^ OF AT CRL_A_.MOI..^. /"7&^ /2002. [S...B.3. AppealaH?:- (?n jai?) -/A VERSUS DoctorNishad s/o Pusatiaged-38 vrs R/o iiear Danganiys Taiik, Kumhart ^ ^ P,S.,Bhi!a!Distt-Dyrg. )^/^^ ^ ^f ^AT ^ Kespoiidant;- StateofC.G.. »' ^>' iV'u/ ^ "•• <\' \ .•' <^.^ / ^ /' I - tf'. --""< * * if. f ^- HI6H COUKT OF CMHATnS6AftH AT BILASPUft Single Bench: Hon'ble Shri bILIP RAOSAHEB DESHMUtCH. J. '\^ Criminal AoDaal Number-708/2002 Doctor Ni^iad Vs. State of Chhattisgarh PRESENT: - Shri Abhoy Tiwari, learned counsel for the appcltant. Shri Ashish Shukla, 6ovt. Advocate for the State. JUbfiMENT (Delivered on^ -06-2006) This oppeal is directed against 1h®judgment dated 15-06-2002 ctelivered by Shri A.S.Chandel, VIth Additional Sessions Judge, Durg in Sessions Trial Number-34/2002 whareby the dppetlant was Gonvict^ed undo* Section-376 of IPC and was sentenced to undergo rigorous imprisonment for ten years and to a fine of fts. 500/- and in default of payment of fine to undergo additional rigorous imprisonment for six months. 2. The appellant had in his examination under Section 313 of Cr.P.C admitted that the prosecutrix aged six years visited his house m 1+ie afternoon on 21-11-2001. It is not disputed that bhoneshwari Bai daughter in-law of the cppellant had taken -riie proseoutrix to her house. buring the course of arguments, it wos also not diqxited -riiot prosecutrbc had sustained injury and bleeding on her private parts on 21-11-2001. 3. Briefly stated the prosecution story is that on 21-11-2001 the prosecutrix, oged six years went to ptoy at the house of the appeltant. The appellflmt mo.de her lie on the bed ond after removing her underwear committed rape on her. Severe bleeding started from the vagma of the ^ prosecutrix. Dhaneshwarj Bai, daughter-in-taw of the appellant took the prosecutrix to her mother Joyanti Bai PW-1. The proseaitrix informed her mother about the commission of rape by the appelbnt. Dr. &jshil Kumar Soni PW-13 give first aid to the prosecutrix and found that severe bleeding had occurred frorn the vaginal orifice of the prosecutrix. Hymen was tom. ' The prosecutrix told him that the appelkmt had sexually assaulted her. 4. F.I.K. vide Ex. P-1 was lodged by mother of the prosecutrix Jayanti TBai PW-1 at police outpost Kumhari at 7.20 P.M. on the same doy. On medicat examination of the prosecutrix at 11.30 P.M. Dr. Madhu Shrivastava PW-10 found that the prosecutrix was bleeding from her vogma. Smce the prosecutrix was not allowing local examination it wos done under general anesthesia. It was found that there was a vaginal tear of second degree. i^ Cm. in size at 5 10' clock position extending to 1 Cm. of perineum with fredi bleeding. Wound was repaired. It was opined that sexual intera>urse might have been done with the prosecutrix within 12 hours. The oppellant wxs also examineid on 22-11-2001 at 12.30 P.M. by Dr. Shrinivas Choubey PW-11 who found the appeilant capable of performing sexual mtercourse. Smegma was absent from penis. It was opined that sexual intercourse could have been performed within 48 hours of the examination. After completion of investigation, the appellant was prosecuted under Section 376 of IPC. 5. The appellant abjured the guilt and pleaded innocence. In defence, it was pfeaded that the prosecutrix had sustained injury by hammer. Shonkar DW-1 was examined in defence who deposed that the prosecutrix hod told that she had sustained the injury at the house of the appeltant due to fall. The prosecution examined as many as 14 witnesses. Reh/ing upon the evidence led by the prosecution, the teamed trial Judge convicted and sentenced the appellant as aforesaid in para-1. 6. Shri Abhay Tiwari, learned counsel for the appeltant has <xssailed the conviction of the appellant on the ground that the possibility that the prosecutrix had sustained the vaginal injury due to fall on hammer could not be ruled out in view of her admission in pou'a-2 that the appeltant had asked her to bring chisel and hammer. It was also contended that the very fact- that Dhaneshwari Bai daughter-in-law of the appellant was present m the house of the appellouit and had taken the prosecutrbc to her house when vaginal bleeding had occurred and the fact Ihat the Dr. Sushil Kumar Soni PW-13 was called by the appellant to give first aid to -the prosecutrix, substantiated the defence of the appellant. It was also argued that independent witnesses Pushpa PW-2, Chanda Bai PW-3 did not supporl- tte prosecution stor/. Lastly, it was contended that Dr Madhu Shrwastcxva PW-10 had admitted in cross examination para-4 that the vaginal injury sustaihed by the prosecutrix could b& caused by a hard and blunt object. R&liance was placed on Rahim Beo Vs. State of U.P. rqsorhed in A.I.R. 1973 S.C. 343 while contending that absence of injury on male or^an of the accused pointed to his innocence. 7. Shri Ashish Shukla, learned 6ovt. Advocate, on the other hand, argued in the support of the impugned judgment. 8. Having heard rival contentions, I have perused the record. Prosecutrix PW-2 has deposed that in the aftemoon on tte date of occurrence she had gone to the house of the appellant where the appellant had asked her to bring chisel ond hammer. TTiereafter, the appelkint macte her to lie down inside the house and removed her underwear and committed sexual intercourse with her due to which she started bleeding from her private parts. She also stated that she had objected to the sexual as«uh- by the qapellant. The leamed trial Judge has noted the demecnor of Ifie witnesses that while deposing the above facts she started to cry on lookhig at the appellant in Court and felt afr'aid of the appelkmt. In her cross examination the prosecutrix was not asked whether she had ajstained Ihc injury on her private parts due to fall on the hammer. It was neither suggested in cross-examination nor in the defence taken by "rtie appeltant that while the appellont asked the prosecutrix to give him a hammer she fcll down on the hammer, This defence also does not appear to be pbxusibte because as suggested by the defence if the appellant was affixing a saree on the terrace of his house while standing on a stool and asked the prosecutrtx to give a hammer to him, the prosecutrix could not hove in cyiy manr^r sustained the injury on her private parts due to fall on the hammer. It is also pertinent to note that the appellantin reply to the question no.12 Jn his examination underSection-313 of CrJP.C. has clearly stated that he had no knowledge as to how the prosecutrix had sustained the mjury on her private parts. It is also noteworthy that in cross-examination of Dr, Madhu Shrivastava PW-10 it wos not specifically asked by the defence that the injury sustdned by the prosecutrix could have been aiused by a fall on a hammer. 9. I have perused the entire evidence avaibble on record minutBly, There is not even an iota of evidence even in the form of a ajggestion to show that either the mother or the father of the prosecutrix had any ww. to grind against the appellomt or had any reason to falsely implicate him. 'TI'ie testimony of the prosecutrix is fully corroborated by Dr. Madhu Shrivastowa •^^w^^s^^^^ PW-10 who stated that she found that the prosecutrix vms bteedmg from the vagina and was not allowing local examination of her privort'e parts and after administering general anesthesia her private part-s were examined <vid it wcxs found that she had a vaginal tear of second degree, 1 i Cm* in size at 5 'O'clock in position extending to 1 Cm. of perineum with fresh bleeding. It was also opined that sexual intercourse with 1+ie prosecutrix had bewi committ-ed within 12 hours prior to her examination. Dr. Sushil Kumar Soni PW-13 admitt-ed that he was called at the house of the prosecutrix at about 3.30 P.M. on 22.11.2001 and found that there was vaginal tear with bleedmg. On being cross-^xamined by the prosecution, he admitted that the prosecutrix had told him that the vaginal tear was attributable to the appellant. Considering the shame of sexual assault on a minor girl aged 6 years cmd the ignominy following thereafter it cannot be ruled out that the mother of the prosecutrix had told Dr. Sushil Kumar Soni PW-13 thot her doughter had got an injury due to a piece of iron while ptaying because Dr. Sushil Kumar Soni PW-13 has categorically denied the suggestion put forth by the defence that the prosecutrix had told him that die hdal a fall while playing at the house of the appellant and has specifically s»tdthat on his asking the prosecutrix had pointed an accusing finger at the cppelkxnt. 10. The testimony of the prosecutrix is also corroboroted by her mother Jayanti Bai PW-l who stated that when Dhaneshwari Bd brought Ihe prosecutrix to her home she had found that her ctou^iter was bleeding from vagina. On being asked, the prosecutrix had told her that the appeltant had after making her lie on a chadar committed rape on her. Nothing has emerged in cross examination to rebut her tendency or to show that this witness had cmy motive to falsely implicate the appellant. The FJ.R. lodged -E by Jayanti Bai on the same day vide Ex.P-1 also corroborated the testimony of the prosecutrix in toto. 11. Although Chanda Bai PW-3 ond Lata Mishra PW-5 didnot support- ihe prosecution story, yet they categorically stated that on going to the house pf the prosecutrix they found that mother of the prosecutrix wss crying. Dr. Shrinivas Choubey PW-11 who had exmained the appeltant on 22.11.2001 at about 12.30 P.M. also did not find any smegma on the penis of the '^. (appellant and opined that sexual intercourse could have been coinmitt'ed by the appellant within 48 hours. So f<xr as the case of Rahim B«o Vs. Stata o^t/^reported in A.I.R. 1973 S.C. 343 relied on by -Hie leamed counsel for the appellant is concemed, the facts and drcumstances of the case are clearly distinguishable and do not cpply to the present case at all. 12. In Madan lal Vs. State of J & K reported in A.I.R. 1998 SC 386 it was held by the Apex Court that statement of mo1+ier of the prosecutrix that the prosecutrix narrated the entire episode immeclkxtely wten die arrived^ home can also be held to be a corroborotive piece of evidence. In the present case there was no anjmus between the prosecutrb< and the appellant. The discrepancies in the testimony of the prosecutrbc are minor discrepancies and merely by picking up a sentence in cross exammation it cannot be ruled that the prosecutrix is not a truthful witness. 13, If the prosecutrix had sustained the injury due to a fall on hammer and Dhanvantari the daughter-in-bw of the appellant was present inside 1fie house. she was the best witness for the defence. Had the defence ptea been true, the appellauit would have examinad her as a defence witness because Dhanvantari was the person who took the prosecutrix to her house after the incident. It cannot be ruled out that out of sheer disgust for the lustful sexual assault by her father-in-law on a minor girl aged 6 years, she did not enter the witness box as a defence witness. 14. Having thus given my anxious consideration to 1+ie evidence led by -riie prosecution in its entiret/ and after having scrutinized the evidence of the prosecutrix, I am of the considered opinion that white the testimony of the prosecutrix is truthful, the defence taken by the qapeltant does not seem to be plausible. The testimony of the prosecutrix is not only natural and worthy of credence but is also corroborated by the testimony of the molher Jayanti Bai PW-1, F.LR. Ex.P-1 and the medical evidence of Dr. MadBiu Shrivastava PW-10 and Dr. Sushil Kumar Soni PW-13. In this vtew of the matter, conviction of the appelloyit under Section-376 of the JPC and Itie sentence awarded thereunder by the tearned trial Judge is wetl foundted and does not call for ony interference. 15. In the result, this oppeal being devoid of merit fails ond is dismisscd. Sd/- Dilip Raosaheb Deshmukh Judge