-;;i-,-i.*sC ^ 'CF'OOOOOS8052 '^^ ""'!t^ IN 1H3 ICTGH CCURT 02- K&33H'ffi PrtAQiSSH AT JA3&LPUR CRIMINAL .AiPPS&L, VC'._^_!_Q_.0^ 1994 Is.pP.liLiLfiNT s (ZK JAIL) KIS l.lUi!,MT Girdhsri aiias NSiEendsa^ son of Shiv, Bged 17 years {accoEding to peosecufcion 19 yeers), residsnt o£ Jvxi, Police Station Chszama, 3ist3 'asstar (M«P»5 - 3tuc!ent« i VJ3RSUS t - State of I'ladhya PrBCiesn* CRXMINAL &ppiS2,L UNOSR SECTION 374 (2) , Q?. aiB 50U3 0, CSIMINSL .EKOCEDURg. BltlIII BH m'~!'m^ »u<Kj3~STa •w^v-sss.iWiSS's-avssS"' ., ;^'c^ "±.^ ^ip-'A;^. ^s .^Jts^^VaBnlll &) "^•-. <<% ^•asK,sys'M' @^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 818 of 1994 APPELLANT Girdhari alias Narendra VERSUS RESPONDENT State of Madhya Pradesh Shri Atul Pandey counsel for the appellant. Shri Ravindra Agrawal PL for respondenVState. CRIMINAL APPEAL UNDE:R SECTION 374 (2) OETHE_CODE OF CRIMINAL PROCEDURB J UDGMENT (14.07.2010) This appeal is directed against the judgment and order dated 01.08.1994 passed byAdditional Sessions Judge, Kanker, Dist. Bastar, in Sessions Trial No. 268/1992 convicting the accused/appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 2000, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case of the prosecution in brief is that on 06.05.1992 Flf^ (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 16 years alleging that on that day at about 6 p.m. when she was returning from Charama market, accused/appellant came from behind, caught hold of her, took her to the nearby field by lifting and then after removing her clothes committed forcible sexual intercourse with her. On 8.5.1992 she was sent for medical examination to Dr. (Smt.) Tara Agrawal who has given her report Ex. P/7-A 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 10 witnesses in support of its case. Staternent of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties thejrial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. :l;i<. I 1 ^itT??? ^ ...<'%3i>. '§ y^ K- -2-- 6 . Counsel for the accused/appellant submits that present appears to be a case of false implication and the version of the prosecutrix is wholly unreliable. According to him, ingredients of Section 376 IPC are not attracted to this case as according to her no penetration had taken place. He submits that the hymen of the prosecutrix was found intact and no external injury was fqund on her body. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that as the report was lodged very promptly, there appears to be no reason to disbelieve her statement. He submits that even if the hymen of the prosecutrix was found intact, it cannot besaid that she was not subjected to sexual intercourse by the accused/appellants. According to him, at the relevant time the prosecutrix was aged about 16 years and at such an age the hymen remains deep seated and therefore, rupture thereof is not always necessary. He submits that in cases where the hymen is deep seated, it may not rupture though there may be a penetration. In case of a forcible attempt to penetrate also, there are chances that the hymen of the victim may not rupture particularly when it is deep seated. The presence of redness and inflammation over the vagina is at least a sign that either a complete penetration has taken place or a partial penetration has taken place or a forcible attempt to penetrate was made against the victim. According to the State counsel Soman (PW-3) and Sudar Shyam (PW-4) have stated in their statements that after hearing screams of the prosecutrix when they had gone to the spot, accused/appellant was assaulting her. 8. Prosecutrix (PVV-1) aged about 16 years at the relevant time has stated that on the date of incident at about 6 p.m. when she was returning from Charama market, near village Amri the accused/appellant came there from behind all of a sudden, embraced her and took her to a nearby field by lifting, threw her on the ground and after removing her sari and petticoat and his clothes as well, committed forcible sexual intercourse with her. According to her, when she tried to raise cries, the accused/appellant gagged her mouth by one hand and pressed her breast by the other. She has stated that after hearing her cries, two people from village Amri namely Soman and Dhanraj came there and after seeing them the accused/appellant left the spot. She has stated that the entire incident was narrated to the aforesaid two persons and then she went to her house and ^ •^^ »-3- narrated the incident to her brother also who took her to the police station where the report was lodged by her. In cross examination also, this witness did not budge from her stand taken by her in the examination in chief. Punitram (PW-2) - the brother of the prosecutrix has stated that on the date of incident the prosecutrix had narrated the entire incident to him and then the report was lodged by her. Soman (PW-3) and Sunder Shyam (PW-4) have stated that on the date of incident when they were going to take bath, after hearing the cries of the prosecutrix emanating from near the bushes they went towards the spot and saw the accused/appellant assaulting the prosecutrix and on seeing them he fled away. According to these witnesses, the prosecutrix had narrated the incident of rape to them. Dr. R.C. Agrawal (PW-7) who had medically examined the accused/appellant has opined that he was capable of having sex. Timbak Ram Nayak (PW-8) who conducted the investigation has supported the case of the prosecution. Dr. (Smt.) Tara Agrawal (PW-10) who medically examined the prosecutrix has stated that though her hymen was intact, she had noticed redness and lacerated wound on both sides thereof. According to this witness, duration ofthe injuries was 12 to 24 hours. This witness has stated that the prosecutrix was complaining pain on her private part. She hasalso opined that an attempt to rape was made on the prosecutrix and the male organ was inserted in her private part but it could not rupture it completely and it is because of insertion of the male organ the prosecutrix sustained injury on her private part. 9. Having gone through the evidence of the prosecutrix (PW-1 ), Soman (PW-3) and Sunder Shyam (PW-4), it is apparent that the prosecutrix was subjected to forcible sexual intercourse by the accused/appellant. Speaking legally, in rape cases, complete penetration is not at all necessary and even the slightest penetration is sufficient to convict the accused under Section 376 IPC. More so, as at the relevant time the prosecutrix was aged about 16 years, the hymen at this age remains deep seated and therefore, its rupture is not always necessary. 10. In the result, the judgment impugned convicting and sentencing the accused/appellant as above appears to be well founded and does not ^ require any disturbance in this appeal. Accordingly, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. \]<-w 7/y{ -4- Appellant is already on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out the remaining part of the sentence imposed on him by the trial Court. --- - ~—— - Sd/- Pritinker Diwaker Judge 5