sn^i'^1 sn^v 'Hftn 75T -lll.illc)^, ri'dl'y'l'i. fqcll^y tffqcfT shllcb 200 -1. 311^1 ^SITWHf??! CRIMINAL APPffAL N0.653 OF 2004 APPELLANT (In Jail) RESPONbENT Neta Ran\, Son of Chowalal, aged about 35 years, rejsident of Patseoni, P.S.-Chhura, [)istt,f:Rai|]>ur (Chhattisgarh) Vs The Stat^ Present; Mrs. Fouzia Mirza, Adv. with Mr.l Mr. N.K. Mehta, Panel Lawyer foif O RA L Jl (28th Sep^ Per bhirendra Mishra, J; This criminal appeal is conviction and or-der 6f sentenc^ Jearned Sessions Judge, Raipur^ Sessions Judge has convicted th|e IPC and sentenced him to underdo Rs.500/-, in default of payment ((1 Case of the prosecution, ii 11.00 a.m. the prosecutrix, who| some disability in herleg, was pr|e; the accused, who resides in^fro|nt (•ember, 2007) °bi''ii<-t'jii'i ii4<-ff'?'fs'st <rqt^i< ^7 3lf;gH snt^T of Chhattisgarh R.K. Pali, Adv. for the appellant. the respondent-State. U t> 6M ENT directed against the judgment of dated 30th July, 2004 passed by the in S.T. No.10/04 whereby learned b appellant under Section 376 of the R.I. for 7 years and to pay a fine of if fine additional S.I. for 6 months. brief, is that on 15.11.2003 at about is less than 16 years of age having ^sent alone in her home, at that time of her house, came to her house r^ + sni^iqff ss^v 'gf^t | '^^^~ ^•d^ls^:!'^! ^ei '^fPV^f. y^'y'l'i. ^cii'ay tTT^T '(RT5R *11*1CTI ShHI'b "W^ 200 v' fq^tT' - 2- 31^1'S^TW^fe enquiring about her mgther and| house and raped her after shuttj prosecutrix not to disclose this| the place of incident. On,i?etur^ =bl<4^'3fr;f J-IH<'Tf'^ ^^ <Psi+ri.i< ^srfigqsn^r thereafter took her to a dilapidated ng her mouth. He also threatened the fact to others and thereafter, left of her mother about 5.00 p.m., the prosecutrix narrated the incider|t to her, whereupon,a panchayat was convened in the village. However) the panchayat, as he was not avai|l report of Ex.P-17 was lodged tjiy the prosecutrix on 16.11.2003 at about 11.30 a.m. The prosecutr| where Dr. Uma Paikra (PW-6) ex<|imined her and gave her report dated 16.11.2003 of Ex.P-12. Vaginal s| into possession vide Ex.P-3. Cop| the Primary School Kansindhi pe| seized vide seizure memo of Ex| seized vide seizure memo of EA examination where br. R.S. Paikr report of Ex.P-4. Blood stained prosecutrix vide Ex.P-15. The 4 sameej etc were sent for chem Laboratory, Raipur and the repor , the appellant did not participate in lable in the house and accordingly the x was sent for medical examination lides of the prosecutrix were taken 'I of admission register (Ex.P-lA) of 'taining to the prosecutrix was also .P-5. Underwear of the accused was t.P-6. Accused was sent for medical a (PW-5) examined him and gave his ^iameej of the prosecutrix was taken into possession vide Ex.P-14. p bcjngles were seized from the house of feized articles i.e. slide, underwear, lcal examination to Forensic Science tof the FSL is Ex.C-1. •^ '• ^\ + ailt^lqil R? sn?y 'Qf^! .^..Bt'-iieStS rSiBER'iW'-55 ^sr^pn^q, •g^ffTS. f'K-iwy fc WTCII rtlllcb 200 - 3- 31lt?[ ^RIIWHfOT par|ties After completing investig{ the court of Judicial Magistrate| the prosecution examined 10 witr|( 'i of accused was recorded itlnderl appellant took a defence that h4 due to previous animosity. He als|o in support of his defence. Learn|ei counsel for the respective appellant,as mentioned in Para 1 ((1 Learned counsel for the prosecutrix has been assessed register, however, the best register has not been filed subjected to radiological the age of the prosecutrix the (PW-2), teacher of Primary Scho< are infirmities in his statement al is material improvement in the FIR as also in her diary statemei|it from her house upto the committed, however, in the' evidlence ahd examindtion dilapid^ited •*l'i<I<'l41-i lIFRTf'? fS^t <r'slt£l< ^;3rf;<m3TI^F iting the charge'sheet was filed in 1 Class, Sariyabandh. During trial, fesses and thereafter, the statement Section 313 of Cr.P.C. wherein the has been implicated in a false case als|o examined three defence witnesses i|ed trial court after hearing learned ;, convicted and sentenced the |f this judgment. |appellant argued that age of the on the basis of school admission being the entry in the Kotwar even the prosecutrix was not i. For the purpose of inferring ^tatement of Nirbhay Singh Thakur I, has been relied upon though there l^o. It was further argued that there (tatement of prosecutrix, as in the she alleged that she was dragged house where the offence was stattement before the court she has an^T'qii R-ii* IVK^ ^tfe^if?g fe.'ala^^ vs-'^'^^^'-'''''"'""'"' ^:^.^'" ^53 "ill'Mlirl^. yTfl'y'td. fawi'ay 3T(t?T 'VSSR WI*<MI 9>W* "HT, 200 fq^ST' -^- sn^r'g^aiwgft^ stated that she was ^odily lif| thereafter rape was committed has been deliberately made jus[l 4 over her person because.-'had sustained abrasions and other i\\ per the report of Dr. Uma Paikrc) was foundover the person of tl^< mark of struggle over the persof) circumstances the possibility party can be inferred. Reliance i|s Kooveli Poulo Versus State of On the other hand, learne<ll the impugned judgment. I have heard learned the impugned judgment as also available on record. To establish the age of| admission register has beenaddijc been proved by Nirbhay Singh the admission register of school, prosecutrix figures at Sr. 1312 +i'4f<-i'iil-i ^wvS ^is^ <i«i<di< ^? Slfigq 31I^( 1-ed upto the dilapidated house and |at about 11.00 a.m. This improvement to explain the absence of injuries |she been draggedshe would have i|ijures. She further submits that as (PW-6) no external or internal injury )e prosecutrix and even there was no of the accused, therefore, in these of ]the prosecutrix being the consenting i|s placed in the matter of Joseph S/o K|erala reported in [2000] 5 SCC 197. counsel for the State has supported cour(sel for the parties. I have perused the oral and documentary evidence the prosecutrix a copy of school lced in the evidence and the same has T|iakur (PW-2), who has stated that in copy of whichis Ex.P-1, name of the Iwherein her date of birth has been r^!'.: ••: + aiif^i^l ans^i ^lftt -^si ^ii<iid<i|, ^•d'ly'iiS. fawi'My WII?(Tsb*{ic(i 'WI, 200 -$- sn^i^giw ^Tlt?r mentioned as 25.1.1988. In th stated that he himself has re[corded the above entry as per the information given by Moharsing^ •f-h fact that Moharsingh subntitte| register, which was also' bro| examination, and the details of ct:H^4lT11 'RR^? ^ 'feTSt -<f^^.!< ^aTpman^T s cross-examination this witness has on the basis of his affidavit and the d an affidavit is entered in another Light by him on the date of his entry in the school register has also been adduced as Ex. P-16. Thu^, from the evidence of this witness, which stands un-rebutted by ^he defence, the date of birth of prosecutrix i.e. 25.1.1988, reco^ded in the public document on the basis of information given by Mo|harsingh at the time of her admission is established and accordingly, if- is also established that at the time of incident, age of the prosecutr|ix was admittedly below 16 years. The prosecutrix has depcjsed that the incident is of ll°clock, when she was alone in her housej as her mother had gone to work. The accused came and asked about her mother and thereafter he made some comments and also called hjer Beti (daughter). When he started grabbing her hand, she resist^d, however, he dragged her to the dilapidqted house. Healso gagg^d her mouth, pressed her neck, torn her clothes and raped her by mo Linting over her. Blood started oozing from her private part as a resul^ of which her underwear and sameej were stained with blood and The 'eafter the accused fled from there. s^ + 3Il^T^iI 'f^wsTi^r *tii+ •Hltg -TSI TqpIRTq, •S^mS. fcl'My S^f •^TSR wti?(r^(n<* 20fl "'fsr^sT' an^r TOITW:'(fe On return of her mothgr at aboi|t 5.00 p.m. she narrated the incident to her whereupon a panchayat i^as convened in the village, however, the appellant was not present i Village Chhura. Thereaf,ter, improvements regarding weeping| neck etc. have been pointed however, the same does not g(| fallen on the frame of the door d injury over her private part. Manwabai (PW-8) mother that when she returned from =hi'4l<n'4lTi ^w<Tff ^ feTst' <PJ|^.K ^3rf:?iH3n^i h the panchayat, as he had gone to fhe report was lodged. Certain at the time of incident, pressing of out during the cross-examination, to the root of the matter. The prosecutrix has denied the sug^estion that she was mimicking the appellant and therefore, he caug|it her hand and because of that she nd because of that fall she sustained of the prosecutrix, has also stated the work, the prosecutrix started weeping and she narrated that f'he appellant has robed her honour. Her bangles were broken. She h4s corroborated the statement of the prosecutrix in material particula between theappellant and her. ^ hs and she has also stated this fact that blood was oozing from her ^rivate part, which she has personally seen. She has denied the sug^estion that there was any quarrel theleg of theprosecutrix is frot he has also stated thatdeformity of the time whenshe was one year old. r-crNt + an^i'qii WR^I 'dfgiT W'i '^{it^fe. a'3iE ~s^i ^wvi^. ^<TI'yli<i. ftc'i'yy ^' W(RTI Sti^lch WI, 200 -7. sn^i^aTWHft?f Nohar Singh (PW-7), who| of seizure memo of Ex.P-14 whei] whereby broken bangles of th^ house of the prosecutrix. ,.^ Chaituram (PW-3) is-the village and he has stated that in present and Manwabai had co| Netram committed rape with he^ present in the said meeting. S| Sahu (PW-1). t)r. Uma Paikra (PW-6), stated on examination she did over the person of the prosecut she found that hymen of the colour, swelling was present, on t' admitted only one finger and the the basis of her examination, committed with the prosecutrix. So far as the argument that the prosecutrix was attained the age of discreti6n is is the Village Kotwar, is the witness 1'eby clothing were seized and Ex.P-15 prosecutrix were seized from the i^itness of panchayat convened in the |the said meeting the prosecutrix was jnplained in the said meeting that daughter. However, Netram was not Imilar is the statement of Bhanuram wHio ndt 4)l^lfl4!r1 ^il^df ^ fer^lr <M-^.K ^;3ri;tn3ii^[ has examined the prosecutrix, has find any external or internal injury •ix, however, on internal examination pri|)Secutrix was ruptured, it was red in {>uching vagina, it was bleeding, vagina prosecutrix was complaining pain. On |she has opined that the rape was \f learned counsel for the appellant bordejring 16 years and. assuch, she has concerned, after considering overall + SO^T^iI R<-ii.+ sn^r grciwHiig ^^.^,.,.,.. • .-^^; .ui,s*ei!§8 ^]- 1 -^5£[>A||t||dt|, dTil'y'lli. r'KII'My STI^T 'VS^K Wdcfrg^flrai 'WI, 200 fN^CT' A 31)^1 ?^ITW8ft?I evidence available on cscord ar|d the medical evidence, there is no evidence available on record to consenting party. So far as the of the prosecutrix is conceipned, that she was below 16 years of was a handicapped girland that her to the ptace of incident, the chi^id4t?i 'pn^ff ^ ti^ <rji^$i< ^; 3rf;aH ani^T suggest that the prosecutrix was a absence of the injury over the person |looking to the age of the prosecutrix |ige and further considering that she accuSed dragged her or bodily lifted |ibsence of injury alone cannot lead to an inference that the prosecutri^ was the consenting party. In the matter of Josep|i Vs. State of Kerala (supra) the deceased was aged 26 years, cfiarge under Section 376 was mainly based on the theory of last see^i together and the fact that vaginal smeer confirmed presence of s bmen and spermatozoa and in these circumstances considering the ag|e of the deceased, as it was the case of murder and rape, it was held rape on a grown-up lady of 26 made some strong resistance. However, in the instant that had there been any attempt of years old, she would have definitely case, as already pointed out, the prosecutrix, who is physically har|dicapped girl, has been examined and during trial she has narrated th^ circumstances under which she was dragged and subjected to rape o|nd therefore, there is no reason for disbelieving the version givten by the prosecutrix, which is also + siii^i^ir f?;ii?p3iii?( g?qN?'Iif%^ Roshan/- ^sg niil.qid'y, i»Ti'l<ris. i;tCTi'rill<. 31T^?T T^SR W*<WI sbllcb "H^, 200 A1^^SI" 311^1 ^giWBftcf aft^r supported by the stat^ment of] witnesses that immediately narrated about the commission the prosecutrix is further, also the report of FSL. So far as the defence previous anitnosity between the| and the accused is concerned, al defence witnesses and documenh regarding quarrel between the prosecutrix, it appears that the incident, therefore, the same a( otherwise it does not appeal to honour of her daughter aged 16 ))ears vengeance with the appellant In the result, the appeal be dismissed and it is hereby disi^issed. +wl<-t<i1';i 'VSKS •? fs^fs tfSRzn ^aiNiian^r her mother and other independent the incidentin the panchayat she (>f rape by the appellant. Version of cbrrijiborated from the medical report as tal^en by the appellant that there was a family members of the prosecutrix •ter going through the statementof l's filed by the defence during trial 4ppellant and the family members of ^ame pertains to the period after the i(-e of no help to the appellant. Even i^eason that why a mother will involve )|ears for the purpose of wrecking her h|as no substance, the same is liable to Sd/- DHDtENDRA MISHRA Judge