i^^-~ 1)2 •II.i: !! ! i f, iasantpom alias Laxmanram, aged 22 yean, Caste Bansod, Oceupation- Labour", Vi!!age Puta, P.S. Udaipur, District Sar9uja, presently at Luchri, Ambikapur- (C.&i) 'isgarn, Throu< ageecha, District Joshpur (C.&.) ;r ^§?&. Mr.^K.K. Singh.counsel for the appellant. ir' This appeai is directed against the judgment of and orde" of sentence dated 17'' September, 2002 passed Sessions Triai No.111/2002 by The' 2"d Additional Sessions (Fost Track Court) Jgshpurnagnp, whereby, the said Gourt holding the cppeliant guilty of offence punishoble under Si !76 of the Indian Penal Code, sentenced him to undergo R.T. fine of Rs.500/-, in default of payment of IS. in se, er er uriderao 5.1, fop The allegations are thaton 21.1.2002 fhisoppeiiant to Viilage Sardih., which is his ui-lows piace, and at about when the prosecutrixnamelyfc'luhniSai (PW-4), had gone dut house fo answer the cail of:nature,the appeHflht cdught of Cr.A.No.ll64of20i and dragged hsr to an open field ct a distcnce of about 100 meters \ and there, after undressing her, committed forceful sexua! intercourse against her, When the prosecutrix was left, she onyhow grandmother and other famiiy members. On the fateful day, Rungl Bal (PW-5) A Thucva (PW-6), rnother iS father of the prosecu'trix le for earniTO their livelil in different vilbge, On the n^xt day when fother <& mother of prosecutrix returned to the village, story was norrcted to fhem and ultimately on 23.1.2002 at about 1800 hrs, First Report (Ex.P-7) was iodged by the prosecutrix in the concerned poiice station. • • ' •- &urin9 the course qf investigation,the prosecutrixwas sent for medica! examlnation to Community Health Centre, Bageecha, where she wss examineci by Dr, (Smt,) Vinodini Bakhla (PW-11), w/ho prepared her report Ex.P-19. She was also sent for ossificatiQn test ond the Radiologist, G '' after taking X-ray of her joint bones, submitted the report dated 13.4.2002. according to which, she was found in between 14-17 years. For the-purpose of age, mark sheet ot Prathmik Pr'aman-Patra PaHksha, 1999 (f.xf-i'l) was also seizsd bythe prosecution, accopding to which she would be aged obout 14 years 10 months,'.& 14-.doys on the date of Incident. After usua! investi9ation, charge shest was filed against the appelio.nt. The conviction of the oppellant is based upon the testimony of the prosecu+rix (PW-4),which wns held tobe supported by the mediccl evidence of &r. (Srnt.) Vinodini Bakhla (PW-11). Learned eQunsel for the appellant argues that ths prQsecution has fai!ed to provethat on the dateof incident a9e:df secutrix was beioiv 16 year's, He__atso argues i- that; the <:'F;^ 3i!.^'@^g.@^S^'S3^;'SIi; w : FIIO. ance and therefore. the :ly, he the said also argues that sentence awarded to the appe!lant is too harsh in the facts and circumstances and even if the appellant is held guilty of the offence punishable'under Section 376 ofthe I.P.C., then his sentence shouid bej'educed to minimum, preferably,the sentence as on date i.e. 5 years & HS!, theother hand, iearned State counsel, opposing these arguments, supported the judgment of conviction and order of ssntence passed by the trial court. ^ I have heard learned counsei for the parties and also perused So far as the age of prosecutrix is ler of prosecutrix), has cieposes'nothing about her sage in his •chief. However, he has stated on!y one line in His ion that age of her daughter may be 14 years. (mother of prosecutrix) has )e ofthe prosecutrix The other evidence pertaining to irosecutrix is the school •certificate (Ex.P-12), which hos cross-exom iungi Bai ^ about the o age of the So fsr as the ossification test report is concerned, it hns been ment'oned in the said report that fhe prosecutrix was in bets/een 14-17 yeors. Apcording ,to the medical jurispri.idence, iadiologist's report containing particular age of a person is not a concJusive proof, as in Mbdl's JurisprudenGe (20 Edition), it is stated that too much reliance should rrot be placed on the table showing the age and years of thenppearance and fusion of sbme of the'.epiphysis as observed -hy differerit aythors gs it hiersiyi BJ fSSBBiSi'S'fSSS'f'' Ri ^-^" Cr. A.NO. 1164 of 2002 l!t:i indicates the ave.ro.ge ond is likety to vary in individual case even of the same province owing to itie eccentricities of developmerit. It is further stated that recent work has shown that the r-ange of error may be up to three years on either side. Therefore, in the light of aboveevidenceit is apparent that the prosecution souid not prove in this case that the prosecutrix was below 16 years of age qp the date of incident and finding of the trial court recorded vide Parggraph 24 of tiie judgment that she was aged 14 years does not appear to be correct. So far &s the commission of crime is concerned, the prosecutrix (PW-4) deposes that at about 8.00 p.m. on 1+ie fateful day, when she came out from her house to answer the cali of nature, tiie appellant, who had come to his in-iaws' house in the village, came over there, caught holdof her, dragged her to a distant pface where, He undressed her and after tiirowing her on the ground, committed forceful sexuai intercourse against her. &ue to the said act committed by the cppellant, blood started oozin9 out of her private part. She onyhow returned back to her house oaid ultimately fel! down unconscibus in thecourtyard of the house. When she regained consciousness, she narrated the story to her maternai grandmother, moiternal 9randfather and also to other viilagers. On that day, her father & mother were not in| the house and when they returned back in the next duy morning, she narrated 1+ie story to them. It is thereafter, they went to the police station gnd lodged the report Ex.P-7, which bears her signature at 'A to A' part. ' ' The soid evidence of the victim is supported by theevidence of PW-5 Rungi Bai (mo-riier of'prosecutrix), who deposea -t+sot when she returned back to her house in the next day morning, the story \,^ Cr. A. No. 1164 of 2002 was disclosed to her by her daughter Munni cnd Tibna, Himna, Bhurju, Bhagwat & Rijho Bai (all viitagers) and thereafter, they had gone to the police station. PW-6'TTiurva (father of prosecutrix) has also stated that when he returned in 1+ie next day morning;her daughter Munni (PW-4) narrated him that the appeliant h<»d dragged her to somfcdistance from her house dnd there committed forceful sexual iritercourse a^ainst her. He has also added the names pf various villagers as Bhyrju, Dhalgu, Jattu. He has also suppor-ted the fact that 1+ie prosecutrix was taken to the poiice where she lodged the report. TTie defence has not been able to <xssait the above evidence of 1+ie prosecutrix and her papents, as except few minor discrepancies nothing has been brought on the record against the evidence of these persohs, particularly, against the evidence of the prosecutrix. Moreover, -this evidence of •the prosecutrix is supported by the evidence of &r. (Smt.) Vinodini Bakhla (PW-11). She has proved her report Ex.P-19. She has noticed that the vulva of prosecutrix was congested and stainedwith biood, vagind was hardly admitting one finger, blood was oozing from tower portion of vagina, hymen membrane was recently ruptured on lower side cnd blood used to come on touch. In the iight of above evidence of tiie prosecutrix. .hsr parents and further in the light of evidence of iady doctor (PVi/-ll), who found recent injuries on the private part of the prosecutrix, it is established that, in fact, the prosecutrix was subjected to forceful sexual intercourse cnd finding recorded by The triai court in this regard appears to be correct dnd cppellant has rightly been held guilty of the'offence punishabie under Section 376 of ;theIPC. IB 'w Gr. A.No. 1164 of2002 B vbshwn I- So far as 1+ie quantum of ssntence is concerned, admittedly, it must be based upon the "Doctrineof just desert". The doctrine is the foundation of a criminal sentence which is uitimately awarded for n punishment to the wrong doer. What one really deserves should be the punishment for haying committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "Just,fleserf which is governed by 1+ie same principie w'nich says that •rtiei^ cannot be a punishment without guilt and the basic element behind •fhe prjncipie is the proportion between cr'me and punishment. The lesser is the grayity of the crime, 1+>e smaiier would be •ttie punishment and the greater is the gravity of the crime, the higher would be the punishment, subject to the ancillary factors for determining the proportion of the same, though all further subject to the statutory obiigations specificaily provided by !aw in force.' In the present case, the prosecutrix is not proved to be below 16 years of age cnd the oppellant is also aged about 22 years and therefor'e, looking to ths factsand circumstances of this case. ends of justice would be served if the oppelloBit is awarded punishment of 7 years and fine of Rs.500/-, in placeof R.I. for 10 years and fine,as has been aworded by the Sessions Court. Accordingly;, the appeal is partiy allowed. The conviction of the appeliant under Section 376 of the I.P.C. is confirmed. However, the sentence impbsed upon the appeilant is redueed from lOyears to 7yea.rs under Section 376 of the I.P.C. TTie fineamount of Rs.500/- shall be paid by the appelltint, failing which he has to fur-Hier una'ergo 5.1. for 5 months. The cppeal is allowed to the extent indicated above. ••: , i Sd/- . SunilKumarSiuha Judge ^SSK "Msgl-S1 ^lf::