HI6H COURT OF CHH4.TTI.S6-4RH .4T fSB: Hon'bieMr. T.P-SH.4RM..4- J.t •^•Wlf n- 1 1^-^r—,»^,.'1-T.*^ B +^ ^ ^y/T ^ Ifl tlt^CT-stf. »^ -aff '1 -^ il Aooe.al No-301 of 2005 ^shwsni Ku^'sr' Vft r'n.t^ ii'f' f-'hhntl'g'c^i^r'h s'^'r's^^ 'ne- fnr 17/7/?QOO Sd/- '•^. Sharma Judge j:^-^£ »; APPa-LANT (Injaii) HieH COURT OF CHHATnS6ARH AT BILA.SPUR Cr'iminal Aooeai No. 301 of 2005 Ashwcy KIjmc'r QQ^d cibo'jt 19 years, Son of Shri &hageto, Resident of Viiiage Jav'aii, P.S. Banki mongra, DistrictKorba(C.e.) VersLis RESPONDENT State of Chhattisgarh (APPEAL UNbER SECTION 374 (2) OF THE CODE OF CRIMIN.4L PROCEOURE, 1973) Pr'essnt: Shri bhanresh Shrivastaya, counse! for' 1+ie dppellant. Shri Sanjeev faimar Agrawal, Panel iawyer for the State/respondenT. (SB; Hon'ble Mr. T.P. Sharma. J.) JU&6M.ENT (Deliveredon 17th July, prQpr'ie.|ty iy this appeal, the appe!!a"t has cha'lenged +he !ega!ity and of th®Judgment of convsction Q*id order of ssn+ehce ddtsd 11.2.2005 by the Sessions Judge, Korba, i" Sessions CaseNo-19/2004 'A'he'.peby learned Sesslons judge after' holding the appelluit guiity for- con''missjo't resD^ convict^d und^?* S^ctio" 3T6 fl^ bf th^ Zndion Pe"<s! Code'- Qnd ssn' him +o undergo rigor'ous itnprisonment for 10 years and to poy a fme Rs.3000/-. in <je,fau!t of oavment of fine additional rliaor'ous imD'*isonme.ntfl ''"""" "' """' —-••-•—^•3-—— ,...r. .—....yy,j 1 vear- -; ;-' the bf 2. Legahty and prppriety of the Judgment of conviction & orderj sentence is chaHenged on the ground thnt without any evidence ,re!a+ing com?niss!on of the offence of rape with dumb an'l deaf womcir! who is be the &9®of 16 y^ors, the tr'ia! coUM ha< co?ivict^cl and se"t®r1ic&dJH^e oppel nentioned and+herebyco"iTOitted'anil!ega!itY. , flS ri' <?f 'csr fro OW mt ^<A< 3. Br'ief facts of the CtisB.ws th.gt •t+ie appellant and prosecutrix ShQl<untct.!e1t rtp€ r*esidents of yiJI<x^e Jayci!i. Ths pr'osecutrix is ds&f Q'nd duiTtb woman. On 30.5.2004, Br-uhaspati Bai (PW-2) who was not present in her house, Sunita (PW-1), sister of the prosecutrix, a9ed about 12 yeors, prosecutrlx Shckuntla (PW-3), iSged about 14 years wers prssent in h^r houss' where accused ccme, a"d after removing clothesof 1+ie prosecutrix and own ciothes committed intercourse with the prosecutr'ix. Mer- sister Sunita (PW-l) came at the time of the incident, then the appelinnt fledaway from the house of the prosecutr'ix. Sunita "nr'nited the incident to her mother' a"d +he pr'ose.cutrix also narrated the incident to her mother by agn and gestur'e.. lood wag foyn<| ov'sr hsr uncler(30.?fttin6Rt- Mother o"f th^ Drosecutrix was lodged the F.I-R- vide Ex.P/1 on second day i.e. 31-5.2004. The pr'osecutrix was examined by Dr-.Veena Agrawal (PM/-5) vide Ex.P/12 whb opined that the prosecutrix is deaf and dumb woma". Har secon.dary sexua! characters were "ot developed. Circuiar redness was found over her Hymen and yaglnal admits on!y deep of the finger- T"?o slides were prepared. Dr. Veena Agrawnl has a's".,. opined that somebody atten'pted to commit sexua! in+ercourse with he.r. Accused WQS ©Iso^xcif^ined by t)r.S.!^Sir'so ^W-T) vids Ex.P/13 who 'fouhd that 1+ie accused is capoble to comm!+ in+ercourSe. Spot may was prepared vide Ex.P/5. Clothes were seized yide Ex.P/6. Undergarment of the accused was seized yide E.x.P/7. Si'des of vaqina! smear' were seized vide Ex-P/8. Art'clss W€T€SBnt for che.niicol <xn^\ys\s. -t+ie the. +0 4ftgr r'gcordinci thc statls^€intsof 't^®wtnssses undgr Sectio?i 161 of C"de and after completion of inyestiga+ion, charge sh.eet w"s file<:l..b4forB 'dicial Macsistra+e First Ciass. Katahor'a who in tur'n co'nmi+ted 1tte cdse ^y.^,.. „.«, .. ~. <—-^,^,—. j..-.^.....^ .., .„. .. -.-.....,...^.^-.^..^ Court of Sessions, Korba. , ., 5. In order to pi'oye the guHtof the accused/appeNant, the proSecuC'iOn has examined o.s many as 7 wi+nesses. Stfftement of the accused wds under Section .313 of the C"de where he denied the circunnstflnces app( ngo.inst him and innocency and faise Jir.plicatio" is claimed. The accu^ed r'ecorybd iearm tfas ••• 1 also e.yamined defence wi+ness Bhum' bcs (&W-1) who has deposed that fir-stty mother of the prosecutrix tr'ed +o implicate the nccused for 1+ie offence of theft. When quer'y made by the persons then she turned the ver-sion and imo'icated the nccused for the offence of sexua! mtercourse. 6. Leorneci coun'se! for "riie cppeHant yehemently argued that +he present appellant has not committed any sexua! intercourse-with the pr'ose.cutrix. He h^s fal^jy Impijcatsd by the mother of th©pro^scutrix- Leam'srl counseJ further submits that age of •t+ie prosecutrix is not below 16 years a"d the prosecution has not proved the fac'hjn' of consent. 7. On the o+her ho-"d, learned counse! for the State/respondent suppor-ted the Judgmentimpugned. ; In order to establish the age of the prosecutr'ix, the pr'QSecutio" has examined only Dr.Veena Agrawal yW-5) wh" has deposed that the age of tte prosecutri.x is 12 yedrs. Her secondary sexual chflracters were notdeveloped.^ !-fBr- age was ascertained by the Court as 14 years. Bruhaspat' Bcti (PW-2) mother of •t+>e pr'osecutr'ix has a!so deposed the age of the prosecu+rix is 12 years. Bn-ihospati Bai has denied the suggestio" i" para-7 •rtia+ the age of +hB prosecufr'ix wo.s rpore than 16 years. Age ascertained by the doc+o.r on the basis of herphysic especially the fact l^ia't' seconda'Y sexusl characters weRe not deyeioped. It can ba safe!y inferred that the age of tiie pr'osecutr'ix at tha tii^®of i^c'ds^t wos bslow 16 vsQrs. 2). 9. Sunita (PW-1), sister of -1+ie prbsecutri.k,-BF-uhaspati Bai n'other' of theprosecutrix ond &r.Veena lAgrawg! PW-5) had deposed •Hio?!' the prosecutrix is deaf end dumb. 6r'.Veenc Agrawa! (PW-5) has a.1fio deppsed that 1+>e Dr'osecutrix was not i" a Dosi+ion to tal.k at the time of eyidence. The • [ Court has observed that the pr'osecutrix was^deafand dumb^ and has :sta'tB^I by sign and gesture. bumb and deafne?s ofthe proseci.il'F'ix is eveniadmitte'i by the defence witness Bhiun'i&as (6W-1). ^ 1^ K^ j., Kl 10. I" order to estcbllsh the con'iplicity of the accused i" the crime in que?tiqn, the prosecution has examined Shakuntala (PW-3) who was not m a losition to talk but has stated by sign gesture about coiT'.missibn of sexua! '"tercourse wi'Hi her. Sign a"d ges+ure of the prosecutr-ix was recorded by +he Sessions Judge wh.ich is as undeF-;- "^irsft ^ ^y!!'is 4;<<^ T^T ^rar l^? Rs'y') ^•t^i^ ^TST ?w pfe^! ^ ws8 ^ sft^^rT 'st ^9!!-i! cR aTX(^ d'^irf! '4 ^^ a;T 1?^ ft ^t ^id'to^ 3it? ^Tsft '^t -???I^'g<? ^'?[T7T f^i'IT ft? 3[P^gtRi ^ ^ift g-SR gw^ WaT f^IT i •srf^.RT -4 ^R ^ ^i WCT ^%T 3ira R><i| MT !". Learned Sessions Judge has clso '•ecorded the suggestion denied by the witness which is as under'- ; 'ST^ W»T ^W ;l€ffew t dt wsft i^R ^t i^ara ^ ^rcT ^ t sit^ a^l<r T"T grf^WERff < .ffs^f <^t ^&R <^t t". . Sunita (PW-1) who is sister of the pr'osecut''!X has deposed that whe" she\ cama to her* house she saw that the accused was present in he" house a"cl sleepi.ng ovsr the prosecutr'ix. Both were necked. When she tried to c!ose the door, the accusedpushed her and fled awoy from the hou<e. Th® prosecutrix was lying over the bed nnd undergarment of the prosecutrix was stand with biood which she washed. Her' wother came at 7 p.ni. at evening then herseif cmd her sis+er prosecutrix inforn<ed the scEifcl i"cide"t to her mother then her mother narpated the incident to her br'p+her' 6'r'dhar'i and son &e«pak. Bruhaspati Bni (PW-2), mothei" of the / (? prosecutri.x, has deposed that when she came to her house at 7 p.ft.jt'hen the prosecutr'ix ond Sunitn "arrated 'l+ie incident. She saw/Ae blood stond over the bed She narrated the incident to Kotwar and lodged the F.I.R. on +he second day. The. pr'osecutrix was examined by t>r.Vee!?a .Agrawa! (PW-5) who has speciflcdl!y deposed that she found redness en the externaS part of hyme" of th&prosscutrix which is Sugges+iye of ts!!6 foict th?st somebody hcis tr'ed to c6miTH!t sexu^! int©rcoijr'sewi^ii her'l X" / .—-,.,...,.-.—^ ^—^..„ . - ^. „—„-—--. .. ^ . >—..^ ^. Ai hs>rl deto'l cross-^?<ct?n|p.Gt'QH. she h&s deDossd 'ti'^dt rsdpess <tf hyynen wds not as a I'esuit of ctny infection or as a r'esult of insect bits. Defence uiitness Bhumi Das (DW-1) has deposed that on the date of incident a+ about 7-8 p.m. mother of the p>'osecu+r'ix came to him and informed that ar'ticles were s+o!en from her house at about 9 p.m. Somebody has broken her house and breaking lock and +heft hds been CQmmitted o."d also informed that the accused has committed the offence of theft, the" thss^ wi1r!esse3 refysed to QO to the hous® of the rnother of the; " prosecutr'i.x. He hos a!so deposed that on his. query, mother of the Dposecutr'x heis chanaed hef versior1 csnd told that th$ occused Dushsd ths Drosscutrix ^nd co^?nitt^<i SSXUQ'! intsrcour^ wit^i heE". Bhu^ni Gsis (DW-1) is a witness of special ca+egory whom mother of t^e pr-osecutrix has narreted part of incident. Aforesoid sta+ement df Bhumi bas especia!!y he was Kotwar of the yilSnge doesnot inspire confidence. 11. Statement of the prosecutriK recorded on the basis of sign emd gesture shows that the present appellant has comn'Iitted sexual i.nter'course wil+t her. Sunito. (PW-1) has seen the incident She hcs also stated the. same thin.Q. In her detai! cross-examincstio", she has denied the. suggestjon of fo.ke impHcation. Even ther'e wos no occasion to i implicate falsely the appellant. Ver-sion of -rile prosecutrix and her siSter | is supported by the medica! evidence ond injury found over hymen of the j srosecutrix though thers is s^o !aceration on hyrnsn. No '"jury was foupd | over her private parf. &r'.Veena Agrawa! (PW-5) has deposed that some person hos at+empted to cornn'iit sexual intercour'se with the prosecutriS and categor'icaHy denied that injury oyer her hymen was as a reai!+ bf | •'':,' some infection os" insect bite. 12. For the commissior' of offence or sexual intercourse, c6mp!ete| int^rcour'ss Is stot necessarv. Dartiai D€;ristrati0ifi is suffic'fiint tcl cons+itute the offence of rape punishabte under Section 37& of the Indian Pena! Code. Pr'osecutrix Shttkuntala (PW-3) is dumb and deaf'ancj .1 womcm of retard a"d undeveloped broin was not in d position to give j ? i consent. Her age was a!so beiow 16 year's at the time of commissior' of offence. Her* s+atsment by sign G?id gssture corroborcited by the statement of Sunjta (PW-1) and is sufficient for drawing inference that the present appe,lla"t has committed intercourse with the prosecutri-x. 13. .After* apprecicttinQ the syicience Gyatlab!^ on re.covd, thfs lecwsd Sessions Judge has conyicted and sentenced the appe!!ant as aforewentioned. Tckin-9 i"to consideratio" the offence committed against duntb and deaf and woman of re+ard and undeye'oped brain who was below.the age of 16 yeqr-s, sentence piQorous jrBDr'isonwGnt for 10 vears is ?ieith€pexcessive nor* ur? lust. T do not find a"y substance ir> this appeal. 14. Consequently, +he appea! is !i dismissed. ie to be dismissed and it is hereby Sd/- T.P.Sharma Judge / r •^ •'/