15. HIGH COURTOF CHHATTISGARH AT BMLASPUR rSB: Hoo'bteMr.T.P.ShaFma.J.l Cnnwnat A&peal N®.4^iM3^e2 APPEl.LANT VERSUS RESPONDENT Babaram Kumhar sort of Chamw Sai Kymhar, aged aboyt 37 ye^rs, occupafiotT - Agricuftufe, ResSdent of Kaiipur, Police Sfartion Ramanu|n^|at» Dsstrtct Sa^yja, CQ. State of CNisrt^arh ttirouglz PoNce Statiori Rainanujnagar, District Sarguja, Chhattisgarb. Shfi D.N Praiapati Goyti«etfw the appeltartf Shri Panteaj Shrlvasfesva PL forff'ss rsspondsnyStats. CRIKUftUM.. /W»EKL UNDERSEGTIOftk^M.Q^ Tt«€^>DEOF CR!KKNAL PROCEDUR& {C»lAyjUDGME6rF ^S2QQ^ Thfe app^al is dire^ted against th^ judgment d^ed 30 11 20C3S passed by the Special Judge, Ambikapyr, (^rgiwa) in Sp^al Case No 24/2000 convlGtingth^ aGcused/appellafrt for the offence puntshable uncter seetion 376 of the tndtaii Penal Code and sentertcing him to undei^e rigorous impFiscMtment for 10 yeais and p^ fine ofRs ^XX) 00, te defaytt of payment of fln^to furttier undergcy rigoroys iroprisonment fer six months 2- The jydgmerrt of the triat Coyrt is ehatieiiged er» th^ groimd ttiat without there being any cllnchmg and retiable evidence against tl1^ aGCused/aCT ltent leamed Trial Coyrt has coromitted an iltegalfty m convtetingandsenteneingNmasmenttenedabov^ 3. Case of the pFOsecution jn bri^ is that on 8.22002 prosecutFix Kateshari (FW-4) had gone to the house of onfrShiv Prasad at viHage Katipur for begging. When Shh/ Prasad te^t the ptee& after giving her atms, vv^. ^^s^ —-Z— aGcused/appeUant carn^ ttiere. took her inside the rooim o^ Shiv Pi^sad, bolted the ctoor from inside, removed hw cteh^ a& ateo <rf himself anct fbrcibly committed sexual intercoyrse witb her against her witl ai^d withoi* her consent She came to her hoyse weeping and nam^ed ttie^ incNerrt te> her parente Vittaae me<&ting was conveneri and tastiy on 10 2002 i e- after two d^s of the incident, FIR Ex- P-2 w^ledged. ProseeutrKwasmediealty examined by Dr (Smt.) Rajshri Singh and vid^ report Ex M1 she found 13 teeth over her upper jaw and 14 teeth (^rer lower Jaw, auxtttery and pufelte hair roomy and breast was develc^inQ and solict St»fevnd old rupAure Sn the hymen of fee pK^eeutrix afid her vagina admitt^l one fifiger ^^ity. Her Petticoat w^ seized vid& Ex P-6, two va@ir®tstid^^ ww& prepared vid^Ex; P-7 and spot map Ex P^ was prqEMared Appeltei^^was steo medieal^ exammed and fburidto be€3E>aNeofsem^t tatere<H^^ P-44. His undervwar \fl®sseized vide Ex. P-9 Ossifiesrtten te®twreis condueted to asGertain her age victe Ex P-16 and her age at the retevarA tim^ was ascertained between 14and16^ars Afterreeordingthestatementeofthe witn< ses under section 161 of the^ Code of Criminal Procedure^ ^•»d completion of the invesfigation, chs^ae she^l was fited against the^ accused/appellantir»ftieCoyrtofChjefJucl ialM^istrate,Anibit@ipur,wh© in tum committed the case to ttie Courtof Spedal Judge, Ambilcspur, whepfr Uie aGcused/appettent was tried, convicted and switenG^d as aforesakl 4 In order to establish the charge against the aecused^appeUant the proseGution has exwniiied as many as 13 witness^ ^^ement of tiw accused/appellant was also recorded undeF sectioii 313 of the Codle of Criminal Procedure in which hedeniedtfieevidenceappewingagainsthim in the prosecution case and pleaded hte innocenG^ aiid^ fetee^ fenpBeatjonin thecase r -3- ^: 5. After affording i»»pe»hinityof Iwaring to th®parties, thfrtrial Court h^ convicted and sentwiced the^ acGused/appellant as mentk>ned above 6 Heard counset for the parties and perused ttie materiat avaitetete <m record including the judgment of the trial Court. 7. It is argued by the counsel fw the sreetisecVappeMant that ttie accused/appellant has ncrt eomm^ed arw ofpenee ai?id has t»er»imptteated in a fetse case at the instenGe of TriloGhan, Premsai; Goverdl^ti and Bhauva against whom the wife^ of tt^e aGeuseeMappetlant had lodged a report for commisston of rape H^ furttier argueil that th^ accyse^appe^lant is in custody since 25 2 2002 ttiereby he has completed mor& thart sax yea^ and six months of jait sei^tenee whieh^ w^uld be^ sufteient to meet the ends of justice in th^ present case: 8 On the ottier hand the^ judgment impygrted is su^e^ted on bdhaffi of the responden^State^ 9 To estabtish ttie guitt <rf the aecused/appellarrt ttv^ proseeufion »s required to establish the fottowing ingredients: (i) that ai ttte^ time of ineidetit, pr<^eGub-(x was aged tekww 46 years; (ii) aGcused/appeHafrt has <?ommitteci foreifcrite sexyat irrter^our^ with hep against her wiW andwithout her consent: In order to eonnect the aecused/^p^taiit witb th^ erime in qvesttoriy the proseGiriion has aetetuced ocutar and medical evidenee in tbft present case. 11. As regards the question of age of the vietlm; ft was ass^sed by the Court as 15 years ProseGirtrix herseff has stated in t^ st^ement that she was 15 years of age Her fatheF Sukut Ram (PW-6) has atso stsrt^l that at ttie time of incident his daughter KaleshaN was 15 years of ag& Dr. (Smt.) -^- Rajshri Singh (PW-8) who mecUealty examified the prosecuNx foynd 13 teeth over iipper jaw and 14 teeth over lower jaw, auxiliaiy and public tetr roomy, breast was devetoplng and solid, there was okl ruptyre in the hymen and wigina admttted one finger easUy Ossffication test was GonducAed by Dr. MK Jain (PW-12) who has stated that on the basis of radfot^ical examination, age of the pFosecirtrix was between 14 and 16 yeara at the relevant time< Sukul Ram (PW-^ father of ttie prosecutrix in paragraph No. 6 of his statement has given the deteited infoFmafton re^aidirig her birth Thus on the^ b^^is of her plwsteal appearance a^ recwded in Ex. P-11, and the report of ossffication of t^, it is e&teblfehed tihat ttie proseeutrix w^^ below 1€years of age at th^relevant time 12. Prosecufrjx (PW-4) has stated in her evidenc^ that wrtien she went to the house of Shh^ Prasad for begging, accused^ppetlant took h@r insid^th^ room and forcibly committed sexuat mtercouree wtth her ytecused/app^lant has tried to ^tablish the fact ttiat the prosecutnx lodged a fefee f^>ort against him at the^ instence of Trttecrfian, Govefdhan, Premsai and Kiayvs^ against whom his wife had eaFlier lodged a report ofcontmission ©frape In paragraphs 13 and 14, the prosecutrix has ctented that she held the waist of the accused at his diFection white^ he was eommitting sexuat trrt»coursewitti her. She has not stated in hereross examination that shewas a consenting party to the act of the acGused/appellant Moreover; she nairated fce incident to her parente upon which vlllage nieeting w®scatted and thweaftw report Ex P-2 was loc^ed Th& st^ement ofth^prosecutrbeissupportedby PW-5 Shiv Prasadand PW-6 Sukul Ram. Her hymen was ofel ruplyred and in the absenceof arw fbrce^ ftetimeofrape; injuFyoveFthepivate^^^^p theviGtimwoukinotbepo^ibt&Accused/appeUawithasnotstatedarwthing in his stetement that the prosecutrix has falsdy implteated him at the instance of Trilochan, Premsai, Goverdhan and Bhauva against whom Ns ^ —s— wife had lodged a report for commission of rape Aiwellant has not been abte to elfelt anything to show ttiat how she falsety it?iNicat@d him and th^A too inthecase ofrapewhich ultimately would spoil her fi^re Statement ttie proseeutrix that she was suMected to forcible sexual mterooyr^ by the accused inspires confidence 13 After hearing coynset fer the i^urfes and w)i^ thiough evideiie^ availabte on record, 1 am of tti^ optokmAat tti^ Gonviefion recGrde^ by th^ frial Covrt is based on retiabte and GUnehing evidence and the same is not liabteto l»dfeturbed 14. As regards sentence; relying upon the deGteion of this Court in tb& matter of Yadu Kuraar Patet w. -Sta*& of C.Q. counse! for the accused/appeltant submits that the app^lantisincustodyslnce2522Q02 thereby he has eompleted SR€years six months a^id 43 daw erf jail seRtence and therefore^, the period ofjaU sentenee undergone l^ him would meet the ends of justiee In the case retied uiM)n by the coui^set for the appellant prosecutnx aged about 13 V^H% was ^ibjeeted to forceftil ^xuai intercoui^, her hyme^ was not ruptured btrt there were injuries In her private parts, the sentenc^ of rigorous infiprisonment of 10 years ws^ reduced t©rigorous impisonment fbr seven yeays. 16. Taking into Gonsideration the cirGymstances in whteh ttie (rffence was committed and the report was lodged by the prosectitFix oiily after the accused/appeUant failed to pay her the eompensatkm as directed by Vh^ vHlagemeeting, senteneedeservestoberedyced 17. Accordingly, the appeal is partly allowed. Conviction of the accused/appellant under seetton 376 of the Indiaa Penal Code is !2007(3)CGLJ464 -6- mainteined However; ttie sentence of rigorous iRipr^nroent of 10 years is reduced to rigorous impNsonment <rf 7 yeai^ and fine <>f Rs. 500C3^ Sd/- T.P. Sharma Judge ^ \-".,