A.£-^. l-tI6HCOURTOFCHHATTES6ARH;BILASRUR'/ SB: HON'BLE SHRI JU5TECE VIJAy KUMAR SHKiVASTAVA CRIMINAL APPEAl. N0.273 of 2000 ApBellant: Neel Kamal Baghe, S/o Sanesh Baghe, Aged 19 years, R/o Bardih P5— Suhela, Dist-ftaipur Vs. Respondent: The State of Chhattisgarh PReSEW: IB' lii*;^ itf t^i III 81 ShriAbhayTiwari.counselfortheappelhnt. ^ Shri VV5 Murthy, Additional Public Prosecutor with Shri Satish 6upta, Deputy Sovernment Advocate for the Stttte. JU 06MENT ( bated 8th November, 2005) This appeal is directed against the judgment of conyiction and order of sentence dated 18/01/2000 passed fay Second Additional Sessions Judge, Batoda Bazar, Dist. Roipur, whereby the appellant has been convicted under Section 376 and 506 of the IPC and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1000/- (Rupeesone thousand), in d&fault of poiyment of fine to further undergo 51 for six months and has atso been senten£edto undergo RI for oneyegr respectively with a direGtion to run both the sentences concurrenll !>l\ ^Stsw^lswSsW^S.^^Vh F'J£..!K'^;.-^::. ;. ••^ i^ 2) Brief foctsof the case are that, on 25.03,1999 at about 10 pm, while the prosecutrix was on her bed, the appellant entered her house,took her into a room and putt-ing her under threat, committed sexual intercourse against her will and without her eonsent. The (ippellant after conimitting rospe on her, fled away. Prosecutrix raised voice. 1-learing her cry, her brother Radhey Shyam cQme there, tf. to whom she norrated the whote story. Prosecutrix accompanied with her brother Radhey Shyam went to Police Station Suheloi and lodged FER. The crimewas investigated by Rajendra Prasad Sharma, •^ S'tation House Officer, Suhela. m ;1 ii ^ Bi 3) Appellant dnd the prosecutrix, both were sent for medical examination. Underwears of appellant and prosecutrix were seized. Admission and Discharge Register from Sovernmerit Primary School,Bardih was aized, according to thatregister.date of birth of Prosecutrix is 03.12.1986. A^edicat Officer, who examined Prosecutrix, also prepared slide from vaginal swab for chemical examination. Their underwears and slide were sent for chemical examination. After examination, the chemicat examiner reported thatthey contain semen and spermatozoa. Witnesses wereexaminfid under 5e,ction 161 of the Cr.P.C, dnd after investigation,Challan vms led in the courtof Judiciat Magistrote FirstClass, BalodaBazar, who commited the case to the courf' df Sessions for tr'ial. • ^ ;iS:.;;;,:. •»•'. ^i^(ra1s®i^^^t^?5:3 Si^ss^s^s^^i. 4) Appellaht was char9ed under Section 376 dnd^506gaiPt liili: II of the IPC., who abjured the 9uilt and his defence wasthcrt'he is innocent and has been falsely implicated. Learned trioil Court, after evaluating the evidence on record held the appellant guilty of offences punishable under Section 376 and 506 of the IPC and Ut r':t therefore, sentencad him as aforesaid. 5) Prosecutrix (PW-5) in her evidence has deposed thatshe wassleeping in her house along w'rth her younger brothers and sisters. At about 10 p.m., the oppellcmt carne into her house, threStened her ^l 'sy, i.?1 and lifted her from her cot,tooH inside the room. He removed her dress and underwear ond .penetrated his penis inside her va9ina and committed rapeon her. Thereafter, o^pellant fled awoiy. She cried, and hearing her cry, Radhey Shyam came to her and she narrated the whple story and apprised him that the appellant committed rape on her, putting her under threat. Hsr Statement has been supported by the evidence of Radhey Shyam (PW/6) and Suraj Bai (PW-12). Both of these witnesses have deposed that they heard the out cry of Prosecutrix,therefore,theywentto her house and she narrated the story fb them. ;il I'BSwi 6) FIR, ExP-6 provedby Prosecutrix PW/5) and Rajendra Prasad Sharma, Station House Officer (RW/13) supports thestopY pf Prosecytrix. Vide Ex P-7, underwear of Prosecutrix atid Ex P-8, ;;;;-^!;?-1tg@^:;??^^^^' ^^•s-^'^S. Bl II underwear of the appelhnt were seized. Both the documerits^have been proved by Kartik Ram yW-7) and Rajendra Prasad Shdrma, SMQ (PW/13). Chemical Examiner, afterexamination of these ar'ticles in his report opined that both of them contained semen| stains ond spermatozoa. Dr Ani'ta Vermai, (PW-1), who examined the prosecutrix, has deposed in her statement that for chemical examination she *j. preparedslideand swab tfpon chemical examination, theexaminer opined that theslide and swab contain semen and sperniatozoa. From the report of chemical examination also, it appears that theappellant had committed sexual intercourse with prosecutrix. 7) From the.aforesaid discussion anct taking into ;fl: H consideration that nothing substantial has been brou9ht to dis-beiieve the version of Prosecutrix, on the other hand, it is foynd .supported » • by all corners. In view of the above, I am of the opinion that learned trial Court has committ'ed no error in holding the oppell<mt guilty of putting the prosecutrix under threat, cominitted intercourse, without her will and consent. 8) " Leorned counsel for the appellont, relying on the judgment rendered by Hon'ble Apex Court 'm Ra.iu Vs We State of Kanvitaka. reported in 1994 CRLJ 248,contended that the appellant is a teenager and frpm the medical evidence, no brutality appears to be done by him, ttietefore. he_]S entitled ifor lesser ';1".ij"":-7F^R^^ sentence. - But learned tnal court, without considering entire facts and aspects of the co^e, punished him with mgximum sentence of ten years. The oppellant is a teenagep and he is behind the bars since his arrest, No criminal record is against him. Therefore, taking into consideration all the facts, the appeltant deserves to be treated with leniency. ^. 9) In the result, the appeal is partly allowed. Conviction under Section 376 and 506 of the IPC is maintained. Sentence passed under Section 376 of the IPC is ^t aside; instead, ftie appellant is sentenced to uhdergo R.I. for seven years and to pay a fine of Rs.lOOO/-(Rupees one thousand) and in default of payment of fine.to further undergo 51 for six months. Rest of the sentence and direction to run thesentBnCesconcurrently shall remain as it is^ Sd//- V.K.Shrivastava Judge padma