er.Appea1 m.§'} af 2002 APPELLANT : dmndrahhan 5/0 Motiram samami. TN JKTL aged 20 yeam, resident aE Village Gabdiw Police Station ' Arjunda, Distrgst Burg. Versus RESNNDENT state of Chhattisgarh, « Threugh the District Magistrate mrgc MEMORANDUM a? CRmINAL APPEAL UNDER smemmu 374(2) ow mmw.‘ ($6 Filed‘rnnAw Qlé’uggmm b, \ IN THE HIGH cmRT OF JUMCATURE AT BILASPUR (c.G.) ( Manoranamn ef criminal Appeal U/s 374(2) of cc.P.c.)§ Wm WW single Bench: Hon'bue 5hr: omgaamhcb Desmm, J. Chandrabhon Versus Sfa-l'e o‘fChhaffisgarh 5hr: K K Dlxrf mfh Shn C R 5&m Counsel for fhe aypellanf Sfafe Shrl Ashlsh ‘ Shukla 6A. wlfh 5hr: U.K.S.Chcndel, P.L. for the 4 - ORAL DGMENT ~ (Passad on 13’“ of Janwry zoos) This appeal is directed against ihc Judgmcn? dafed 27.02.2002 delivered in Sessions Case No.376/2001 by Shri A. K. r Samam Ray, Firsf Additional Sessions Durg whereby the appelimf was convicted under- Secfion 450 and 376 (1) of me I.P.C. and was sentenced to undergo rigorous impriwnment for 7 years and a fine of Rs.200/- and in default of fine to undergo additional R I for 3 months under Section 450 IPC and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 200/- in default of which to undergo further rigorous imprisonment for 3 months under Section 376 (1) of the I P C 2. Briefly stated prosecution story is that on 178 2001 Budhwantin Bai P W 9 who belonged to an agriculturist fainilv was alone at home being not well Finding the prosecutrix alone in the house the appellant forcibly entered the house of the prosecutrix y’r,— -7.— closed *he door from insida and commmed rape on her. In fhe evening, when fh: parents rammed from the field, me promufrix informed them abouf fhe occurrence./F.I.R. was Iodged in Police Simian Arjunda on,18.8.2001 'vide Ex.P.9-A by the proseoufrix.‘ Dr. (5m?) M. Shrivostova P.W.3 examined the proseou‘rrix on 18.8.2001 and found no marks of external injury on her body. However, during infernal examination, she found fhaf 'lhe vagina of fhe prasecufrix was fighf and admiffed one lime finger. There :was .k . a fear in fhe foreheffe wifh slight oozing of blood. There was a fear in fhe_ hymen at 6 ‘0’ clock position with some oozing of blood. Dr. (Smt.) M. Shrivastava P.W.3 opined that the sexual interéourse was‘possibly done with the prosecutrix. Dr. Neerqj 5hinde P.W.4 examined the accused-appellant and found that he was young a person of 19 years with no external injuries and well developed genitals and was capable of doing sexual intercourse. The ossification test for determination of age of the praseeutrix was conducted by Dr. A.K.5diu P.W.10 who opined that age of the prosecutrix was about 15 years. Katwari Birth Register wherein the date of birth of the prasecutrix had been recorded as 1.10.1986 at the time of birth was seized vide Ex.P.7. 3. After completion of investigation. the accused-appellant was prosecuted under Section 450 at 376 (I) of the I.P.C. l The accused- appellant abjured the guilt. pleaded innocence and fake implication in defence and led no evidence. The prosecution examined as many as 11 witnesses. Relying upon the unrebutted testimony of prosecutrix which was duly corroborated by medical evidence of m; " @ .— $.— Dr. (Smt) M. Shrivasfava and also 'rhe evidence of Kotwu- Rommh P.W.5 and fhe errh-y in the Kofwari BiMh Register Ex.P.8-A. ‘rhe learned Mal Judge convicred .and sentenced' the appellant as afomsaid in paragraph 1 (supra). 4. Learmd counsei for ihe appollanf has assailed the aonviciion of The appellani' mainly on the ground fhai the appellant had a love affair with the prosecutrix who had‘ consented to the sexual intercourse. This was proved By the medical report __Ex.P.4 of DJ'.f(.Smt.) M. Shrivastava P.W.3 who found no external injuries on the prosecutrix. In the alternative. he relied on a decision rendered in 5fafe of Haryam v. mmchmd reported in 1998 é M.P.w.N.'[911 (sC) and prayed mar since ma appenmwas a fim offender and aged .19 years on the date of occurrence and had already undergone incarceration for a period of 4 years and 4 f months. the sentence awarded should either be reduced to already undergone or the appellmt should be given benefit of the Probation of OffendersAct. On the other hand. 5hri Shukla. learmd oounsel appearing for the State has supported the judgment of trial Court and has contended that the case lav cited by the counsel for the appellant has no application to the present case since the case in which the Apex Court granted‘benefit of Probation of Offenders ' Act to the appellant was one under section 376 read with Section 511 of the VI.P.C. 5. Having considered the rival submissions I have perused the record of the trial Court. The testimony of the prosecutrix P.'W.9 clearly shows that‘while she was alone, the appellant entered the f,”/o, v 4 wyw ,—\1- house a1 about 12.00 noon and closing fho door from inside commitfed rape on her, In pamgr-aph 14, she has std-ed ‘rho‘r the accused gagged her moufh, as a rest/m of which, she could not shout of the time .of 1he rape. The testimony of the prosecutrix not only inspires confidence and is wholly unrebutted in cross- examinotion but also finds support from the testimony of Dr. (Smt.) M. Shrivostova P.W.3 who fomd a tear in hymen with blood oozing therefrom and also found a tear in the forchette with flight oozing of blood. 6. Having given my thoughtful consideration to the evidence of the prosecutrix and the medical evidence. I am of the considered opihion that the trial Court has rightly held that the accused appellant had committed rape on the prosecutrix on 17.6.2m1. So far as the age of the prosecutrix on the-date of occurrence is concerned, the evidence of Romnath P.W.5 and the entry in the Kotwari Birth Register Ex.P.8-A conclusively establishes the date of birth of the prosecutrix to be 1.10.1986. The entw in the Register maintained by the Kotwar is a primary evidence for proof of age. Not only the trial Court while recording the evidence of the prosecutrix but Dr. (Suit) M. Shrivastava P.W.3 and Dr. AKSdIu have also opined that the age of the prosecutrix was not more than 15 years on the date of occurrence. However. the primary evidence in the shape of Kotwar Birth Register Ex.P.8-A clinches the issue and proves beyond doubt that the prosecution was aged less than 16 years on the date of occurrence. In this view of the matter. the argument of the learned counsel for the V/ _§/ appellan? ihat fhe prosecutrix had consenud to fhe sexual infercourse due to a love affair wifh the appallun? do“ not hold ground and bacomes inconsequem-iol. 7. Having fhus commend the evidence lad by the prosecufrix in H's entirety, I om of fhe oonsiderod opinion the? me learned friai Judge has righfly convicfed tho appeihnf undar Section 450 and 376 of the I.P.C. The submission of learned counsei for fhe oppellanf that The oppeilnn'i shouia' be given the benefit of Probation of Offenders Act is unocceptobie. 5o for as the sentence marded_5y the triol Court under section 376 I.P.C. is concerned, the submission mode by the learned counsel for the appellant sis that the“ appellant was aged only 19 years on the date of occurrence and had already undergone incarceration for about 4 years 4 months. Under Section 376(1). a minimum sentence of imprisonment of seven years is prescribed. Considering the facts and circumstances of the case and the age of the, appellant on the date of commission of offence, ends of Justice would be met if the sentence awarded to the appellant under section 376 I.P.C. is reduced to R.I. for seven years. 8. In the result, the appeal is partly allowed. Conviction of the appellant for offences under Section 450 d 37o of the I.P.C. and‘ the sentence awarded under Section 450 I.P.C. is maintained. The substantive sentence of imprisonment awarded by the trial Court under Section 376 I.P.C. is reduced to RI. for 7 years. Sdl— 1 l Dilip Raosaheb Deshmuifh ‘ i Judge