f32-; t- w HIGH^OURT OF CHHATTISGARH, BILASPUR Criminat ADRealNp,S7!5of2006 \Laxman @ Pakalu, S/o Ramial, aged 21 yeare, R/o Rssada, P.S. Batoda Bazar, Distt. Raipur (C.G.) - Versus State af Chhattisgarh, Thtough P.S. BaSodaBazar {Criminal appeai under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: - 1 I'-'l Mr. S.K. Dadsena, eounsel for the appellant. h/lr. Pankaj Shrivastava, Panel Lawyer for the State/respondsnt. Sinale Bench: Hon'ble Mr. T.P.Shanna, J QRALJUDGMENT (22-9-2008) 1. This appeal is directed against the judgment of conviction & order of sentsnce dated 29-7-2006 passed by the 1st Additional Sessions«Judge,Baloda Bazar in Sessions Trial No.83/2006, whereby learned Additional Sessions Judge after holding the accused/appeltant guiity for commission of offence of cnminat house trespass and attempt to rape, convicted him under Sections 450 & 376 (1) read with Section 511 of the t.P.C. and sentenced him to undergo R.t. for three years & pay a fine of Rs.500/-, in default of payment of flne to further undergo R.l. for twp iTionths and to undergo R.t. for four years & pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for two months, respectively. 2. The judgment is challenged on the groundthat without any credible and clinehing evidenc®,the triai Court has convicted and^^ntenced the appellant. 3. I have heard iearned counse! for the parties and perused the impugned judgment as aiso the record ofthetriai Court. / 4. Case ofthe prosecution.m brief,isthaton,2S-10-20CBatabout 11 a.m. when the prpsecutrbc (PW-7), aged 12 years, was alone in her house at Village Risada, Poiice Station Batoda Bazar, Distt. Raipur, and she was reading, the apfieltantcame to her room for having sewal intereouree wWh her, ttie , prosecutrix refused, on which he threw her on the co/t and opened her und^rgarment,. she tried to resist,,but ultimately, ttie appetlant iay over the prosecutrixandputhermatoorganonherprivatepart,atthattime,|hermother !" '•. . !. :;J ^- ^- 'lt- •flrlrfr' /<*<1 2 ^ came and the accused fled away from the spot. The prosecutrix narrated the incident to her mother and immediately lodged the F.I.R. vkle Ex.P-7. Her undergarment was seized victe Ex.P-1. Spot map was prepared vide Ex.P-5. The appellant wastaken Into 6ustody onthesame day vide Ex.P-IOandsent for medicatexamination under Ex.P-SA. He was found capable ofcommitting sexual intereourss vide Ex.P-6.- His undergarment was seized vide Ex.P-2. Document relating to age ofthe prosecutrix was seized vide Ex.P-3. 5. After recording the statements under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was flled betore the Judicial Magistrate, First Ctass, Baloda Baz^r who in turn, committed the case to the Sessions Judge, Raipur, from. whece tearned 1 Additional Sessions Judge, Baioda Bazar, received the case on transfer fortrial. 6. tn order to establish the guilt of the accused, the prosecution has examined as many as 12 witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the cireumstances appearing against him and pteaded innocence & false implication. After affording opputunityof hearing to the parties, leamed trial Court has convicted and sentenced the appeliant in the aforesaid manner. 7. Learned counsel for the appeltant submits that the appeitant has not committed any offence against the prosecutrix, the appellant & parents ofthe prosecutrix were alreadyon inimical terms relating to some land and as a resuit of enmity, the appellant has been fatsely implicated in the crime. The prosecutrix (PW-7) herself has specifically admitted that at the time of incident there was quarrel between both the parties, they wentto the Police Station and iodged the report, same has been acfmitted by Raju Joshi (RAf-8), father ofthe prosecutrix & Smt. Kera Bai (PW-9), mother of the prosecutrix. The prosecutrix has not been examined by the medical expert and no injury was found over her body. If the evidence of the prosecutrix is considered to be the substanUal proof to cohvict the aecused, then her evidence is not sufficient for conviction under Section 376 (1) read with Section 511 ofthe I.P.C., atthe most, the actofthe appellant mav fatl under Section 354 ofthe I.P.C. / 8. Reiiance has been placett-by learned counsSI forthe appellant in the matter of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) reported in IV (2006) GCR 115 (SC), in which it has been heid by the Apex Court thsrt if the accused is nst undressed and he has not asked the prosecutrix to undress, no question of penetration arise and conviction uhder Section 376 read with Section 511 of . the i.P.C. isillegal. ^ ^ 9. On the other hand, the judgment is supported on behalf of the State/ respondentand it is submitted that the evidence of the prosecutrix is sufficient to convict the appetlant. The prosecution has proved its case beyond ali reasonable doubts and noBody will falsely impticate a person in serious offence of rape, on the basis of some land dispute. 10.1n order to appreciate the contentions of learned couns6t for the parties, l have examined the materiat avaVable on record. The prosecutton is required to prove the following necessary ingredients ofthe offence that: - p) at the tfme of commission of offence, age of the prosecutrix was below 16years; <? (ii) the appellant has attempted to commit sexual intercourse with the prosecutrix; & (iii)the appellant entered into the house/room of the proseeutrix with intent to commit the offence which is punishable with imprisorimentfor life. 11 .As regards the question of age of the prosecutrix, the age of the prosecutrbc (PW-7) is ascertained by the Court as 12 years at the time of offence. Her father Raju Joshi (PW-8) has speciflcaliy stated in his evidence that herage is 13 years atthetime of recording hts evidence. Antu Ram Mahileshwar (PW-1), who is teacher, has stated in his evidence that he has not made entry in the admission register Ex.P-8. 12-The certiflcat®issued on the basis of admission register Ex.P-8 shows the date of birth ofthe prosecutrjxas 20-5-1993, thereby on the date of incictent i.e. 28- 10-2CU5, .the age of the prosecutrix was below 16 years. Age of the prosecutrix is nat much disputsd on behalf of the defence. It is established by the aforssaid evidence that age of the prosecutrix at the time of incident is beiow 16years. 13.As regards the question of attempt to commit rape, the prosecutrix (PW-7) who is a student of Class-V andabte to understand the questions & answers, has speciflcally statedin her evidence that at the time of fncidentshe was in her house, she was answering the questions given by her teacher in her room, at that time, the.appetlant came to her and (pught hotd of her hands and tned to push her down, he pushed her down tt^ce, when she tried to raise cries, he closed her mouth with the heip of a cloth and tried to commlt rape on her, at that time, her mothercame, on whtch fte appellant fled away from the house. Her father went inside the village, he was called and the Kotwariwas infbrmed, thereafter, they went to the Potice Statiori and lodged the F.I.R. vkle Ex.P-6. Her undergarment was seized vide Ex.P-1. ..^s—- 'fe^.' .) 14.Evidence of the prosecutrix is supported by the evidence of Raju Joshi (PW-8), father of the prosecutrix & Smt. Kera Bai (PW-9), mother of the prosecutrix, who has seen the incident. Smt. Kera Bai (PW-^) has stated in herevldence that the appellant lay over^he prosecutrix. Latelu (PW-1) has stated in hte evidence that the prosecutrix came along with her father & mother and went to the Police Stetion to lodge thereport. Ganeshu (PW-2), whom ttie prosecution has declared hostile, has atso briefly supported the case ofthe prosecutipn to the extent that the appeliant has committed some mischief (Chedchad) with the prosecutrix. Ratan Deshlahre (PW-4), Kotwar, has supported the case of the prosecution, but in his cross-examination para 8 he has stated that father of the s prosecutrix came to him at about >8t*9 a.m., he told the incident and requested to accompany him to the Potice Station, at that time.it was 10-11 a.m. Thls shows that this witness (Kotwar) was not very much acquainted with ttie time. 15.The prosecutrbc (PW-7) has admitted in her evidence that her family was having inimical terms wlth the family of the appellant who was her neighbour, even they do not go to each others house. She has admitted that on date of incident there was quarrel between both the parties and after the quarrel ftey went to lodge the report. Her father Raju Joshi (PW-8) has admitted in para 9 of his cross-examination that he has lodged the report of mischief (Chedchad). Her mother Smt. Kera Bai (FW-9) has also admitted the previous dispute of land befayeen the parties. 16.It appears from the evidence of the prosecutrix (PW-7), herfather Raju Joshi (PW-8) & her mother Smt. Kera Bai (PW-9) that after the incident there was quarrel between the parUes, thereafter, they went to ttie Potice Station and lodged the report. Parties were having some dispute of land andthey are neighbours. Buttheir evidence shows that they have lodged the false F.I.R. or they had not implicated the appeliant falsely on the basis of previous enmity. It appears from the evidence of the prosecutrix (PW-7) that at the time of Incident either she was helpless or she was a consenting party and when the appellant was trying to commit the offence of rape, her mother came and saw the incident on which Uie appellant ran away. Age of the prosecutrix is below 16 years, therefore, the question ofconsent d<?<gs notarise. The prosecutrix has speciflcally stated in he^ewdence that the-'appetlant lay over her and hs was trying to commit rape on her. She has also stated that the accused was touching her maie organ tothe prtvate parte of the prosecutrix. This is sufficient to constifcite the offence of attempt to commit rape. The appellant has entered into the house of the prosecutrix with intent to commit rape, but he has not committed rape, he has oniy attempted to commit rape. Soma 17.As regards the case law cited by leamed counsel for the appellant i.e. Tarkeshwar (supra), the factsof that case are distinguishable on facts to the present case. tn the above cited case, the appeltant & the prosecuttix were undressed, but inthe preseht case, the appettant has removed his clothes as also the clothes of the prosecutrbc and he had inserted his male organinto the prwate partofthe prosecutrix. - 18.After appreciating the evidence availableon record, teamed frial Court has convicted and sentenced the appellant in the aforesaid manner. The triai Court has not committed any illegality or inflrmity in convicting the appetlant under Sections 450 & 376 (1) readwith<$ection 511 of the t.P.C. The conviction is tff based on reliable and credibte evicl&nce. 19.As regards the question of sentence, theappetlant has tried to commit the offence of rape againstthe prosecutrix, who is aged about 13 years at the time of incident and the age of the appellant at that time was 20 years. The appeilant is in custody from 29-10-2005 Just afterthe next day of commission of offence and he has completed about 2 years 10 months ofjail sentence. y.'. . . . TaWng into considerataon the age of the appettant and the circumstances in which he has attempted to commit the offence, 1 am of theview that R.l. for 3 years & fine of Rs.500/- will meet the ends of justice for commission of offence under Section 376 (1)read with Section 511 ofthe i.P.C. 20.Consequentty, the appeal ispartly atlowed. Conviction & sentence of the appellant under Section 450 of the I.P.C. are maintained. Conviction of the appellant under Section 376 (1) read with Section511 of the I.P.C. is also maintained, however., sentence imposed upon him underthis count is reduced to R.l. foc'three years & fine of 500/-, in default of payment of flne to fijrther undergo R.i. for two months. Sd/- I^RSharma Judge '-^,_.—. aa