^> ^^••^;.^^6 Appellant (In Jail) Laxmi Narayan @ Pappu S/o Guharam Satnami, Aged about 19 years, R/o Chhatona , P.S. Malkharoda, Distt- Janjgir-Champa (C.G.) Versus Non-applicant ^' s IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. 3.32^ / 2007 State of chhattisgarh Through Police Station Malkharoda, District : Janjgir- Champa (C.G.) CRIMINAL APPEAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 HI6H COURT OF CNHAmS6A^H ^T BILASPUR SlngJe Bench : Hon'ble Mr..Jystlc€Pritmker DlwaRer Cnmmai ApoeGl No. 936 of 2007 ^PPELL^NT RESPONDSNT Punni Bai @ Bangah.in Vfrsys State of Chhattisgarh APPELLANT ^'•iminaJ ADoeaJ No. 952 of_2Q07 Laxmi Naroyan @ Pappu .RESPONDENT Vcrsys State of Chhattlsgarh 4 ^' Mr, D.N, Projapati, counsel for the appeliant in Criminaj AppeGi No. 936 of 20-07 Mr. Dheerendra Pandy, counsei for the appeliant in Crimind Appeai NQ. 952 of 2007. AAr. Neeraj AAehta, P L.for the State/respondent. CRIMN^L APPEALSUNbER SECTION 374 (2) Of THE CODE JU&($M£NT (09.05.2011) As both the aforementioned appeals are arising out of the same judgment dated 25.08.2007.passed in Sessions Trial No. 11/2007, they are being disposed of by this common Judgment. 2. These Gppea.is are dir'ected ogalnst the impugned judgment and order dated 25.08.2007 pas-sed by A.dditional Sessions Judge, Shakti, District jGnjgir Champo in Sessions Tria! No. 11/2007 convicting the accused/appetJQnt Punni'Bo.i @ BQngahln for the offence punishabie under Section 366 A of the Indian Penai Co'de and sentencing.him to underQQ rigorous imprlsonment for 10 years wlth flne of Rs.500 u/S ^.^^^^\' 366 A; and convicting the accused/appe!!o.nt Laxmi Narayan @ Poppu under Sections 363, 366A and 376 (1) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fjne of Rs.200 u/S 363, undergo rjgorous imprisonment for 10 years and pay fine of Rs.500 u/S 366 A and undergo rigorous imprisonment for 10 ygars and pay f'me of Rs. 500 u/S 376(1) of the Indian Penai Code plus defaujt stjpulatjons. 3. Cose of the prosecution in brief is that on 16.9..2006 F.Z.R, (Ex.P-1) was lodged by the prosecutrix (PW-1), aged about 12 years dieging that on 25.8.2006 when she was at her home, th® accused/appeiiant Punni Bai @ Bcngahin calied her and when she came out from her house, accused/Gppeiiant Laxmi Narayan @ Pappu caught hoid of h.er hond and after gagging her mouth took her to nearby fence and there she was kept for haif an hour. She has further stated that thereafter accused/appejiants took her near the Godha mountain where the accused Laxmi Narayan @ Pappu committed rape on her and then he took her to Raigarh Chowk and then to Raigarh Rdjway Station. She has further stated that the accused/appeiiant Laxminarayan @ Pappu had promlsed her for marrJage. She hos furth.er stated th.at when she was sitting in the railwGy piatform, the poiice came th.ere and then she narrated the entire incident to him. She has further stated that she was token to her house by her reiatives and the viliage panchayat rrseeting was cajled and then the report was jodged. Based on this F.I.R., offences un.der Sections 363, 366 and 376 were registered agajnst the accused/appe!!ant Loxmi Narayon @ Pappu. On 17.9.2006 itseif prosecutrix wos medicaijy examined by Dr. Renuka Singh vide Ex.P-20. After investjgation, challan^os fi!ed on 15.112006 under Section 363, 366A and 376/34 of the IndianPenoJ Code. ^ Jf^^ f€l x.\. j 4. So QS to hoid the accused persons guiity, prosecution has examined as many css 15 witnesses. Sto.tements of the accused persons were also recorded under Sectlon 313 of the Code of Criminal Procedure in which they dsnied the chcu-ge leveied against them and pteaded their innocence and fdse impiicotion in the case. 5. After hearing iearned counsej for the parties the triol Court has convicted and sentenced the accused/appe!!ants for the offences Q.S mentioned above. 6. Heard counsd for the parties and perused the moteriai availableon record Incjuding judgment impugned. 7. Counsei for the appeliant - Punni 3ai @ Bangahin submits that in her cros.s-examination the prQsecutrlx (PW-1) has admitted the fact that she has falsely impiicated the accu.sed/GppeHant on account of some old enmity. He further submits that once th®admission has been made by the prosecutnx regording foise ImpJication of this accused/appeiiant, there remoins nothing against her. 8. Counsei for the appeilant - LGxmi Narayon @ Pappu submits that there is on inordinote dejay of about more than 20 days in jodging the FIR o,nd the said delay has not been satisfactonly explained by the prosecution. He submits th.at medjcol report of the prosecutrix does not <upport the prosecution co.se and'even her hymen has been found. intc.ct and, therefore, it cannot be said tho.t she was subjected to rape by this accused/appeilQnt. He further submits that €.y®nthere is no concrete iegaily admJssibie evidence In respect of the age of the prosecutrlx and mereiy on the basis of the statement of Chondroshekar, Kdtwo.r (PW-7), a finding has been given by th.e trid Court that she was oged about 12 yea.rs. However, according to him, this flnding is not correct, He submits that the .,t-"2?&!?^. ^.^ '^ ^r' 'y^~ ~''ss!!: ~^^: f/f "^ -~% %a:s. 1 SA-;y report was iodged Qgainst thls accused/appellant on!y when the accused/appeiiant has refused for any settlement with the prosecutrix ond that itse!f shows that it is a concocted cose. 9. On the other hand, it-has been argued by the State counsel that the statement of the prosecutrix (PW-1) inspires fu!! confidence of this Court and, therefore, the question of interference with the judgment impugned does not arise. He submits that the viilage Kotwar Chandrashekhar (PW-7) has been examlned by the prosecution and according to the kotwari register and the releyant certificates, the date of birth of the prosecutrix is 07.09.1994 which comes to iess than 12 year-s on 25.8.2006 i.e. the date of offence. He further submits that the accused/appeiiGnt Laxmi Narayan @ Pappu cannot derive any benefit of the medico! report of the prosecutrix because her medical examinGtion was done after obout 21 doiys of the incident and moreover, in many coses, tear of hymen in the case of the victim being minor is not found because the same remains deep seated. In respect of the appeiiant Punni Bai @ Bangahin it has been argued that even she is liable to be convicted. 10. Prosecutrix (PW-1) h.as stated in her evidence that she knew the GCCused/appeSiGnt ond on the date of incident when she was in her house, accused/appeilant Punni Bal ca!!ed her and when she came out of the house, Gccused/appe!!ant Loixmi Narayan @ Pappu who was aiready standing there, dragged her to a nearby fence an.d after removing h.is and her clothes, subjected her to rape. She has further stated that she couid not raise any aiarm as her mouth was gagged by the accused/QppeliGnt Laxml Naranay @ Pappu and she was a!so threatened by him. She has further stated that ofter corrsmission of the offence, the accused/appeiiant Punni Bai @ Bangahin agdn came there ond then she was taken ne.ar Geedha mountain and from there the accused/oppeiiant LGxmi Narayan @ Pappu took her to RaigarEi RailwayStatJon ond durlng this period aiso she wos subjected to threat by the accused/appeliant Laxmi Narayo. @ Pappu and then the police officers came thers and then information was given to her parents.She has further stated that spot map (Ex.P-2) o.nd (ExP"3) were prepared and she WGS examined ofter giving her consent vlde Ex.P-4. This witness appears to be very firm in making aliegation against the accu.sed/appeilant Laxmi NaraycBi @) Pappu, However, in respect of the Qccused/appe!jant Punni Bai@ Bangahin, .she has further stated tho.t number of ollegations which -she is moking against her in the court, were deposed by her befors the pollce authorities while gjying her cose diory stotement but if the SGme is not recorded/ she couid not tel! the reason. In parQgraph 17 of her cross- examination, she hos sto.ted thot there wos some eariier ciispute with accused/appeliant Punni Bai @ Bangahin and o.s the report wos iodged against her that is why she has lodaed the report against Punni Bai @ Bcngahin. She h.as further -stated. tha+ had the accused/appeiiant t ., Punni Bai not lodged the report ago.in.st her, she too would not have reported the matter agdnst her. She has further stated that on account of previous enmity, she has fdseiy implicated the accused/appeijant Punnl Bai @ Bangahln. Smt. Loxmi Bd (PW-2) - mother of the prosecutrix has stated in her evidenc®that on the date of incident, oppeliant Punni Bai @ Bangahin had cailed the prosecutrix and when she did not return within hdf.an hour, she enquired about her in different piaces and on the second day when her husbond had gone to lodge the report at PQlJce Station, Malkhorodo., he WQ-S jnformed that the prosecutrix has been detained by the ^R.P., Police and then she was brought back by her husbond a.nd other re!atiye.s and after reaching hom.e, ""'^: the prosecutrix jnformed her about the entire incident. In paragrGph 5 of her examinatjon-in-chief, she has stated thot at the time of incident, the age of the prosecutrix was 12 years. In her cross- examination, this witness is very firm and importantly no question whatsoes/er hos been put to her regording the age of the prosecutrix. Bundram (PW-3) - father of the prosecutrix has stated in his evidence that the oge of the prosecutrix was about 13 years. He has v' further described o.s to in what mo.nner h'e found his missing daughter who was detained by the <$.R.P. Poiice Station, Rajpur. Radhe Lai yodav (PW-4) is the. patwari who had prepared the spot map Ex.P-3. <5hurwa Ram (PVI/-5) ho;s stated In hi.s evidsnce thot on th.e date of incident when he. had aone to RoJgorh, in the RdiwQy Station he found the accused/appejjant Laxmi Narayan and ths prosecutrix ond, thereafter, the prosecutrlx was brought back to her house. Ku. Radhika (PW-6) - cousin sister of the prosecutrix has not stated onything against the Gccused/appeliants and she was declared hostiie. Chandrashekhor (PW-7) - Village Kotwar has stated in his evidence that from hlm Kotwari register was seized vide Ex.P-7 and o.s per the Kotwori regjste.r, date of birth of the prosecutrix is 7.9.1994 and Article A-l is the birth certificate of the prosecutrix whereos Articie A-1C is the- photo copy of the same.. From articie A- 1-C it is ciear that dote of birth of the prosecutrix is 7.9.1994. In cross-examination vorious questjon-s were put to this witness but nothing important couid be ejjcited by th®defence from this witness. AmorlQJ (PW-8) ~ on.e of the viIiQgers has stated in his evidence that he cam.e to know Qbout the mJssing of prosecutrix and the accused/appe! la.nt on th.e second day. According to him, the prosecutrix and the ac.cused/appe!lant Lo.xmi Narayan @ Poppu were detained by the O.R.P, poiice and, thereafter, panchayat meeting was cajjed gnd jt was agreed by the po.rtie,^ not to lodge the report T' 7 r against anyone. Smt. Peeii Bai (PW-9) is a witness to the seizure made under Ex. P-7 arsd also a witness to Supurdiginama vide Ex. P-8 but she hos not supported the prosecution case and has been declared hostiie, however, this witness has admitted her signature on the reievant documents. Dr. R.P. Kurre (PW-10) who had medico.}!y examined the accused/appeilant Laxmi NorayQn @ Pappu ond given his report Ex. P-9 has stated tho.t he was co.Dab!e of performing sexua! intercourse. Saukhila! (PW-11) - brother-in-law of the prosecutrix has stated in his evidence thot on the date of incident his father-in-iaw Bundram had come to his house in search of the prosecutrix and on the next day ^.R.P. Police had informed th.em that the prosecutrix and the accused/appe!!ant Lcxmi Narayan @ Pappu are with them. Sub Inspector M.R. Ratre (PW-12) is the Investigating Officer who has supported the case of the prosecution. Budhno.th Sai (PW-13) - Constable in the ^.R,P. has srated that on 25.8.2006, the information WQ.S sent to the reiatives of the prosecutrix and the entries were made in the Rojnamcha Sanha vjde Exs, P-18 o.nd P-19. Hemantial Sahu ^ (PW-14)- is the Hecd Constabje who has done part of investigation. Dr. S.P. DGharia (PVV'-15) ho,s proved the medica! report of the prosecutrix vide Ex.P-20 wherejn he has stated thQt prosecutrix was medicoiiy examined by Dr. Rer'uka Singh who iater on had left the government job. He has categoricaiiy stated that he knew the signature of Dr. Renuka Singh. According to him, no injury whatsoever was found on the person of the prosecutrjx and her hymen was found intoct. He has stated thot in the medical report (Ex.P-20) of the prosecutrix, there is no mention about the fact that the prosecutrix wos subjected to ro.pe. 11. Minute examination of the evidence of the witnesses in particular that of the prosecutrix mokes it ciear that on 25.8.2006 she was taken by the accused/appeliant Laxmi Narayctn @ Pappu at Raigarh ond, thereafter, she was subjected to rope by him. Though there Gppears to be some contro.dictions in the statement of the prosecutrix but considering the fact that at the time of commlssion of offence, she was m'nor, aged about 12 years, she was un-educated ,,G!S admitted by her, is o. rustic yillager, these minor contrGdictions are of no sjgnificance. 12. I find no force in the argument of Shri Pondey, counsej for the Gppeiloint - Laxml Narayan @ Pappu that as in the medical report of the prosecutrix her hymen has been found IntQct, it cannot be said the she was subjected to rape by this Qppejlont. It is weil settled that in many cases where the victim is minor, tear of hymen is not found because the same is being deep seated. So faras age of the prosecutrix is concerned, the mother and father of th.e prosecutrix has categorically deposed that she WGS t2- > 13 years of age ond this stotement has been duiy supported by the vi'lage kotwar ChandrashekGr (PW-7) and as per the kotwari register i.e. Articie A-1C her date of birth is 7.9.1994. Thus, it can be sofeiy held that on the date of incident sh.e WGS beiow 12 yeor-s of age. Considerin9 ol! the materjai available on record, I find no i!!ega!ity in the order Impugned in respect of the accused/appeiiQnt Laxmi Narayan @ Pappu an.d, therefore, his conyiction under Sections 363, 366 A and 376 (1) is mdntained. 13. So far as the appeiiant Punni Bai @ Bangah.in is concerned, in paragraph 17 of her cross-examinQtion, the prosecutrix herseif has stated that there was some earlier dispute with accused/appellant ^ < Punni Bd @ Bangahin and as some report was lodged by the said Punni Bai @ Bangahjn against her that is why she dso jodged the report against Punni Bai @ Bangah.in. According to her, had th.e accuscd/o.ppeliant Punni Bai @ Bangahin not jodged the report agdnst her, she too woujd. not haye reported the matter oigoJnst her. Thus the entire ailegation leveiied by the prosecutrix agoinst Punni Bai @ Bangahin becomes doubtfui and does not inspire confidence of this court and in these circumstGnces it wij! not be sofe for this Court to conyjct the accused/appeliant Punni Bai @ Bangohin under Section 366 A of the Indion Penal Code. 14. In the result, the criminai appeal in respect of appeijant Punni Bai @ Bangahin succeeds and is ajlowed. The impugned jydgment of the Court beiow convicting and sentencing this o.ppeiiant under Section 366 A of the Indian Penal Code \s set aside. The accused/ appeilant Punni Bd @ Bongohin is acquitted of the charge ievelied agojnst her. Appeilant is reported to be on bo.il. Her bai! bond stands discharged. 15. Accordingly, Criminaj Appeal No. 936/2007 is aiiowed whereos the Crimind Appeal No. 952/2007 is dismissed. | Pritinker Diwaker I Judge