HIGH COURT OF CHHATTISG^ARH AT BILASPUR Crlminal Appeal No. 85 of 2002 Narendra Lodhi Versus State of C.G. JUDGMENT ,.»^ POSTON II ' SEPTBMBBR 2007 _JL^ --i_..._.. l:".!ll HIGH COURT OF CHHATTISGARH AT BILASPU^ Cfiminal Appeal No. 85 of 2002 APPELLANT RESPONDENT Narendra Lodhi,S/o Siyaram, aged about 18 5'ears, R/o Ramnagar, P.S. Supela, Distt. Dru-g (CG) Versus State of C.G. through P.S. Supela, Distt. Dure. Present: • Shri Janak Ram Verma, counsel for the appeUant. Shri G.K. Beriwal, Addl. Public Prosecutor for the State/respondent. JITDGMENT (Delivered on // /09/2007) Dhirendra Mishra, J The appeUant has preferred this appeal agatnst tlie judgment of conviction and order of sentence dated 14.12.2001 passed in S.T.No. 13/01 whereby the leamed Sessions Judge, Durg has convicted the appellant iinder Section 342, 376(2) (i) and 376 read with Section 511 of the IPC and sentenced hun to undergo R.I. for stx months, R.L for ten years and pay a fine of Rs.1,000/-, tn defaiilt of payiuent of fine to further undergo R.I. for six monfhs. However, the trial Court has not sentenced fhe appeUant iinder Section 376/ 511 of Qie IPC. 2. Case of the prosecution in brief is fhat on 6.8.2000 complatnant Premkunwar and her husband Toran were present in their house, thetr daughter, aged about 7 l/i years, had gone to fhe house of neighbour Narendra Lodhi, fhe accused, for watchinj T.V. From fhere she retuned weeping and mformed fhat the appeUant after laying her on the ground has committed rape on her. The complatnant saw her private pails aad noticed that there vvas soine reddishness Uke blood. She also observed spots of sperm on front and rear of tfae prosecutrix. She along wifh her ' husband went to fhe house of accused Narendra and asked hiin about the incident, however, the accused did iiot give any r_ep]y. Thereafter, the complainanf and her husband along with fheir daughter went to lodge the report at Police Station Supela where report of Ex.P/2 was registered. The prosecutrbe was sent for medical exainination to Govt. Hospital, Durg and her medical report is Ex.P/12. The underwear of the accused and vaginal slides & frock of the prosecutrix were taken into possession under Ex.P/5 & P/6 respectively and the sacne were sent for chemical anafysis to Forensic Science Laborator^', Ralpur from where report Ex.P/CD-1 was received. The accused was also sent for medical examination and his medical report is Ex.P/11. After coinpletm^ investigation charge sheet was filed agam.st fhe accused/appellant. o. : •? ' During trial fhe prosecution examined 10 witnesses. Thereafter, statement of the accused was recorded iinder Section 313 of fhe Cr.P.C. in which he denied the circuinstances appearing against him in ftie prosecution case and pleaded innocence and false implication on the ground of previous quarrel. Hovvever, leamed trial Court after hearmg counsel for the respective parties, convicted and sentenced tfae accused/appeliant as mentioned above. 4. Leamed counsel for the appellant argued ftiat testimony of the prosecutrix is not corroborated by the medical evidence. There is no evidence of penetration as hymeh of fhe prosecutrix was intact according to medical report ofEx.P/12 and statement ofDr. (Smt.) P. Dani (P-10) who has examined the prosecutrix. 5. Reliance is placed on the judgment of Hon'ble Supreme Court in the matter of Aman__Kumar and another Vs. State of Hsuryana reported tn (2004) 4SCC 379. 6. On the oftier hand, leamed counsel for (he State/respondent supportedtmpi^nedjudgmentofthetrialCoi.trt. | 7. I have heard leamed counsel for both the parties and penised thfi material ayailable on record mch-Kling thfiiimpi^ned judgment of trial Court. -^" \ 8. The trial Court has assessed aged of fhe prosecutaTX as 6-7 years. She has been examtned as prosecution witaiess No. 1 without admmistering oafh. She has stated that the accused took her to his Mami's house, his younger brother was watchin^ picture in his house. Narendra took out his penis aad inserted in her vagina, it was painful and it became red. He ejaculated-sonie white Quid and fhereafter, left her. He was again calling her while she was retuming. She retiiraed home weeping and narrated fhe incident to her mother. Her father took her to the house of Narendra and thereafter, she went to police station and froiu there she was sent for medical.exammation. In her CToss-examination she has denied fhe su^estion that she was depostng as per tutoring bv her mother and further denied fhat Narendra did not do anything wifh her. 9. PW-2 Toranlal Sahu, father of tfae prosecutrix, has also stated tfaat on tfae date of incident at about 1.00 p.m. her daughter cam.e to tfae house weeping and on enquiry she told fhat Narendra made her lle and was dotng something. When he saw her private part, he found it was reddish. He went to the house of Narendra and asked htm. why he did so, however, Narendra did not come out of the house and fhereafter, he along wifh his wife and daughter went to police station to lodge the report. Her wtfe lodged fhe report. PW-4 Premkunwar Bai, Diofher of the prosecutrix, has also stated that fhe prosecutrix retumed hpm.e weeping and on being asked she disclosed tfaat Narendra has done wrong work with her. Thereafter, she observed her private part and foiind that it had tiimed red and soiae white spots were present on her clotties. They went to the house of Narendra and asked htm. about the incident. However, he denied fhe allegations. Subsequently, a report was lodged in fhe police station. The frock .^of the prosecutotx was taken into possession under Ex.P/1. The report was lodged on fhe basis of uiformation given by her daiaghter. She has denied the su^estion that they had brought Che daughter to court after tutoring her. ^/--"' 10. PW-9 Ajit Yadav, Police Inspector, has proved fhe First Information Report of Ex.P/2. PW-10 Dr. (Smt.j P. Dani, has examuied fhe prosecutrix and proved her medico legal report of Ex.P/12. She has also proved fhe report ofEx.P/13 given after exam.tning frock of fhe prosecutrix. She answered fhe queries of Ex.P/3 sent by the police vide her report of Ex.P/ 14. This mtness has stated fhat on examtnation she did not notice any extemal injiiry over person ofthe prosecutrix. She also did not notice any injur^' near private part. The hyiaen of the prosecutnx was intact and tsvo sBdes were prepared. On fhe frock brought 'by the constable she had spotted two white spots, on whlch she advised chemical examination of fhe spots on the frock. In reply to query of Ex.P/3, she had given her report of Ex.P/14. On the question by fhe Court, fhis witness has stated that slight reddishness was present over vagina and reddishness could be caused as a result of insertion or attempt to insert erected penis or because of rubbing. In cross-exammation she has stated that the prosecutrix was not allowtng her to touch her vagina as it ,was painlul, reddishness over fhe vagina was slightly more than fhe normal conrse. If forcible intercourse is done in that case tnjiu-y' could be caused in the vagma. However, she has admitted fhat she has not mentioned in her report of Ex.P/12 regarding reddishness present in the vaginal part. She did not niention it because it was very less aad she has derued fhat stnce fhere was no reddishness, she dld not mention the same in her report. 11. Leamed counsel for the appeUant has vehemently argued fhat the complainant has stated ia her depositioii that report was in fact recorded on the basis of information given by the prosecutrix though from perusal of fhe FIR, which is shown to be lodged by fhe complatnant i.e. mofher of tfae prosecutrix, it is submitted that fhe report itsetf is doubtful. There is no force in £heabove submission ofleamed counsel for fhe appellant as from the evldence ayailable on record it is evident that fhe prosecutrix accomganied her mofher, coniplainant, and fafher to the police station and fhere report was lodged in her presence on fhe i 1. ii.itU! information given by mofher of the prosecutrix and the same bears fhi-unb unpression of the complainant. It is but natural fhat when the prosecutnx was herself present at fhe time of lodgin^ report, some questions must have been put to her by fhe police and after satisfying with the answers given by her, fhe report would have been registered on the basis of information'given by tfae complainant and it cannot be teraied to be doubtful, particularly when fhe prosecutrix is a girl of about 7 years. 12^. The prosecutrix has clearly s&ted that she had gone to watch picture when fhe accused took her to his Mami's residence, where yoiinger brofher of the accused was ivatching picture. Narendra committed rape on her and after some white Huid was discharged, he left her. There is omission in her disay statement regardtng accused Narendra taking her to hls Mami's house and ;agging her mouth with cloths. However, she has categoricaUy stated about the offence. Her testiinony is corroborated by the statement ofher mofher and father as also by fhe statement ofDr. (Sint.) P.Dani (F'W-10) v>Tho examined her on fhe foUowtng day of tiie incident. The doctor has stated in her report that hym.cn of the prosecutrix was tntact and fhere was no extenial injiuy on her person or private part. However, she has further admitted fhat there was reddishness over her vagtna, which could be caused by the penetration of erected penis or whUe attempting penetration. It could also be caused due to rubbing. She has further stated that fhe prosecutrix was not allowing her to touch her vagina as it was painful. Though there is omission tn the report of Ex.P/12 regarding presence of reddishness over vagina, however, the doctor in her Coiirt statement has explained the same that she did not describe reddishness over vagma of the prosecutrix in her report as it was too less, which she did not consider necessar\' to raention. Mother of fhe prosecutrix had observed private part of fhe prosecutrix mimediately after the incident and she has stated tn her deposition ihat it was reddish at that tune. The prosecutrix faas herself stated fhat fhe appellaat inserted his penis mto her vagtna and she felt acute pain. Even father of tfae prosecutrix has also stated that mimediately after fhe incident he checked her private part and found reddishness fhere. The tncident is of 6U1 August 2000 whereas fhe prosecutrix was examined on the foUowing day, thus if we evaluate the statements of fhe prosecutrix, her parents and also fhe statement of lady doctor who examined fhe prosecutrix, we observe fhat version of the prosecutrlx that fhe accused penetrated his penis uito her vagina, is duly corroborated by the statements of her parents as also Dr. (Smt.) Dani. 13. In fhe matter of Aman Kumar__and another (supral it has been held that for the offence of rape proof of penetration is a sine quo non. However, it has been further held fhat coinplete penetration with emission of sem.cn and rupture of hymen is not necessaiy and a slight penetration in vulva with or wifhout violence is sufficient and depfh of penetration has been held to be unmaterial. 14. In fhe instant case also, there is evidence ofthe prosecutrix that the appeUant inserted his penis into her vagina, as a result of which she felt patn, when her vagina was exainuied by her parents they found reddishness was present fhere and even on fhe second day when she was examined by the doctor slight reddishness was present on her vagina and she was not allowiiig the doctor to touch the vagina. Apart from. the above evidence, as per F.S.L. report spots of semen and spermatozoa were found over the vagmal slides of fhe prosecuta'ix and underwear of the accused. 15. On fhe basis of aforesaid analysis, ttus Court is of the considered opinion that fhere is rio Ulegality or mfirmity in the impugned judgment of trial Court, which warrants interference. 16. In the result, the appeal being devoid of substance is B.able to be dismissed and is accordtngly, disiaissed. Sd/- f Dhu-endra Mishra^ ' -!, • •', Judge '^ J