HIGH COURT OF CHHATT1SGARH AT BILASPUR LSB: Hon’ble Mr.T.P.Sharma.J.‘| Criminal Angeal No. 99 of 200$ APPELLANT Rajendra SIG Rup Smgh Gond aged abcut 18 years P/o VIHage Neechefmka DGlIce Statmn Korar District North Bastar Kanker LG VERSUS RESPONDENT State of Chhatt;sgarh through Ponce Statxc“ KorarDIsxrtdKanker CG Shri Vishnu Koshta counse! for the appellant. Shri Rajesh Ranjan Sinha PL for the respondent. CRIMINAL APPEAL UNDER SECTION 37432) OF THE CQDE OF CREMWAL PROCEDURE GRAL JUDGMENT (11 .82008) This appeal is directed against the judgment of conviction and order of sentence dated 30.12.2005 passed by the Additional Sessions Judge (FT ) Kanker, in Sessions Triai No. 4/2005 whereby the appeiiant has been convicted for theoffenees punishable under sections 376 (’i) and 505 or" the indian Penai Code and sentenced to undergo rigorous imprisonment for 7 years and pay fine of Rs500 in defauit of payment of fine to further undergo RI for six months uls 376 (1) and to undergo Ri for six months u/s 506 ofthe Indian Penal Code. 2i The judgment of the trial Court is chaiienged on the ground that without there being any evidence regarding the age of the prosecutrix to be below 16 years on the date of incident and also regarding her not being a consenting party to act attributed to the accused, learned trial Judge has committed an illegality by convicting and sentencing the accused/appellant as mentioned above. 3. Prosecution case in brief is that on 24.112004 at about 8 p‘m when prosecutrix Chandawati was in her house. two persons nameiy Murha and Chhanu came and asked for tobacco from her. The prosecutrix gave them tobacco and then they went away. Thereafter; when she was going for sleeping; the ascusedfappeliant came and caught hold of her hand and dragged her to a nearby mango tree, made her Iie dawn and committed forcible sexual intercourse with her. She came back to her house but due to fear she did not disctose the incident to anyone When her mother came from viiiage Mode; the prosecutrix narrated the incident to her. Her mother caiied the meeting where also the prosecutrlx narrated the incident and thereafter on 27.11.2003 the report was lodged. Prosecutrix was medically examined by Dr. Sarita Goti (PW- 15) who opined that her secondary sexual characteristics were not fully developed, her vagina admitted one finger with pain, blood like fluid was discharging from the vagina and no injury was noticed on her private part. Vaginal slides were pared and sent for chemical examination. On query being made, she has explained vide Ex. P—23 that hymen of the prosecutrix was ruptured and her vagina admitted one finger with pain and there was no swelling on her private part. Spot map Ex. P-2 was prepared, her stained undergarments were seized vide Exi P—3. Sealed packet of slides was seized under Ex. P—7 and spot map Ext P-8 was prepared by Patwari. Thereafter, accused/appellant was also medically examined by Dr. D. Balram Nag (PW-14) who opined that the accused/appellant was capable of committing sexual intercourse. His stained undergarments were seized under Ex. P-‘l2. On chemical examination of the seized articles; presence of sperm over the same was confln'ned vide Ex. P24. 4. Statements of the witnesses were recorded under section 161 of the Code of Criminal Procedure and after completion of investigation charge was filed against the accusedlappellant in the Court of Judicial Magistrate First Class, Kankerwho in turn committed the case to the court of Sessions, Kanker from where learned Additional Sessions Judge, received the same on transfer for trial. ,_ as many as 16 witnesses Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the material appearing against him in the prosecution case and pleaded his innocence and false implication in the case. o. ln order to prove the guilt of the accused the prosecution has examined 6. it is argued on behalf of the accuseiappeuant that the prosecution has utterly failed to adduce any evidence regarding the age of prosecutrix to be below 16 years on the date of incident and also regarding the absence of consent on the part of the prosecutrix for commission of offence of rape by the accusedlappellant. He further submits that there is delay of three days in lodging the FIR which has not been satisfactorily explained, Reliance is placed on the decision of the Supreme Court in the matter of State of Chhattisqarh V. 1 Lekhram in which it has been held that though the school register showing the age of the prosecutrix is not a conclusive proof of age, yet it may be ud for corroboration of the statements of th parents of the prosecutrix. Further i'eliance is placed on the decision of the Chhattisgarh High Court in the matter of 2 in which it has been held that on the basis of presence of 32 teeth in her jaw, physical appearance, delopment of secondary sexual characteristics and the ev ossification test, the age of the prosecutrix may be ascertained. Yet reliance is placed on the decision of Chhattisgarh High Court in he matter of 3 in which it has been held that in the absee of radiological test, entry in e Kotwari register and statements of the parents, age ascertained in the Court may be accepted. 'r—) 7. On the other hand the impugned judgment of the trial Court is supported on behaif of the respondentz’State. lt is submitted that the Court has ascertained the age of the prosecutrix as 14 years. Her secondary sexuai characteristic were not developed and the doctor has ascertained s the age of the prosecutrix as 14 years on the basis of her physique. According to the contention of the counsel for the respondent/State the prosecutrix has herself has stated that the accused/appellant has 1 2006 AIR sow 1982 2 2006(1) CGLJ 453 3 2006(2) CGLJ 328 se e Kanhaiya V. State of C3. t Sudhari alias Shivadhari Sinqh V. State 0t C.G. nc th committed forcible sexual intercourse with her without her consent, though no injury on her body and private parts was noticed. He further submitted that the delay in iodging the FIR has been satisfactorily explained and therefore, the impugned judgment does not call for any interference. 8. ln the instant case, the prosecution is required to establish the following ingredients: (i) accused/appellant committed forcible sexual intercourse with the prosecutrix against her will and without her consent, by putting her under threat; (ii) at the time of incident the prosecutrix was below sixteen years of age; (iii) Delay in lodging the FIR has been satisfactorily explained. l 9. ln order to appreciate the contention of the learned counsel for the parties, l have examined the material available on record. 10‘ As regards the age of the prosecutrix, learned Additional Sessions Judge, Kanker has ascertained the same as 14 yearst Prosecutrix herself has stated that on the date of incident her age was 14 years. Lata Bai (PW-2) who has performed second marriage with one Brijtal has also stated the age of prosecutrix as 14 years at the time of incident. Dr. 8arita Goti (PW-1 5) who medically examined the prosecutrix has stated her age as 14 years. She has stated the secondary sexual characteristics were not fully developed, her vagina admitted one finger with pain and there was old rupture on her hymen. In case of commission of sexual intercourse with a girl of 16 years, the prosecution is required to prove her age on the basis of Ko‘twari register, birth certificate, school certificate, physical appearance and ossification test. But the prosecution has not tried to collect the evidence to this effect. Chandavati (PW—1) has admitted in her cross examination in paragraph 13 that she is not in a position to tel! her date of birth. Lata Bai (PW-2), the mother of the prosecutrix has also admitted in her cross examination that she is not in a position to tell the date of birth of Chandavati. Brijlal (PW-6) has admitted in his cross examination in paragraphs 6, 7 and 11 that he was aged about 42—45 years, 20 years back thereto he married mother of the prosecutrix and at that time the prosecutrix was 5-6 years olcl. However, this witness has admitted that he is illiterate and not in a position to tell the date of birth of his children. Thus, according to the assessment of age by the trial Court, statement of the prosecutrix and her mother Lata Bai, the doctor who medically examined the prosecutrix. the age of the prosecutrix was 14 years on the date of incident. As held in the case of Sudhari alias Shivadhari Singh (supra) in the absence of any other evidence the age stated in the Court may be relied upon. As held in the matter of Sidheswar Ganquly v. state of West Benqal 4 and in the matter of State of H.P. v. Manqu Ram 5 the age of the prosecutrix may be ascertained on the basis of her physical appearance and the statements of other witnesses. On the basis of the statement of prosecutrix herself, assessment by the Court, statement of her mother and the physical appearance of the prosecutrix, it may safely be inferred that at the time of incident, she was 14 years of age i.e. below 16 years. 11. As far as complicity of the accused in the crime in question is concerned, the prosecutrix (PW-1) herself has stated that when she was going to her house for sleeping, accused came and caught hold of her hand, when she tried to raise cry, he pressed her mouth, dragged her near a mango tree, removed her underwear, made her lie on the ground and inserted his penis into her vagina and thereby committed forcible sexual intercourse with her. She has also stated that at the time intercourse she was weeping. immediately after the incident she did not disclose the incident to anybody and when her mother Lata Bai came from village Mode, she narrated the incident to her. Thereafter, meeting was 4 AIR 1958 SC 143 5 (2000) 7 SCC 224 called where also she disclosed the incident to the members present in the meeting and then matter was reported to the Police statement of the pros’ecutrix is supported by Lata Bai (PW-2), the mother of the prosecutrix‘ Factum of caning of meeting and disclosure of incident by the prosecutrix there is supported by Ramuram (PW-3), Sagar (PW-4), Brijlal (PW-£5) and Mankur (PW—7) Dr. Sarita Goti (PW-15) has stated vide EX. P-10 and P-23 that hymen of the prosecutrix was ruptured, her vagina admitted one finger with pain and there was some biood like discharge from her vagina. She however stated that she did not count the teeth over the jaw of the prosecutrix and she has also not examined her physicai appearance. She has admitted in paragraph 11 of her cross examination that in case of first sexual intercourse with a young girl redness and swelling in vagina remains present. in paragraph 17 of her cross examination she has stated that due to swimming, rope jumping and cycling also hymen may rupture. Prosecutrix Chandavati (PW-1) has admitted in paragraph 20 of her deposition that she used to swim in the pond. She has been subjected to lengthy cross examination by the defence and a suggestion put to her that she used to call the accusedlappeilant to her house, has been denied by her. She has admitted that she has not used force while the accused was committing sexual intercourse with her but at the time of informing the police about the incident she was weeping. FIR however does not mention that she was weeping at that time rather it is mentioned therein that when came back to her house, she ‘ was weeping. ’12. This is not a case where the incident can be seen by someone and therefore, she was compelled to inform her mother when she returned from village Mode and after calling the meeting the matter was reported to the police. This is a satisfactory explanation for lodging the report on the third day of the incident Defence suggested to Lata Bai (PW-2) in paragraph 11 of her cross examination that her daughter told that the appellant committed “Galat Kaam“. Prosecutrix has not stated that she was a consenting party to the sexual intercourse by the accused/appellant. Rather she has stated that when the accused was committing intercourse with her, she was weeping but being \ l l /r, ”;f helpless she could mt raise my. She has further stated thai the accused/appeuant committed forcibte sexua! intercourse with her and denied the suggestion that she used to can the accused to her house. Statement of the prosecutrix to the effect that the accused committed forcible sexual intercourse with her is sufficient to draw an inference under section 114-A of the Evidence Act that she was not a consenting partyt Thus the fact that the prosecutrix was not a consenting party is established. 13. After appreciating the evidence available on record learned trial Court has convicted and sentenced the accused/appellant as mentioned above 14. Thus for the forgoing reasons, it is established that the prosecutrix was beiow 1 6 years of age at the time of incident and the accused committed sexual intercourse with her against her will and without her consent. The ocular and medical evidence adduced by the prosecution trustworthy and inspires confidence. Therefore, the conviction of the accused under sections 376 (1) and 506 of the lndian Penal Code is sustained and does not call for any interference 15.. As regards question of sentence, undisputedly, the accused has committed forcible sexual intercourse with the prosecutrix aged about 14 years. The trial Court has awarded the minimum sentence prescribed for under section 376 of the lndian Penai Code which also does not call for any interference by this Court. 16. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. The impugned judgment of the trial Court is mainained. t T. P. Sharma Judge Sdl-