.'<RS(E IN -BiB HISH GOURT Os- MAOHYA. PRABEai A'F JABXLPUR »./91 Crtminal Appeai No'; .l."./9 ^ •-. ?! ' ^ Appellaa-fc :—Banshiclhar'son of SadhramSiiaar 'j , : ^gefl afeout 18; years^ —r.esident of Saagitacai Bistt. RaigaEh /' Iir>:~:T<i8*i •^h ' ' '~~ '-Versus .-. : : :. -• •••^;' Responelent s- State pf Maelhya pradesh , 'Ehrough. , P.S.- Raigarh ftPPEAL _ UNBER_ SECTION __ _374t2) CSIMISBL PROCfftHRE CGBEs ^ . [. :; !'a; tiiif m ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Nlr. Justice Pritinker Diwaker) Criminal Appeal No. 1018 of 1991 APPELLANT RESPONDENT VERSUS Banshidhar S/o Sadhramsidar. State of Madhya Pradesh Shri M.K. Sinha, counsel for appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGhflENT (22.02.2010) This appeal is directed against the judgment dated 22.10.1991 passed byAdditional Sessions Judge, Raigarh, in Sessions Trial No. 185/1990 convicting the accused/appellant for the offences punishable under Sections 376 and 342 IPCand sentencing him to undergo rigorous imprisonment for seven years and two months on each count plus fine of Rs. 500 u/s 376 IPC. 2. Case ofthe prosecution in briefis that on 6.9.1990 at about 1 p.m. FIR (Ex.P-1) was lodged bythe prosecutrix (PW-1) aged about 13 years alleging that on 5.9.1990 at about 8.15 p.m. she atong with herfriends namely Kamla and Arti, had gone to the house of one Narayan for watching TV and when he had not permitted them to do se, they proceeded to the house of one Ram Chandra for that purpose. According to the prosecutrix, on the way to the house of Ram Chandra when she sat for urination, accused/appellant suddenly came there, gagged her mouth with his hands, took her to the verandah of one Kanhaiya on the point of knife, forcibly made her lie on the ground and commitfed sexual intercourse with her. The prosecutrix went on to state that when she tried to cry, accused/appellant putting her under fear did not let her do so. :According to her, she was detained by him ori the spot for the whole • 'sw&S^,^ •iP '^tt, 5ii:S;T!l- night and at the crack of the dawn, the accused/appellant had left towards the pond. 3. So as to hold the accused/appellant guilty, prosecution has examined 14 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe 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 as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment under challenge. 6. Counsel for the accused/appellant submits that the present appears to be a case of consent and may be on her being seen with the aocused/appellant by some of her relatives, a false report has been lodged by her. He submits that there is no concrete evidence on record to show that at the time of the offence, prosecutrix was minor. Hesubmits that in the absence of ossification test or any other authentic document showing her date of birth, it cannot be said that she was minor at the relevant time. He submits that even the medical report of the prosecutrix does not support the case of the prosecution and in these circumstances, conviction of the appellant under section 376 IPC is bad and liable to be set aside. 7. On the other hand counsel for the respondent/State supports the judgment'impugned and submits that there is enough material available on record for'—convicting and sentencing the accused/appellant as mentioned above. Referring to the statements of mother and father of the prosecutrix namely Rajkumari and Mohan Lal Patel (PW-4 and PW-6 respectively) State counsel argued that as-at the retevant time the prosecutrix was minor, cohsent if any, on her part, becomes immaterial. He submits that the report lodged by the prosecutrix being in quite promptitude does not ^<-;-.; ^^ri riL»irw"rfuu(*— fi..^Ste. 1 'tg-:,»8E'Si create any doubt in the story given by the prosecutrix to differ from the stand taken by the Court below. 8. Prosecutrix (PW-1) has stated in her evidence that a year prior to the date of incident she was a student of class VI. She has further stated that the accused/appellant was the resident of same village. According to her, on the date of incident at about 8 p.m. she along with her friends namely Kamla and Arti had gone to the house of one Narayan for watching TV and on his refusal to do so, they proceeded to the houseof one Ram Chandra for the same purpose. On the way thereto while she got up after urination, accused/appellant appeared over there suddenly, pressed her mouth and took her to the verandah of one Kanhaiya on the point of knife where he subjected her to forcible sexual intercourse. She has stated when at about 3-4 a.m. she was going to her house, on the way she had met her uncle and after reaching there she narrated the entire story fo her parents and brother and then the report Ex. P-1 was lodged. In her cross examination also, this witness has given the detailed account of the incident and the manner in which she was ravished by the accused/appellant. Statement of this witness has been duly corroborated by mother of the prosecutrix namely Rajkumari (PW-4) stating that her elder daughter at the relevant time was aged about 19-20 years and the son younger to her was 16-17 years old. Regarding age of the prosecutrix, her mother Rajkumari (PW-4) has stated that she was 13 years of age at the relevant time. This witness has stated that at about 4 a.m. the prosecutrix was brought by her brother in law jand on being asked she had {61d her that the accused/appellant had forcibly taken her to the verandah of one Kanhaiya and exploited her sexually. In the cross examination, she has stated that she was not aware of the date of birth of the prosecutrix and had disclosed the same only on the basis of guess work. This witness has however categorically denied thatat the relevant time the prosecutrix was aged about 17- 18 years. Shankarlal Patel (PW-5) has stated in his evidence that on 5.9.1990 in, the night he was informed by his uncle that the prosecutrix was missing. This witness has further stated that when .i--.t;uA»uuaii •^^ &!ffi% "vj^' f! .-:i-1" -(/- on the next day at about 5 a.m. he went to the house of the prosecutrix who by then had come back to her house and on being asked shenarrated the entire story as to how she was subjected to rape by the accused/appellant. Father of the prosecutrix namely Mohan Lal Patel (PW-6) supporting the statement of the prosecutrix (PW-1), his wife Raj Kumari (PW-4) and Shankar Lal Patel (PW-5) has stated that his daughter was-missing since the night of 5.9.1990 and she came back to his house in the morning and narrated the entire incident to him. According this witness, at the relevant time prosecutrix was aged about 13 years. Ram Chandra Patel (PW-7) and Nakul Patel (PW-8) have also supported the case of the prosecution. Lady constable Laxmi Bharadwaj (PW-10) who took the prosecutrix for medical examination, S.L. Kanwar (PW-11) - the Town Inspector, who registered the FIR and sent the prosecutrix for medical examination along with the lady constable have also supported the case of the prosecution. Dr. Madhu Dubey (PW-12) who had medically examined the prosecutrix has stated that no external injury wasthere on the body of the prosecutrix, her secondary sexual characteristics were not fully developed, her vagina easily entered two fingers and hymen was old ruptured. She has stated that at the time of examination the prosecutrix must have been aged about 13-14 years and that no definite opinion regarding rape could be given. Though the statement of the prosecutrix has not been supported by her friends Arti (PW-2) and Kamla (PW-3) as they have turned hostile, nothing could be brought on record by the de^ence as to why he has been falsely implicated in the case. Moreover, statement of the prosecutrix that she was subjected to forcible seyu/at intercourse by the accused/appellant, even if taken independently, inspires full-confidence of this Court and minor contradictions and omissions therein would not be fatal to the case ofthe prosecution. 9. As regards the age of the prosecutrix, though there is no documentary evidence available on record to show that the prosecutrix was minor on the date of incident, statement of her mother and father namely Rajkumari and Mohan Lal Patel (PW-4 —-s~— and PW-6 respectively) makes it clear that on the date of incident she was below 16 years of age. Most important evidence regarding age of the prosecutrix in this case is the evidence of Dr. Madhu Dubey (PW-12) who had medically examined the prosecutrix as she has categorically stated'that her secondary sexual characteristics were not fully developed and that at the time of her examination she must have been aged about 13-14 years. Tme it is that not even the ossification test was conducted to ascertain the age of the prosecutrix, there is no occasion for this Court to disbelieve the statement of the prosecutrix, her parents and the doctor who had medically examined her. Moreover, even if it is assumed that the prosecutrix was above 16 years of age on the date of incident but once her statement is found to be trustworthy and clearly discloses the manner in which she was ravished on the point of knife, it can safely be held that there is no illegality and infirmity in the judgment impugned convicting and sentencing the accused/appellant as described above. 10. The aforesaid analytical discussion made in the light of the evidence led bythe prosecution leads this Court to hold that the trial Court has based its findings of conviction on due appreciation of the material available on record and that being so the judgment impugned would not be prone to any interference therewith. 11. In the result, this Court finds nothing to be in disagreement with the view taken by the Court below convicting and sentencing the accused/appellant as above and in this view of the matter the a'ppeal is held to have no force in it. Dismissal of the appeal being the only fate/is recorded so. 12. Appeal is thus dismissgd. Stf' Pritinker Biwaker Jadge