'i::'?^.. !""'^~^. i"";.':.,. 7"',if- ^^ "\w C! AT BILASPUR iie Mr.T.P.Sharma.J.I Criinin^i Appeal No. 91 of 200; APPELLANT Pradeeo Samaihdar VERSUS iPONDENT State of Chhattisgarh Post for Dronouncement of judgment o" '7 -2-2009 Sd/- T.P. Sharrna B'.»:: 'v'^,a^ CTnJs ;n Jcii) ftESPON&ENT: Pradeep Somjhdar, S/o /.Aanas \ Sam.jhdar, Caste Kayastha, aqed 40 yea-s, ft/o E.Vv'.S. 352, M.P. Housing ioar-d, P.5. Jan-.ul. Distt. &ur-g (C.G.) Versus State of Chhat+isgorh, Through Station Incharqe, P.S. Jamul, bistt. Dur-o. {Appeal under Section 374 of.rthe Code of Criminal Procedure, 1973} Prssent: Allir. 1-1.B. Agrawal, Senio" lAdvocate with Mr. C.K. Sahu, Amocate the appeiSant. Miss Sangeeta AA,lshra, Panei Lawy-er for the State/respondent. for fir, :;S:::R-E:'> nei (Passed on ' / February. 2009) 1. This appeai is directed against the judgment of conviction &. order- of senter.ce dated 26-11-2002 passed by the 7 Additiona! Sessions Judge (Fast Track Cour't), t)u"g in Sessions Trial No.39/2002, whereby learned Additional Sessions Judge o.fter hoidiny the Qccused/appellant guilty foi" coinmission of offence under Section 376 of the I.P.C. and sentenced him to undergo R.I. for ten years & pay fine of Rs.5,000/-, in default of >ayment of fine to furt'ner undergo S.I. for four months. 2. Judgrnent is chaiienged on the ground that without any iegal and ciinchini evidsi"ce. the Court bebw has convicted Si sentenced the aDneHant in the aforesaid rnanns?' and ther-eby corniriitted iiiegality. 3. Cose of the pros.ec.ution, in br'ef, is tbct the prosecutrix (PW-1). step- daughter of the accijsed/appellant &. daughtar fr.om -first husband of the second wife of the accussd namely Smt. iiotna Samajhdar (PVV-2), viias I,,!«''"""as,,, ^s""^-''" 1 ?. ^ -TT^ j, about 13 years on the date of incident i.e. 21-8-2001. The prosecutrix was residing with her mother and step-father i.e. the present accused/appeilant. In the year- 1999, the accused committed sexual intercourse with his step^douqhter. The accused used to commit sexual intercourse on the prosecuti'ix. i.e. his s+ep-daughter for about two years. First time when the proseriutrix objected, 1ne accused threatened her t'nat if sh®wiil disciose to h.er mother, hs would kill her & her mother. On 21-8-2001 at about 7 p-m. when the prosecutr'ix was alone in her house, the accused came and again comiT.itted sexuql intercoupse on her. At that •f-i time, mother' of the prosscutri'X 5m+. Ratna Samajhdar (PW-2) cawe ond SO'A' ths incident whereupon the aceussd requested he.'r not to take any action. Fi"stly, the prQsecutr-ix iodged the F.I-R. on 25-8-2001 vide Ex.P-1. Her underwear was seized yide cx.P~3. 5he was sent for medical examination vide Ex.P-10. She was exaniined by Dr. Pratibha &ani (PW-12) vide Ex.P-lOA who found that the prosecutrix was occustomed to intercoursa and was p"egnant. The accusad v»'as olso examined by the doctor- and he was found capable of comrnitting sexua! intercourse. Spot rnap was prepared vide Ex.P-15. Seized a"tic!es were sent for chewical exairiination. Discharge certificate of the prosecutrix was seized vide Ex.P-14. !-ler school entry r'egistsr Ex.P-6 was seized vide Ex..P-5. Cer+ificate of date of birth of the Di'osecutrix was issued vide Ex.P-7. Underwear of the acci-ised was also seized vide Ex.P-8. 4. Afte" cornpletion of investigation, charge sheet was filed before the Judicial Magis+r'ate First Ciass, Ourg, who in turn, cornmitted the co.se to the Court of Sessions Judge, &u"g, fro,"i whers lesrned 7 Addltional Sessions Judge (Fo.st Tr-ack Court), Dur'g r'eceiyed the case on transfer for tnai. 5. In order- to prove the auilt of the accused, the prosecution has examinsd as 'many as tv<eive udtnesses. Statsment of the accused was recorded undsr Sec-Mon 313._of the Cr.P.C. in which he denied the circunistances appearing agair'st hirri ond piended innocence & faise implication, The Q'cc.used aiso adduce-d the evidence of defenca witness Raghunath and has taken specific dsfence that his iwife Rotno. Samajhdar^used to compei 'ner* •:i«3 to r"uto-te th<> house in her nome. she used to auarrel with hin"i ond she has falsely imp'lcated hirn at the instance of her daughter. ftaghunoth (DW-l) has stated in his .evidence thot Ratna Samajhdar used to corr.pel the cccused +o triutote/transfier ths house in her' nQrns wihich was recorded in the name of the n'-o-l-he" of the accused. Ratna Sawaihdor aiso used to threaten the accused thot i-f he wil! not transfer' the house in 'ner name, she wi!l book him in any case. At present the wife of the accused is residing in that house. 6. Afte" offording opportunit^ of hearing to the porties, the Court below has •'•!. convicted &. sentenced the Gppe'tlontas afor'ementioned. 7. I have hea"d iear-ned counset for the parties and perused the judgment irnpugned as also the rscord of the Court beiow. 8. Learned counse! fo'r the appeiiant sub'rtits that this is accusation of exceptional natur'e in which charge of rcpe agoinst the father with his daughtar has been leve.l'ed, The accused has not committed any offe.nce wi1+i his doughter who wo.s residing wi~h hira. Mother of the prosecutrix Smt. Ratna Sairiajhdcr (PVi/'-2), who is second wife of the accused,used to compel the accused for trcnsfer of house in her name which was recorded in the na.ms of the mothe" of the accused, when the house was not •iTansferr'ed in the name of the mother of the prosecutrix, she has faissly implicated the accused by making faise accusatlon of rape on her daughter. Statensents of the witriesses are not reliable and ti'-ustworthy. "he I, learned counsel appaoring on behalf of the Stote/ respondent supported the judgnent and submitted that this is a case of rape comwitted by father on his daughter' which is shocking to the judicio! consaence as aiso the humanity. The o.ct of the accused is inhuman and he has crossed the limits. Tne prosecution has proved tne case against the accused beyond ail reasonabie doubts. 10.In order to appT'e.eia+e the contentions of the parties and estabiish comp!icit^' of th.e occused i'f, the crin-ie in queation, I' hcive examined the evidence adduced o" behalf of the prosecution. s't:''^:'w% "»• '''•» '^ :irsi?SiJi& ! """'"' .rf' !^»«-'" -..^iaf The prosecutrix (PW-1) has deposetj that the accused is her father and she was residing with her father & rfiothe" Smt. Ra+na Samajhdar (PW-2). On 21-8-2001 when her nsother was not present In hsr house, only the accused <S. herself were Dresent, tiie occused lay her on the bed and after •^, removing her ciothes inserted his maie organ into her privats part, at that time, he" mother' came and annoyed upon 'ner husbond. She told her mother t'nat the o.ccused is comwitting rope an her since lost two years •» under threo.t. She also toid he" inother that pr'esently her menstruoi cycle has stopped and she is-pregnant. She. has also stated that her pregnancy was terwi;"ated in the hospjtal.«.She bdged the report vide Ex.P-1. At .'< . tho.t tirfie, +he. prosecutrix uwas studying in Class-V and her age was 12 years. She has further stoted that 1+ie accused has marrieci her mothe" when she. was aged about 1-wo years. The. prosacutr'ix was examined by the doctor. 12. Smt. Ro+na Samajhdcr (PW-2) hos deposed that on the aileged date of incSdent at about 6 p.m. when she came to her house and entered into the bed rooin, the accused, who is her husband, was corr.mittinq sexual intercourse on her daughter i.e. +h®prosecutrix, she saw thein whereupon, the accused requested for excuse. i-ier daughter told her thot the. accused used to cominit rope on her under threat. Finally her daughter lodged the feport. bate of birth of her daughter is 3-8-90. The prosecLit"ix is her daughtar frorp her first husband. After the death of her fir'st husbond, she was residing with the accused since last ten years. Smt. Anita (PW-5) hos stated that her aister Smt. Ratna Sainojhdor (PW- 2) has norrated t'ne Incident to he.r. 13, The prose.cu+rix wos exawined by Dr. Pratibha &ani (PW-12) who has stated tnat on 26-8-2001 she has examined the pr'osecutrix at that tin'ie, the prosecutrix wcs pregnant and she was aci sexual intercourss. rie.r- age was 12-14 years. vide Ex.P-10, :customed to 14. Rsghunath (DVI/-I) hgs deposed that on the grou.nd of transfer of house, . mo+her of tne prosecutrix ho.s threataned the accused that if he will not tr'cnsfe" the house <n he.r naine, sh®wil! foisely impiicate him. In his r fe.,.»,.5a'®s • 1 (g) cross-examination, this witness has stated that he has Visii-ed tha house of the accused prior to "hwo y'ears, during two years period he never visited the house of t'ne accused, he himsetf -t'old thot one or two times he met ths accused on the way. He has denied the suggestion that in order to saye the accused he is makina. the fa!se statement. 15. The prosecutrix (PW-1), who is step-doughter of the accused, hos odmitted in para 6 of her cross-examination that her mother used to go out for work and to earn livelihood, but the accused never go for work. She has denied the suggestion that her mother used to quarre! with her father for 1-ransfe" of the house in which they are residing. She has aiso denied the suggestion that her mother has falsely implicated the accused. 16. Defence has cross-examined the prosecutrix (PW-1) &. her mother 5mt. Ratna Samajhdcir (PW-2) in detail, but it has not chaiienged the cowmission of sexual intercourse by the accused on the prosscutrix and i+ has not been cbie to bring anything in their cfoss-examination to discredit their tastirnony. Admittedly, this is an exceptional case of rope in which step-daughter has levelled allsgation of rape on her against her father which is not norwal. But fo!se accusation by daughtor agoinst her father is also not norraal. The prosecutrix (PW-1) has categorically stated in hei- evidance thgt the accused is the person who is his ste.p-fother and has committed rape. on her, and he used to commit pape on her for tost two years under threat. The accused was in dominating position and by misusing his position oniy on the ground that the prosecutrix is not his real daughter, he has committed sexua! intercourse on her to satisfy his lust. Evidence of the prosecutrix is corroborated by the evidence of her mother. Their evidence inspires confidence uid it is trustworthy. It is sufficisnt for drawing inference that the accused has committed sex.uol intercourse with the prosecutrix. 17. As regards the question of oge of the prosecutrix, the Court has ascertained the-ege of •rtie prosecutrix as 13 years at the re!evant time. This fact has been admitted in her school recor'd-Ex.P-6 which has been seized vide- Ex.P-5. K.N. Tripothi (PW-3), Head Master, has proved thsse llt.-rfiNS' documents. He has stated in his evidencs that thev used to record the- date of bir-th of the students on the basis of the information giyen by the psrents. The pfosecutrix (PW-1) has aiso stated that her ags is 12 years on the date of incident. Her mother Srnt. Ratna Somajhdor (PW-2) has also stated that the age of the prosecutrix is 12 years at the relevant time. This fact has not jaeen chalienged, rather this fact has been supported by the documentary evidence which shows that the age of the prosecutrix on the date of incident was below 16 years. Commission of sexua! intercour'se with' a woman beiow the a@e of 16 years is an offence of rape as defined under Sect-ion ^75 of the I.P.C. and it is punishable unaer Section 376 of the I.P.C., the questlop of consent is inimateriai. 18.In the case of Slriyo alias Shrl Lai v. Stat®of M..P. (2008 AIS 3940), the Apex Court has held that "Rape by father - Is an unpardonable act - It is not onlv a loathsome sin but aiso abhorrent - Accused's act have left an indelible sca" both physically and mentally on victim - Father deseryes no ieniency in punishment". 19. The Court below after appreciatin9 the evidence avaiiable on rscord, under Section 376 of the I.P.C. Conviction of the & clinching evidence and it is sustainable under convicted the appeli appellant is based on 20.In this case, the accused/appellant is step-fother of the prosecutrix, he has committed rope on his daughter, he does not deserve any sympathy. Sentence of ten years & fine of Rs.5,000/- are Just and proper. 21. For ths foregoing reasons, I do not find ony force in the appeai, same is liable to be disrnissed and it is herebv dismissed. Sd/- T.P. Sharrsia Judge