z '"i.lv- HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.882 of 2003 APPELLANT ^v' x' ..-J RBSPONDBNT Vijendra Lal son of Guja Shaakar Rajwai', aged 24 years, resident of Vmage Barra, Out Post Korbi, P.S. Pasaa, Distt. Korba(C.G.) Versus State of Chhattisgarh Through P.S. Pasaii, Distt. Korba (C.G.) (Appeal uader Sectioa 374 (21 of Cr.P.C.I Appearaace: Shri Suryakaiit Mishra, counsel for fhe appellaat. Shri U.N.S. Deo, Govt. Advocate/ Additional PubUc Prosecutor for the State. ORAL JUDGMBNT (21.05.2007) SUNIL KUMAR SINHA, J. Heard, (1) This appeal is directed agaiast tlie judgraent ofconviction aad order <?f sentences dated 24.2.2003, passed HI Sessions Trial No.474/2001 by fhe Sessions Judge, BUaspiir, (C.G.), whereby tlie said Court after holdiag fhe appeUaat guUty of the oflTence punishable under Sections 450 & 376 (1) ofI.P.C., sentenced him to midergo R.I. for 5 years and to pay a fme of Rs,300/-, ia default ofpayment of fine, to further undergo SJ, for one monfh; aiid RJ. for 7 years aad to pay a fine ofRs.300/-, iti default of payment of fine/ to fiirtlier undergo SJ. for oue moufh with a furtiier direction to run the sentences concurrentiy. (2| The case of flie prosecution is fhat fhe prosecutiix-Ku. Sonaiaani is aged about 15 years. She aad her younger sister namely Lalmani (P.W,-2) along wifh her grand-father, who is bliad aad deaf were present m their house on 8.6.2001. The ^- \- •^^. Gr.A.no, 882/2003 •^ -^' 'G, '•-. xuother aad fatiier of fhe prosecutorix had gone to Sarguja for purchasiag some cattle. At about 8-9 p.m., the appellaat came to their house aad sat on the cot which was there ia fhe coiirt- yard. Thereafter he asked for Gudafc/zu aiid water. When tlie prosecutrix went iaside tlie rooixi for brmgrag Gudakhu aad water, he also foUowed her and in. tlie rooin, he Caught hold of her aad threw her of tlie ground, thereafter put a piece of clotihL in her inoufh aad cosimiitted forcefiil sexual ititercourse agamst her. Furfher case of the prosecution is tliat while the appeUaiit was committmg sexual iatercourse, the sister of the prosecutrix- Lahnani (P.W.-2) entered iato fhe rooin aiid she tt-ied to save her sister, on which, tlie appellaiit tlireatened her aiid she could do nothin.g, The prosecutrix becaiae unconscious aiid the appeUaat went away from the place of occurrence. Though tlie mcident has occurred on 08.06.2001 but the F.I.R. was lodged on 18.6.2001 vide Ex.-P/1. The explanation for tiie delay is tliat the inofher aad fatlier were not iii tiie house as they had gone to Sax'guja, When tliey caiae back alter 3-4 days, the prosecutrix aiid her sister, out of shy aad feai', did not disclose fhe story to theni but iiltmiately after inquir}r froBi fheir end, fhe stoiy was disclosed aad fhen only, the report was lodged. After fhe report, fhe prosecutrix was sent for inedical exaaiination under requisition Ex.-P/7 on fhe saine day aad was examiaed by Dr, ,N,D. Ra22i (P.W,-6), who prepared her report Ex,-P/8. Accordiag to fhe said report, tiiere were no extemal iajuries on the person ofthe prosecutrix, fhere was no nijury on fhe surface ofprivate part but mteraal examination of vagiaa was pamful, it was adinittmg one fiager with pams, hyinen was raptured, on tlie fourchetie sUght laceratiou was present. The doctor did not glve aiiy defirdte opiaion regardmg complete penetration. The accused was arrested. He was also sent for inedical exainiaation under memo Ex,-P/3. He was exammed by Dr. H,D. Dahire (P.W.-4), who found ftiat he was capable of perfonning sexual mtercourse. His report is Ex,-P/4. Site plaa of flie place of occiirrence was prepared under Ex.-P/lS by Patwan Santosh Kumar Sahu (P.W.-9) and after completion of usual r? l.-; ^. 'y. Cr.A.no. 882/2003 iavestigation, tlie charge-sheet was llled hi fhe Court of Judicial Magistrate, First Class, Katghora, who ia tura committed the case to the Coiirt of Sessions, Bilaspur, where fhe tnal was conducted aad the impugned judgBient of conviction and oxxler of sentence were passed. It is agaiast this judgmeut passed by fhe Sessions Court; tlie appellaiit has filed this appeal. (3) The conviction of the appeUaat is based upon the testimony of the prosecutrix (P.W.-l) aad her sister Lalaiaai (P.W.-2). (4) Leained counsel for tlie appellant argues tliat fhe prosecutrix aad her sister both do not appear to be rellable witaesses, tlierefore, tiie conviction is bad io. law. (5) On the other haiid, learaed counsel for tlie State opposes fhe arguments advaiiced by learaed counsel for tlie appeUaat and supports fhe judginent of conviction aiid order of sentences passed by tiie Sessions Court. (6) I have heard fhe leamed counsel for the parties at lengfh and have also perused the records of ftie Sessions Court. (7) Fii'st of all, the evidence regardixig age of fhe prosecutrix is to be seen. Accordmg to the prosecution itself, particularly tlie F.I.R., the prosecutrix had not studied in any educational institutiou; fherefore, no certificates etc., have been seized regardiag her age nor any birth certificate etc. has been seized for the piupose. However, accordiixg to the advice of fhe lady Doctor, tiie prosecutrix was sent for Ossification test, the report ofwhich shows fhat she was in betvveen 16-17 years ofage, but the said report has not been proved ia this case. Apart froin fhis^ there is evidence of father of fhe prosecutrix namely Karaiiisai (P.W.-3), who states that his daughfer was aged aboiit 15 years on tiie date of iacident. There is no cross-exainiiiation ou tlds point. Therefore, this part. of evidence of fhe father "^'' Cr.A.no. 882/2003 ^ fc reraams intact that fhe girl was aged about 15 years on fhe date ofiacident aiid his second daughter namely Lalmam (P.W.2) was younger to fhe prosecutrix aad ia this view offhe matter, it caa be held fhat she was aged aboiit 15 years, on fhe date of iacideut. (8) So far as evidence of fhe prosecutodx (P.W. 1) is concemed, she has deposed that on tlie date of iacident, she and her younger sister were present in tlxe house. At about 9 p.in., the appeUaat came to fheu' house aiid asked her for bxingiag Gudakhu and water, ou fhis, she went iaside the rooin aad fhis appeUant also foUowed her aad ia fhe rooin, he caught hold of her, tlirew her on fhe ground (floor) aad fhereafter, he put soisie clothes m her mouth and tiien he committed forcible sexual mtercourse agaiast her. On accomit of tiiis, she became unconscious. She also deposes that at the tiine of coniniission of ofience, her sister had entered into the room but fhe appeUaat had threatened her aad had also dashed agaiast her, on which, she went out froia the rooia. She has further deposed fh.at she did not disclose this stoiy to aaybody else. After two days, her mother aad father had retunied back, she has not disclosed the story to thein also out of shy, but later on tlie story was told to thein aad a report vide Ex.P. 1 was lodged. The defence has not been able to destroy fhe testimony of tiiis witoaess so far as tliis fact offorcible sexiial intercourse by the appeUaiit is conceraed. (9) Lahnaai (P,W.2), who is aged about 11 years, deposed tliat on the date of mcident, her motiier aad father were not present m fhe house. At about 8-90' clock, the appellaat came to their house aiid asked her sister for bringuig water, When her sister went inside tfae rooin, he also went ia the rooia and took her sister iato his lap and thercafter he corainitted sexual mtercourse after throwiag her on fhe ground. In para 2, she deposed that when she reached fhere, the appeUaat said tliat he will beat her, dzie to which, she went out from fhe room. After some time, fhe appellaat also went out fi'om the room. She also V: Cr.A.ncL 882/2003 @? deposed vide para 3 that after 2-3 days ofthe date ofiacident, her mofher had come back. She has specifically mentioned vide para 3 that when she entered iato fhe roonx, she had seen fhat soiae clofhes were put ia the inouth of her sister at the tiiae of coniiiiission of sexual iatercourse. Maay questions have been put ia the cross examiaation to discredit the testiniony of tliis witaess, but not a siiigle question has beeu piit in regard to puttmg fhe clofh.es ia the inouth of fhe proseczitrix. Though, fhis witaess has admitted m para 7 fhat her graiid father was m the house on the said date, but she has furflier explajiied in. ffaiis very paragraph that fhe graiid fafher is bliadand deaf aiid she had not gone to hioi to narrate tiie story after tlie incident. (10) P.W.3 Karainsai, who is fhe father of fhe prosecutaribc has also stated that when he retumed back from Sax'guja, where he had gone to purchase catde, he saw fhat his daughter (prosecutdx) was not feeUng well, on which, he inquired as to what is the niatter? Fh'stiy she did not disclose anythiag to him, but later on, after 2-3 days, she disclosed the matter to tlie Bioflier aad then he could coine to know about tlie iacident, which has taken place ui their absence ia fhe house, There are soiiieoniissions in. his statenient, but those oniissions are only ia relation to the obsenrations ofillaess etc, oftihie daughter and not ia relation to disclosure offactum ofrape, (11) Leained counsel for the appeUaat submits tliat the evidence of tliese two witaesses especially P.W,1 aad P.W.2 appears to be unreUable aad there is also iaordmate delay m lodging fhe FJ.R. So far as reMabiMty of these witaesses is conceraed, tliere appears to be no reason to disbelieve them. Why tlie prosecutrix will raalce false statenient is a question to be considered. Though it has been tried by the defence to make out'a case that fhere were mimical relations between fhe family of the prosecutrix and the appeUant, but no substaatial base for believiag such story has been brought by them on record. Another cii'cumstaace which may come for consideration is that Cr.A.no. 882/2003 ^ 1. ..-'^' it inay have been a case of consent between prosecutorix and fhe appellaiit aiid the younger sister of tiie prosecutrix siace witaessed tlie incident, therefore, a false mipUcation is beio.g xaade, but this also does uot require consideration on account of age of tiie girl aad it does not appeai' to be con'ect because it clearly conies m the evidence of bofh the sisters fhat whUe coniBiittmg sexual ratercourse with the prosecutrix, tiie appellant put clothes in the Bioufh of the prosecutrix aiid tlie sister of fhe prosecutrix, who by chaiice, went iaside fhe rooin (place of occurrence), had seen fhat a piece ofcloth is put ia tlie 3iiouth ofthe prosecutilx. This xnles out a possibiHty tliat there were some other relations betaveen the proseciitnx aiid appellaat and by chance, on the said date, tlie mcident was noticed by flie girl. 12- About tlie delay, it comes ia tiie evidence oftih.e prosecutrix that the pai'ents were not iii the house ancl fhey retunied after 2-3 days arid even after fhen' retura, they (she or her sister) did not disclose the story to theia aiid when the pai'ents could obser^e tlie features ofthe prosecutrix as she was feeUng unweU aad it was repeatedly asked by tlie parents, fhen only, fhe story was disclosed after 2-3 days of their arrival to the house. This conduct of the prosecutrix aiid her sister, appears to be natural. It has corae in the evidence fhat fhe prosecutrix was recently maiTied bzit her Gowna was not performed. lu tliat situation, cex'tamly, she can retaia a reasouable apprehension ia fhe niiiid tliat tf she discloses Uiese facts to faoiily ixieinbers or to aay other member ia tlie village or Society, fhe message may go to tlie iii-laws place aiid she raay notbe admitted ui fliehusbaad^ house aad her entire Ufe niay be 1'uined, It appears tliat both tlie sisters were keepiag this appreheiision and tiiey had not disclosed tliis stoiy at fhe eai'Uest to tlie parents even after fheir arrival in fhe house, but the parents could notice tlie conduct of the prosecutidx as aii ill person, they asked about it aad theii only the uxatter was disclosed ajad tlie report was lodged. This conduct of the prosecutrix aiid also that of the younger sister of ^ ..' -&^ ...—...jt 'l. Cr.A.no. 882/2003 Rao tlie prosecutrix (P,W,2), appear to be quite natural aiid m such a situation, fhe delay m disclosmg tiie matter aiid m fartfier lodgiag fhe F.I.R. would not be treated as fatal to fhe prosecution aad fhat does not eflTect the testiiaony of these two witaesses. (13) In the opiaion of this Court, tih.e Court below has conimitted no lllegaMty while convicting tlie appeUaiit u/s 450 aiid 376 of I.P.C, on tlie basis of tliese two witaesses i.e., tlie prosecutodx (P.W,1) aad her sister Lalmani (P.W.2) who is aged about 11 years aad fhe conviction aiid sentences awarded to fhe appeUaiit on such evidence caanot be mterfered by this C/ourt The appeal has no merits. The same is^ Uable to be and is disniissed. I 1 Sunil Kumar Sinha i Judge |