Sim‘ia E’Sawh 1N THE HIGH COURT OF CHHA'ITISGARH AT BILASPUR C.G. CRIMINAL APPEAL N02? 7 OF 2005 /§éUda Ram @ Dhajiram, S/o Ramadhin Banjare, aged about 45 years, Caste-Satnami, R/o Village Kodwa, Police. Station Palari, District Raipur (C.G.). AppELLANT , (IN JAIL) a Ky? ‘ \ \Ou 1%? VIW' , J“ VERSUS RT F§PONDEN /St’éte of Chhattisgarh, Through: The Statioh House Officer, Police Station Palari, District Raipur (C.G.). CRIMINAL APPEAL UNDER SECTION, 374 (2) OF THE CODE OF CRIMINAL PROCEDUR§, 1973 ' ”E; @q . A-F-%. HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice ritinker Diwaker) Criminal Appeal No. 277 of 2005 APPELLANT Bauda Ram alias Dhajiram. VERSUS RESPONDENT State of Chhattisgarh. Postfor pronouncementofjudgmenton:3.11.2009. r v Sill- f M ‘i W .‘.......?ritinker Judge Diwa‘fr 20. 1 1 .2009 P ~ N i i HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 277 of 2005 Bauda Ram alias Dhajiram. APPELLANT VERSUS RESPONDENT State of Chhattisgarh. Shri P.P. Sahu counsel for the appellant. Shri Pravin Das GA for the respondent/State.- CRlMlNAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (g 41.2009) This appeal is directed against judgmentdated 24.1.2005 passed by the Additional Sessio Judge, Baloda Bazar, District Raipur, in Sessions Trial No. 33000 convicting the appellant for the offnes punishable under Sectios 376 and 450 of the Indian Penal Code ad sentencing him to undergo rigorus imprisonment for ten years and pay fine of Rs. 2,000 u/s 376 (1) and to undergo rigorous imprisonmen for five years an pay fine of‘Rs. 1,000 u/s 450 IPC plus default stipulations. 2. Facts of the case in brief'are that FIR (Ex. P-1) was lodged by the prosecutrix ged about 15 years (PW—1) on 22.7.2004 alleging that on 20.7.2004 at aout 12 hours when she was all alone in her house, accused/appellant made an entry thereto, caught hold of her l hand, threw her on the ground and after removing her cloths inserted his private part into her private part. While committing the sexual intercourse, the accused/appellant had gagged her mouth due to which she was not able to breathe. Meanwhile, maternal grand mother of the prosecutrix came there and on seeing her, the accused/appellant ran away. It 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 13 witnesses. Statement of the ns /24 ec n n o t d a b accused/appeuant was aiso recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offences mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. ~/ 6. Counsel for the appellant submits that there is two days’ delay in lodging the FIR and the prosecution has failed to explain the same satisfactorily. He further submits that the age of the prosecutrix has not been proved by the prosecution in accordance with law as she was not subjected to ossification test. According to him, on the basis of Kotwari Register which was seized under (Ex. P-4), the date of birth of the prosecutrix is 5.2.1989 and thus on the date of incident #24 she was aged 15 years, 5 months and 15 days. He submits that the said entry in the Kotwari Register cannot be accepted as a gospel 2 truth. Counsel for the appellant further submits that even the medical 1 report does not support the case of the prosecution as according to L Dr. Anita Verma (PW-1 3) who medically examined the prosecutrix, there was no injury on the person of the prosecutrix. This witness has opined in her evidence that the prosecutrix was habitual to sexual intercourse and therefore no definite opinion of recent intercourse with her can be given. Lastly. counsel for the appellant submits that looking to the allegations made against the appellant 1 and the evidence adduced by the prosecution, prima facie it appears , to be a case of consent because unfortunately the appellant and the prosecutrix were seen in a comprising position by Rambai (PW-2) —- maternal grand mother of the prosecutrix and that is why the report has been lodged. 7. On the other hand counsel for the respondent/State supports the impugned judgment and submits that apart from the statement of ,3” the prosecutrix, there is a statement of her maiernal grand mother Rambai (PW-2) in which she has stated that she had seen the appellant committing sexuai intercourse with the prosecutrix and on seeing her, the appeilant ran away. He submits that immediately after the incident Panchayat meeting of the village was convened where the appellant had admitted commission of rape on the prosecutrix. He submits that the age of the prosecutrix has been proved by the prosecution and as per the entry made in the Kotwari Register it is clear that on the date of incident she was below 16 years of age. He submits that even if the medical report does not support the case of the prosecution, the appellant is not entitled for the benefit of the same especially when there is an eyewitness to the incident. Counsel for the State further sLrbmits that the defence has not been able to substantiate as to why the appellant has been falsely implicated in the case. 8. From the FIR (Ex. P-1) it is clear that the prosecutrix has made specific allegations against the appellant for commission of rape. She has specifically stated that on 20.7.2004 at about 12 hours when she was all alone in her house, accused/appellant came there, caught hold of her hand, threw her on the ground and after gagging her mouth Committed sexual intercourse with her. She has further stated that due to her mouth being gagged, she could not raise any alarm. According to this witness during commission of crime her maternal grand mother Rambai (PW-2) came there and on seeing her, the accused/appellant left the spot. The prosecutrix has further stated that at the relevant time her mother was in some other village who was informed about the incident and then the Panchayat meeting was called in which accused/appellant admitted the commission of offence. However, when a decision was taken in the Panchayat to lodge the report, on 22.7.2004 the FIR was registered. Vaginal slides prepared during the course of investigation as well as the cloths of prosecutrix and that of the accused were sent for chemical examination to Forensic Science Laboratory vide Ex. P-16 and analysis report received there from is Ex. P-18. According to the t’\ t/‘ ‘a\A *Q’ report Ex. P—1 8, the presence of spermatozoa on the underWear of the prosecutrix was confrrmed. However, in the skirt of the prosecutrix, underwear of the accused and the vaginal slides prepared during the investigation, the spermatozoa was not present. Ghanaram (PW-9) 'the Kotwar of the village has stated in his evidence that as per the entry made in the Kotwari Register on the basis of the information provided by her maternal uncle, the date of birth of the prosecutrix is 5.2.1989. 9. Thus what can be summed up in this case is that the accused/appeiiant subjected the prosecutrix aged below 16 years to forcible sexual intercourse. Statement of the prosecutrix is supported by the maternal grand mother of the prosecutrix namely Rambai (PW-2) who has clearly stated in her evidence that when she came to the house, the appellant was committing sexual intercourse with the prosecutrix and on seeing her he ran away. Moreover, in the underwear of the prosecutrix presence of spermatozoa was confirmed. All these events are sufficient for this court to hold that the Court below has not committed any illegality in convicting the accused/appellant under section 376 (1) 'IPC. Accordingly, the conviction is maintained. 10. As regards sentence, counsel for the appellant placing reliance on the decision of the Supreme Court in the matter of Pramod Mahto and others v. State of Bihar reported in AIR 1989 SC 1475, submits that the sentence imposed on the appellant is severe and as no special circumstances have been pointed out on behalf of the State to award the maximum sentence, the sentence may be reduced to the period already undergone by the accused. In this case the appellant is in jail since 23.7.2004 and thus completed more than five years of jail sentence. After taking into consideration the facts and circumstances of the case and the aforesaid judicial pronouncement of the Apex Court, this Court is of the view that the ends of justice would be met if the appellant is sentenced to undergo Rl for seven years in stead of Rl for ten years. P\ ‘m\ w\j. t Sdl‘ 1‘ -~~+_,‘1’ritink‘er Diwaker Judge ‘ \ax g2 -‘ .