C-22 y sn^r^T hv\\^ ^n^r »»*ilcn-^f^a ~5^i ^HH^, ^Ti1<M<l<o, (^<rtl<l^< ^n^r TT5ra? *ll^cfll ^^j^—•———••—•———•••—*-^F^ 200 ^re^T' 3H^T'^iTW^f^T CRIMINAL APftEAL N0.800/2004 APPELLANT (In Jail) Tuman lal 20 years, Dabhara, Vs RESPONDENT (Chhanjsg^rh) State of Chhattisgarh, through; Station House Oflficer, Police Stotion, Dabhara, Distt. Janj^ir-Champa (Chhattisgarh) Present: Mr.V.C. Ottaiw/ar, Advocd-e fqr iine Mr. S. Yadav, &y. &overnment Ad ORAL (1st! Per bhirendra Mtshra. J: This criminal appeal is convictipn and order of sentencel learned Additional Sessions Judl whereby learned Additional Sess( uncler Sections 376 (1) & 323 of| R.I. for 7 years and to pay a fin|s of fine to undergo additional R.^ pespectively. ct>i^I<n<ili *iM<nT'^ fs<<i <Hn<$i< '^'^rf^pT^n^r ' &OSO/S/0 Maich Narayan, aged R/o Village- Thakur Pdli, P.S. Distt. Janjgir-Champa ap{?e{l<int. ocate for the respondent-State. UDeMENT Nov^mber, 2007) directed against the judgment of dated 18+h June, 2004 passed by the ?e, Sakti in Sessions Trial No.l43A)4 ons Judge has convid-ed the appellant rhe IPC and sentenced him to undergo of Rs.l,(XX)/-, in default of payment for 3 months and R.I. for 2 months -.' [C-22 3?1^T'^T f^iicb 3T1^T 5t»*iicti ^a ^Si ^HH^ ^<l<i<o, fa<rtl<iy ^n^r 'q=w ^w^ii g^qi^—••—•••——•—••••—•—•—^^ 200 fsR^ar^ fln^T ^1^T^<ffW ^rf^T ^ z^ The case of the prosecuti^ night of 29th & 30th January, 20<)4 gone to the hoJJer niill for paddy r|iilling sent her fort-her for b-inging ii(juor nearby field and committ'ed rape had also bitten her breasts ant returned to her home and narrat4 (PW-10), father-Roopsingh (PW-{ others. Thereafter the report of ot 9.00a.m. The prosecutrix w^s Community Health Centre, &abh4la (PW-4) examined her and gave th|e s^nt for medical examination wh<e|re and gave hisreport' of Ex.P-12. Aft'er investigcrtion charg^ received on transfer by the le4rned trial. Ouring trial, the prosecuticjn the statement of accused was wherein he denied the evidence al case and pleaded innocence & <t)i^{<rt<11i ^w^S Tt f^^ <R»t<^i< ^ 3Tf?<iH 3?I^T n, in brief/is that in the intervening around 12.00 the prosecutrix hadl along with her father. Accused and thereaft'er dragged her to with her. Whitecommitting rape, he j thereaft'er fled from there. She sd the incident to her mother Khojbai 0, Kotwapin Reshmi Bai (PW-9) and the incident was lodged on 30.1.2000 sent for medical examination to where C)r. (Smt.) Shashikala Miri e report- of Ex.P-7. Accused was also Dr. e.L Miri (PW-5) examined him sheet was filed and the case was Additional Sessions Judge for examined 12 witnesses. Thereafter, ricorded under Section 313 of Cr.P.C. 1/ailable against him in the prosecution implication. Learned trial court •flalse ^ -HC-22 311^[^T R'lJcb 31lt?T $t»*iicb^n ^ ^- '3's? ^IPTI^PT, ^'al<-i4i<o, i^^ii^y srri^ TR^ HI^ICII '^^^••••••••'—*•••'———•—•——<<^^ 200 'feR^T' sentenced the appellant as mentioi ct)i<it<n<i1i +iM<nf'? fs^l <Rq^i< '^3?ri^m3n^r ofter hearing learned counsel for the parl-ies has convicted and led above. Learned counsel for the ap^ellQnt submits that the incident is of 1.00 a.m. cmd it is stofted that the^ prosecutrix was dragged frwn holler mill to a difffrance of about ohe kplometer', as stated by Halka Patwari who has prepared the spot mc^p of Ex.P-3/ however, there is no correspondin9 injury of dragging ^ver the person of prosecutrix. It is the case ofthe prosecution thcrt"^he prosecutrix was drogged from the holler mill, however/no witness fr| and even the owner of the mill n^ ofthe prosecutrix/ has not been ^ 6m the holler miil has been examined xmely Kosariya, who is brother-in-law sxamined. The prosecutrix claims that accused had bitten on her brefrsts, however, the doctor, who has examined her/ has clearly stated ^hat injurjes present over the brea^t-s of the prosecutrix may not be cai^sed by biting. On the other hand, learned impugned judgment has argued tll thcrt she was raped by the appel \ ' .' • - place, her testimony is duty corr counsel for the State supporting the crt- the prosecutrix has clearly stort-ed lant after being dragged to a nearby oborated from the statement of her mother Khojbai, Roopsai and Kotw|arin Reshmi Bai, who have stated that the prosecutrix after return frc|m holler mill had narrcrted obout the incident to them. Her statemenfr is further corroborated from the -HC-22 ^TT^T^T ^ic^ sn^T 5h^ict) ^Ra <>"\ \. "5^'^TPT^R, ^iil^^Ko, I®(<ni^y 3?T^T 'SRW 'Wq^T'gTW^R'"**** *****'****"***'******'* ****^F[^ 20° ••{^[ST' 3TI^T'^TTW^'H ^^- promptly lodged FIR as olso Shashikala Miri (PW-4),who has I have heard learned couns impugned judgment os also the 01 chN(<n14it TnTT^ff ^ 'fe^t <p3i^i< '^3^W37T^T from the statement of Dr. (Smt.) noticed corresponding injuries/ four in numbers, over the breasts of th^ pro'secutrix. He further argued that the accused was also sent for e^amination to Dr. &.L. AAiri (PW-5) c^d on examincrt-ion he has found the ^megma missing from his male or9an. el for the parties. I have perused the \tQ\ and documentary evidence available on record. The conviction of the app€|llant is based on the statement of the prosecutrix 0>W-1), whose age h around 12-1.00 in the mid nigh^ milling paddy, the accused ser ^ been assessed by the trid court os 17 years 7 months. She has d^posed thot on the date of incident she had gone to the holler mill for her father for bringing liquor and thereafter gagged her mouth ar^d took her to nearby Boirbhata at a distcince of 10 meter dnd comrrlitted rape with her affer undressing her. He had also bitten her br^asts by his teeth. After the incident she rushed to her home and nar|rocted about the incident to Kotwarin, Kushal Singh, Purshottam and otl^ers. SimJlar is the stotement of Roop Singh (PW-2), father of the j;r4secutrix.who has stated that he had gone for milling in the holler mil on return he did not find his , accused sent him for b'inging liquor, daughter and after some time his =F -HC-22 3?n^T'^T f^ti^^n^T 5h+ii<=h ^Ra \-"- L-- <);\ ^ 'S^f ^INH^I, ^-al^^Ko, t®l<ni<lli< 3^i?T '^^K Nl*1<!fll 5b^I<^*' *'" " "W^ 20° t^RE^T* ^^ ^WIW ^(^a sr'- obi^(<n<i1i *iM<rff'9 fs<<l <Rn^i< '^3?rf^TH3TT^[ daughter came weeping and narra|-ed about the incident. Reshmi Bd (PW-9) <& Khojbai Maitri (PW-10) nother ofthe prosecutrix, have also corroborated the version of the pr^osecutrix. It is sett'led law thcrt in a r|ape case, conviction can be based on the uncorroborated testimony pf ^he prosecutrix, as the prosecutrix is not an accomplice in the crime c| offence and as such, she stands witness and corrobopQtion of her law. In the light of the Gfoove considered whd-her the absence f rape but she is the victim of an ^l- higher pedestal than the iryured ^totement is not the requirement of |;ettled principle of \cw, it is to be of injuries over the person of the prosecutrix would render her sta'(ernent unreliable and untrustworthy. It/is not in dispute that the prose years 7 months, whereas, the a^ defenGe taken by the accused by prosecutrix used to Joke with the frequent visitor of her hoyse an The above su^estion hcs been d^ admitted thcrt because Kosariya ^utrix is a 91?! of tender age about 17 |e of the accused is 20 years. The vay of cross-examination is that the wner of holler niill Kosoriya, who was J they were in love with each other. snied by the prosecutrix, though she s her brother-in-law in relation, he used to Joke with her. It is un^eljevabje that simply because the appetlant saw the prosecutrix andjsaid Koscriya talkin9 to each other, i -HC-22 3n^?T'^T f<Tiicb ^^ ^+ii^ <if^a ^ Y-^-, Roshan/- "3^ r^!4ld^l, ^Tl1<l^<o, fa<yll<iy 3H^T TI^? *<IH<!>11 ^^^'••"•'•'•"••••'•'••'•••"••'•'••••"^^ 200 •fg^T' II^T ^fl^r ^<rpa< ^i^a ^lf^"i -€4 the oppellflmt has been impiicated and mere absence of injuries on not make her statement unreliabJel In the instant case the verj corroborated from the statemerlt Reshmi Bai (PW-9) <& Roop Singh| from the promptly lodged FER Shashikala Miri (PW-4), who of the pr&^cutrix arid the discarded only on the ground doctor (PW-4) has stated that tee1+i bite. From perusal of the| evident 1+iat the prosecutrix w<xs Absence of smegma over the corrobordtes the case of In the result. 1+ie appeal be dismissed and the same is the pros^cution <=M<4l<n<I1i ^w^S ^ k^\ <P»i«^i< ^^^msn^r a false case cnd 1+»attoo of a rope fhe person of the prosecutrix wouJd ^ion of the prosecutrix wcis not only of her mother Khojbai (PW-10), |(PW-2) but it is also corroborated os also statement of Dr. (Smt.) foyr abrasions on the breasts of 1+ie proseajtrix cannot be in Para 17 of depositjon 1+ie lady injuries couldnot be caused by |statement of tady doctor it is also accustomed to sexual intercourse. g^nital orgon of 1+ie appellant also hasflbticed testi^nony thdt -The r*>t bepng devoid of subst<xnce deserves to herefcjy dismissed. Sd/- Dhirendra Mishra Judge ^ F^