am APPELLANT T‘TISG‘ Ru A‘r BILASEUK n Frimhml Anneal D! § 2&912003 N and K11 Tn al‘ Sdl- DmENDRA MISHRAI Judge Him-1 cuux'r ur‘ (xiii Vs. State of Chhattisgarh Judgmmlt post for 174 i i-ZGO‘?a; gm 1 ASPU'R u, iATTIsaAKI-i AT Crimirm‘ Agpeal Ne; 2-69.1290- Nand Kumar, S/o Sitaram Sahu, aged about 37 V'sars, Pin villags -— Chnreda, Police Station — Kurud, Distt. Dhamtari (CG) AV“ ‘*w RESP§NEENT State of Chhattisgal‘h , PRESER'T: Shn' Shailendra Dubey, Ativocate for the appeiiant. WM NPPwi Mehta, Pansl Lawyer fer the State. Hub» ; . vvAmJ “7—1 1-2007; ‘ Elirend‘ra Mishra, J This ‘criminai appeai is directed , against the judgment of conviction i and order of sentence dated 20th December, 2002 paesed in ST No. 2;:58/‘2002 whereby iearned Addifionai Sessions Judge, Dhamtari has convicted the appellant under Section 376(1. and 566 ‘ part i1 of LRC. and sentenced him to undergo-RI. for if) yeais and to pay a fine of Rs. 1000[—, in defauit of paymeni of fine, to undergo additionai RI for 6 months and to undergo RI. for 3 years, to pay a Iine of Rs. 500i — and in default of payment of fine, to further undergo additional RI. for 3 months respectively. Both the sentences have been directed to run concurrently. 2. Case of the prosecution in brief is that the prosecutrix resides in village Chataud with her parents, brothers and sisters. On 28—4- 2002, PW. 6 the prosecutrix was sleeping in veiandah with her sister when around 11.00 p.111. her father Nand Kumar woke her up and committed rape with her after undressing her. ln the morning she narrated the incident to her mother lVlongra Bai (RW. 8), however when she enquired from her husband, he threatened her also and out of shame, the incident was not disclosed by them to the villagers. On 5-5—2002, around 9.30 p.m. when she was sleeping in her room after closing the door, accused tried to enter in her room by removing the ceiling (Patav), however the prosecutiix woke up and told her mother. The accused reached their also and asked the prosecutrix to ’sieep with him and on refusal, he threatened her as a result of which the prosecutiix went to her matenial—grand—motherh house in the night itself and narrated the incident to her also. A meeting of ni, : @ b4 Panchas was convened in the village. in thE saki‘mactjng, {km app‘sl‘lant admitied his guilt and tlmreafter the report was iodged. 3. The prosecutrix was S611t for mcdicai examination to Main Hospitai, Dhamtan' where Dr. Smt, Asha Tripathi (RW. l3) exmnineii her and gave her report of EX. P—ICA. After completing investigation, charge sheet was iiied in the Court of Judiciai magistrate First Class, Ullamlal‘l 811d. U1€ saJnE VFaS 1‘8C61V6d 011 UwlSIEI' IOT trial DV 1Ca1n€d Adelitional Sessions Judge. 4. During trial, the prosecution examined 14 witnesses in all and Thereafter statement of the acéusetl was recortled in which he denied the evidence appearing against him in ‘ the prosecution case and stétéi that he has been implicated in a false case out of animosity and he has specifically pleaded that he has not committed rape with the grosecutrix. in fact, he used to reprimand the prosecutrix for Watching TV. He used to stop lvlongra Bai from going to her parental house and therefore they are all falsely implicating him. Since he has encroached l i/‘2 decimal Of Government land‘and Panchayat people were insisting that he should remove the encroachment and, therefore, they are falsely implicating him However, the trial Court 1‘, 83161” HEal‘lllg U1€ COUIISEI fOl" HIE Dal‘tiCS, [laS COHVlCtCG. anfl SEDICHCEQ the appellant as mentioned in para l of the judgment. 5. Learned counsel, for the appellant submits that the version of the prosecutrix is full of discrepancies. The case of the prosecution based on the report of the prosecutrix is that the alleged offence was committed by him around l 1.30 p.m. however, the pnosecutrix in her cross—examination has stated that the incident occurred at 4.00 am. at the time when the appellant and his wife used to wake up normally and thus there is serious discrepancy in her statement with respect to the time which creates doubt about the veracity of the version of the prosecutrix. Referring to the statement of Dr. (Mrs) Asha Tripathi (RW. l3), it was argued that the doctor did not find any external injury over the person of the prosecutrix. Her secondary characters were well developed. There was no injury on her private part and her hymen was intact and she has categorically stated that she cannot give definite opinion regarding commission of rape. On further query this witness has clarified that since she did not find any iniuryover the private part of the prosecutrix or over any part of Lu her body anci had foulld the hymen of thE prosécutn'x intact, thm‘efom, she opined that partiai penetration might have taken piace but it was not pOSSible to definitely opine that the rape was eommitted or not. Referring io para ll of her Close—examination, it was argued that this; Witness has further statec‘t that iooking i0 the age of the prosecutm‘x, if forcible penetration of maie organ iS made in her private part, hymen could rupture and inflammation, reddishness and sw‘elh’ng could he present. Refern'ng to the statement of RW. 8, it has been argued that commission of rape as alleged by the prosecutrix is highly imprdbable as the proseeutrix has not stated that she suffered pain at the time of cOmmission of the offence and hey fmother has also admitted that she did not hear cries of the proseeunix at the time of commission of offence. So far as extra judicial confession before PW. 5 Siteshwar and PM]. 9 KamKishun is concerned, Witness Siteshwar in para 6 of his statement has oniy stated that the elders of the village gathered in Panchayat Bhawan, Nand Kumar was also summoned and on *heing interrogated, he confessed his guilt and thereafter it was advised to lodge report. This witness nowhere states that he admitted that he committed rape with the prosecutrix. Similarly RW. 9 Ramkishun is Kotwar of the Village Who has also claimed in para 4 that the appellant confessed navmg committed rape with his daughter and asked to settle the matter in the village itself, however diary statement of this witness was not recorded during investigation and he made this statement for the first time. before the Court as he was called by the prosecution to prove entry in the Kotwari register. 6. On the other hand, learned counsel for the State has supported the impugned judgment. 7. l have heard the learned counsel for the parties. l have perused the impugned judgment as also the evidence available on record, 8. Conviction of the appellant is based on the statement of the prosecutrix (PW. 6), Sukhwari (RW. '7), Siteshwar (RW. S), Ramkishun (PfW. 9) and lVlongra Bai (PW. 8). 9. The prosecutrix has categorically stated in her deposition that the appellant woke her up in the night. and forcibly raped her after undressing her. She narrated-the incident in the morning to her mother Mongra‘bai. ln the next week on 56-206 also, when she was rm sle€pi11g in her room and when $116 saw that tiié app€1iant was removing the cei‘n'ng of her 100m to enter in her room whereupon she j went to her mother, however the appellant also reached their and beat her and asked her to sleep with him and on her refusal went to bring weapon and at that juncture, she went to her maternal—granti- mothere’ house and nairated the incident to her and the maternal uncie Hiteshwar. 10. it is true that this witness has admitted that her father used to stop her from going outside to watch TV and used to beat her hrutaliy and she has also stated that the incident occnrred at 4.00 a.1n. however mereiy on the ground oi" discrepancy of time in her u" statement, i her version . regarding . commissmn . . of rape and _ indecent . . , advancement in the next week cannot *be suspected, particulariy taking into ‘Consideration that the allegation is being made by the daughter against her father. it is aiso true that the tady doctor deposed that on examination, she found hymen of the prosecutn'x intact and did not see anV visfb‘le internal ‘or externai injury over the person of the prosecutrix, however for committing rape oompiete penetration is not the requirement of iaw and even partiai penetration is sufficient to constitute the offence of rape defined under Section 3‘75 of i.P.C. Absence of infiammation, sweiiing or reddishness over the private part of the prosecutrix is irrelevant as the prosecutrix was examined by the doctor on 7Yh May, 2002 i.e. ahnost if) days after the commission of the offence and, therefore, no visihie sign of the offence could be noticed after such a long delay. Version of the prosecutrix is duly corroborated from the statement of Mongra Bai (PW. 9) who is none other than the wife of the appellant and Sukhwati (PW. ‘7), mother-iii-law of the appellant and both of these witnesses have corroborated the prosecutrix in material particulars. Case of the prosecution is further established from the statement of RW. 5 Siteshwar and Ramkishun ( PW. 9) as both of them have stated that in the meeting of the elders, the accused was called who admitted his guilt and who requested to settle the matter in the village itself and not to lodge the report. The argument of the appellant in this regard that it refers only this much that he admitted his guilt and it does not refer that the appellant admitted that he committed rape, is concerned, it is only a corroboratory evidence to § m\ \€ tha version of the prOSecutrix and other WimeSS€s ahd it is viewad in the context of the statement of the prosecutrix. 11. The defence of the appellant that he used to‘repr'imand the prosecutrix for going to the house of others for watching TVand 1 therefore, she has falsehf impiicated him in a faise case of rape anci that he stopped his Wife from visiting her parentai home and, therefore, she is making faise aliegation Of rape against him cannot he accepted as no daughter and Wife wouici implicate their own father and husband in such a heinous crime of committing rape with his own daughter for such a‘mviai reason, Simiiariy the Panchavat peopie are stating against him as hehas made encroachment in the *government iand, is also not acceptable for the same reason. 1‘2. in the result, the conviction of the appellant under Section agbu) and E306 Part H o" LRC. and sentence imposed under those sections are hased on proper appreciation of evidence available on record and the same do not call for anV interference. l5. the appeal being devoid of substance deserves to be dismissed and it is accordingly dismissed. Sdl- i DHEENDRA MISI‘RAJ Judge §