20). This is a case of rape on a child of six years old and as a result of such rape her vagina was torn up to annu-l which shows the severity of the offence. 14.After appreciating the evidence available on record, the Court below has convicted & sentenced the appellant under Sections 376 & 450 ofth‘e I.P.C. I do not find any scope of interference in the judgment impuned. The appeal is liable to be dismissed and it is hereby dissd. K J Sd/. l lT-RSharma v g mise