HIGH^QURTOFCHHATriBGARH.BILASPUR Criaiinal No.814/2003 APPBLLANT Kartik Raui Sounra, aged about 41 years s/o BliurAeslrwai' SoLinra, Occupation-Mazdoori, R/o viUage- Seiualiya, Thaaa-Basna, Tah.Basna, District-Maliasasiiund(CG) RESPONDENT Versiss State of Chhattisgarh throiigh Distdct Magisti'ate Mahasainund, Disfcrict 3MaIiasasiiund(CG) Appearasxce: Shri Awadh Tripafhi, counsel for fhe appeUaiit, Shri U,N.S.Deo, Additional Piiblic Prosecufor for the State. ORALJUDGMEHT (22.05.2007) SUNIL KUMAR SINHA. J. Heard. This appeal is directed agaiust the judgme-nt of co-avictixju and order of se-atence dated 27.6.2003, passed in S.T. No. 136/2002 by the Pirst. Additional Sessions Judge, MahasaiDUiid (C.G.), whereby, t1-ie said Coiii-t sfter holding the appellaYit guilty of the offence puiiishable iinder Sectioii 376 TPC, sentenced hmi to uudergo RJ. for 7 years and to pay a fine of Rs.500/-, in default ofpayment offiiie to further imdergo R.I, for 6 nioiifhs. The case ofthe prosectition is that on 15.12.2001, at about 10.00 aai, the prosec~at3'ix namety- Ku.Padnianii Sahu (PW-1), a n~dnor girl aged about 13 yeaj's, was watching her Arhar fselds. At tliat tinie, tlie appellant, who was aged aboiit 41 years, caiiie over there ajid ca-aght hold of t1iie proseciitnx. Whe-o she cried for escape, the appeltant gagged her mouth pnd sair1 her tbat he will CrAppesd No.814/2003 give -oioney to her aod thereafter, he conimitteri forceft-il sex-iial intesx'ourse ageinst the proseciitrix. When she was 1eft by the appellasit, she went to her hoiise end immediately disclosed the stoiy to her niother -Henia Kanti(PW-2), who ca11ed her father- Degreelal Sahii (PW-3), who was o-iit in tlie village for some work^ aiid thereafter, a report was lodged by the fat1ner iri Police Station Basna on the sanie day iiuder Ex.P/1. The proseciitrix wss sent for siiedical exaiaination to P,H,C. Basua iinder reqiiisitio'n Ex,P/8-A and was examined by Dr,(Ms.)Jayshri Sahii(PW-6), who prepared her report Ex,P/8. Accorriing to her report^ the secondaxy sexiial cliaracters oftt^e proseciitrix were iiot developed, There were 2 ahrasions on the lower abdonoTDiiial 5'egioii, adiiieasuiing 1 cm x 1 % csii. Oii intenial examinatioii, she found that fjie pubic hairs were not developed and were in growing condition. She had also iioticed oiie abrasioii, admeasTiriT}g 1.5 cni on the left thigh. There wass tendenies^ o^ t^e private part having reddish colour, The vagiua wa^s admittirig one finger with paisis a3id fhe prosecut-nx was complainiiig pain. The liymeii was niptured at 9, 10 & 11 0" cloclc posititon, Per speciilum examuiatiou was difficult. Accordiug to her opi-aion, sexiiel assautt had taken place aiid as per clmical obsei-vation, the prosecutrix was aged about 12 yeaji's. She was advised for x-ray exami'oation for determiaation of age. Thereafter, the p-mseciitrix was seiit fbr radiological examination and accordiug to the report of Rsdiologist (Ex.P/ll) Dr. Alka Pardal (PW-7), her radio1ogica1 age was 13 years. Tlie x-ray plat.es Ex.P/11-A, Ex.P/11-B and Ex.P/1'S-C were also received while takmg radiological exaniination. For the puipose of age, a copy of certificate based iipon Kofrivar Panji Ex.P/5-C was also seized, wliich was proved hy the KotoTar --Siiklal (PVv7-4), The acciised was an'estefl and was examined by Dr.A.K.S.Raje(PW-5), wlio hss prepared his repoi4 Ex.P/6, accorduig to which, the accijised was capabte to perfoiiii sexiial uitercourse. 3 C^Appeal Ho-814/2003 @ ^ After completion ofthe iisiial iTivestigation, charge sheet was fUed iii fhe Coiirt ofJ,M.F.C. Saraipal^ who iri tiim comi^itted t^e case fo tlie Coiirf of Sessioiis, from whei^e, the matter was received on trajiisfer hy the First Ax^ditional Sessions Jiidge, Mahasain-iind, who conducted t1ie trial aiid passed t1ie imp~ugnef! jiidgnient of coiiviction and order ofseiiteiice against tl-ie appellant, Tt is against tliis judgiiient; the appellaiit has prefeiTed this appe.ai. The Sessions Coiirt recorded R fi'oding thRt the prosecutrix was aged about 15 years and was niiiior 013 the date ofiiicident, Tt was also recorded that forcefiil sexTial intercoiirae was committed agaiiist the prosecut-rix and the version of the proseciitrix hi this regard was supported hy her niedical evidence and fi^e evidence of her parents efc, So far as the finding pei'taining to the age ofthe proseciitrix is concenied, father-Degree1a1(PW-3) lias stated that her daughter was iii between 12-13 years oui the date of uicident, Tn the Kotwar Pai^ji (register) also, the date of bii~tb of the proseciitrix has been iiientioiied as 2,11.1988, accordiiig to which, she woiild be aged about 13 years, 1 uionth a'od 14 days ou the date ofincident. In flie Ossification Test, tlie proseciitrix was foTi-nd aged a1')oiit 13 years. The Sessions Court has said that 011 the version of father, which is supported by the entries of Kotwar Panji aud on the basis of Ossification Test report, the age of the prosecutrix appears to he 13 years, ancl as far as the Ossification Test report is concenied, if error of 2 yeai's is added towards positive side, her 'uiaxiiTnini age niay conie to 15 years, Holding all this, the Sessions Coiii-t has recorded the fuidirig that the prosecutrix was below 16 years on the ftate of iucident, Stich fuidiog recorded by the Ressions Coiirt is hased iipon the evidence on record i,e. the evideiice of father anc1 tlie entries of Kotwar Panji as wel1 as tlie evidence of Ossification Test^ wliich have not been assailed by the defence in the coiirt and reliance has rightly been placed on it, tliei'eforie, tJiere is no infiniiity in tiie Cr.Apgeal No.814/2003 ^S) '^ fiiidiiig recorded Ijy tlie Sessions Court that the pro^ecutrix was below 16 years ofage on tilie date ofincident, So far as conimission of rspe is concei^ied^ the prosecutrix, Ku.Padmaiii (PW-1) has deposed that at ^bout 10.00 am on tlie said date, she was all alone iu fhe fields. At that time, the appeUaat canie over there aud caught hold of lier, due to which, she started ciyiiig, on which^ the appeUa-at piit clotbes iii her iiioutli and thereafter, threw her on flie ground aad forcefulty renioved her clothes and coniniitfed sexual intercoiirse against her. She deposed that she cried at that time, hut -oobody caiiiie to rescue her because nobody was nearer to t3ie fields. The'sieafter, she canie to her house wit3i tears and iiarrsted the story to 1-ier niother- Henia Kanti(PW-2). Though the proseciifrdx 1nas been cross-exaiiiiiied by tiie defence counsel oo many poiots, but her evideiice regaiTliDg forceful sexiial interco-drse by fhe appe11a~ot, in the laaaner indicated above, has not been assailed and the outconie is that she was subjecterl to forceftil sexiial intercoiirse by tlle appeUaut on tlie said date. This evidence of the proseciitrix is supported hy the evidence of her mother- Hema Kanti(PW-2), who stated that af ahout 10.30 aai, flie proseciitrix canie to hoiise in weepiiig coDdition aiid stated that tiie appellant, by puttuig clotlies in her moufh, had comsiiitfed sexual iiitercourse agairist lier and he had atso said 1ier 11-)at she will uot disclose this fact to auyhody in the liioiise and be will give inoiiey to her, At that time her 1mishaud was not m the house, as he had gone to work iii the village. She got hiiiEi called and nar-rated the stoiy to hmi aiid ti1tiuiate1y, a reportwas lodged. The father-Degreelal Sahu(PW-3) has stafed that he came to house on the call of his wife, who nerrated that the proseciitrix has stated her fliat the appellant had committed sexiial iDtercourse against her. He has deposed fhat when he went to ask the appeJlaat about it, he said hini that he should do whatever he likes and he doesn;>t have fear either of the police or of the Magistrate. Cr.Appeal Ho.814/2003 @ He has deposed that thereafter, a report under Ex, P-1 was lodged, which bcars his signatiire. This evideuce giveii by the proseGiit3~ix, t^er iiiother aiid fatlier is corroborated by the evidence of Dr.(Ms.)Jaysh2~i Sahu (PW-6)/who has proved her report Ex.P/8, in which, she found tliat the hynien of tiie gui was niptiired at 9, 10 fy, 11 O'clock position. There was tenders-iess aud reddisliness ou 1ier private part ancl there were also abrasions on her 1ower ahdommal region and oii her thighs. She has also given opiriion that the girl was subjected to rape. Though tliere is DO necessity m law that the version of the prasecutrix should l3e coiToborated by other evidence aiid the law peiTaits that if the version iuspires coDfides^ce of tjie Coiul theii tlie co-oviction ean well be based on it, b-at in the present case, the situation is for better as her version appears to 1oe tnie and coiTect, which not ouly inspires the coiifidence of ttie Co-o'rt, b~at is a1so supported by other evidence. on record, In tilie opiiuon of this Court, the co'ovictiou and sentence of tlie appellaiit based on szich version ofthe prosec-iitnx, which iteelf iiispires tlie confldeiice of the Coiij't, caiiDot be said to he bad iii law and the fiiidmg recorded by the Sessioiis Coiirt m fhis regard cauiiot be interfered with. Tlie Sessious Court tias committed no error of law while holding tlie appetlant guilty of the oflFence under Section 376 IPC. The appeal filed by tilie appellant 1ias 'no iTierits a~nd the sajrie deserves to be and is acconiuigly dismissed. i Sd/- [ Sunil Kumar Sinha Judge sunlta