APPELLANT: RESPONDENT: HIGH GOUm- OF CHHATTISGARM, BILASPUR CriminalAppeal No.508ef2006 Mjthu Khadiyaalias Muriidhar Bariha Versi State ofChhatfegarh ^.-. :l • Post for Dronouncement crf iudnment on 16 Oc:tobgs^3SB& SdA T.RSharma Judge APPELLANT: On Jai!) RESPONDENT: H16HCOURT OF CHHATTISGARH. BILASPUR Criminal Appeat No.SOS of2006 Mithu Khadiya alias Murlidhar Bariha, S/o Pyardiand Bariha, aged abouf 30 years, Caste Khadiya, R/o Telijor, Poltee Station Talsara, Distt. Sundergarh (Orissa) Vereus State of ChhaUsgarh, tiwough tiie Polfce Stetion Taptera, Dsstt. Jashpur. i>-- 11, {Cnminalappeal under Section 374 (2) ofttie Code (rf Criminal Procedure, 1973} B'es&nt: Mr. B.P. Sharma. counsel for tfft appettant. Mr. Ravindra ^rawat, Panel Lawyer for the Stat^respondent. Sinate Bench-.Hon'btoMr. T.P. Shanna. J JUDGMENT (Delivered on 15!h October, 2008) 1. By this appeat, the appellant has chaltonged tegality & propriety of the judgment of convictten and order of sentence dated 28-1-2(X36 passed by the Additioraal Sessions Judge, Jashpur in Se^ions Trial No.1040004 whereby leamed Additionat Sessions Judge after hokling ttie swellant guiity fbr commission of rape, convicted him under Sectlon 376 (1)of the I.P.C. and sentenced to undergo R.l. for seven years & pay a fine ofRs.l.OW-, in d^utt ofpaymentoffine to further undergo R.l. for one montti. <• . -f 2. Conviction & .sentence ofthe appeltant is challenged on the groundttiatwithout any prima fecie evidence of identificatton to connect the appeltant wth the crime in question, the Additional Sessions Jud^ has wnvietsed and sentenced the appeHant as irforementioned. 3. Case of prwecuUon, in brief, is that the prosecu&ix pW-1) whewre gged about 13 years on the date of inddent i.e. 10-8-2004, was present near Eeb river at vitlage Laval?eraatabout 5 p.m., the accuse<yappeltant was flshing, the accused came to the prosecutrix (F'W-1) and caugtrt htritf of her hantte,when the proseeutrix tried toshout, the aceused pressed her necfc and threatoned to kill. Thereafter, the accused tay dowr»the prosecutrbc on the land. opened hw undergarment and committed sexual intereeurse wth her. Wrten fte - prosecutrtx shouted, her brofrier Sunil came and themafter, Uieaccusi,ed fted away from the spot. The presecuWx told fte incwientto her mrther & other ^'.. 2 relatives and hxiged the F.I.R. on2 day i.e. 11-8-2004 vWe Ex.P-1. She was sent for medtcal examinatton vide Ex.P-16. She was examined by Dr. B.P. Sushma Ekka (PW-10) videEx.P-9. 4. The doctor noticed toflowing injuriesoverthe body ofthe prosea.rtrbc - (i) multiple scratches over both sldes of cheek, abcnre upper llp, left skte of breast&thighf fii) swelting over left hafd, neck & nipple of bfrth the breasts; (ili) swetling & bruise over sacrat, scapular & buttocte regton and inner part <rfbolftthtghs. On her internal examination, hynpen was found n^tured, »welling,congestion & redness was present; three smatl tacefations were found in raginat wall, Uiey bleed on touch. Auxiliary & pubte hairsand hreastswwr®underdevetopment. Slides of vaglnat smear were prepared, packed and seated for chemcal analyste. tt was ateo opioed that the prosecutrtx was subjected to sexual intercouree. 5 Underwear of the prosecufrix was seized vide Ex.P-3 and mark sheet of the prosecuttix was seized vide Ex.P-3A. Spot map was prepamd by ttie tnvestigating Officer vkle Ex.P-4. Patwariprepared ttie spot map vide Ex.P-6. Sealed under wear of the accused was vide Ex.P-7. Three seated packets were seized vjde Ex.P-8. The accused was medically examhwd vkie Ex.P-12 and he was found capabte ofeommitting sexuat irrtercourse. He was arrested vide Ex.P-15. His under wear was seized and sentaloi^ vrith vaginalslides & underwear of the prosecutrix for ehemical anajysis to ttie Forensie Science Laboratory, Raipur and presenee of human sperm waa confirmed on the undergarment ofthe prosecutrix& vaginatslides. 6. After recording ttie statemerrts under SecSon 161 otthe Cr.P.C. anct compteting the Investigation, cha^e sheet was flted in the Court of Chief Judicial Magistrate, Jashpur, who in turn committed the case tothe Court of Sesaons Judge.Jashpur from where leamed Addltional S^sions Juc^e, Jashpur, receweri Uie case on transfer for triat. 7. In order to prove the guilt of the accused, Iha prosecirtion has exstained sis many as 14 vwtnesses. Statement of the accused was recorded undw SeeBon 313 of the Cr.P.C. in which he denied ttie clrcumstances appeanng again^ him, pleaded innocence andfalse imptication. 8. Aflsr affording theopportunfty of hearing to betti the parties, toa^ned trial Court has convicted & sentencedthe appetlant in theatoresaid manneij. \1SESVSa}WSKS F'- 9. I have heard tearned counsel forfteparfesand perused the record of the trial Court asalsothe Impugned judgment lO.Learned counset for theappellant submits ttiat the appellantwasnot knOTm to the prosecutrlx or her relatives, but she has lod^d ttie named F.I.R. The appetlant is resident of Telijor, Police Station TateE a, Distt. Sundeigarti (Orissa) having no relationwith theprosecutrixoranymembsrofthevillagetrf the prosecutrix. The prose^utrix has spectflcally slated hw evi<tonce paras 8 & 9that theappellant was not known to her and she has ^ated her name on the basis ofthe information ghren by the Police, she has decided whatto stete againsl the appellant for the cpmpensation awardabte frora the Government;? Shanti Tirkey (PW-2), mother ^f the prweeutrix, has atso adm'itted Uiat ttt^ have decided to state s^alnst the appeltant with a view to ccffvict hira. Amite Tirkey (PW-7), sister ofthe prosecutrix, has also admitted that her mother has told her that the Govemment used to award compensation inthe cases of present nature, therefore, they have decMed tocleposeagaii'Bttheappellant with a view to convict him. Leamed counsel foTtheappellantfurther submte that in absence of identfficaUQn these witnesses have falsely implicatsd the appetlant w'rth a view to impltcate a person who is notresidentofthewllageof the proswufrix and with intent to re<»ive^et compensatiwi from the Govemment 11.0n the other hand, learned eounsel appeanng for ttie State/respondent has supported the judgment and submitted ttiat the prosecuUon has proved the case against the appeltant. There is disCTepancy in the stettements <rf Vne witnesses, but th^ are natoial. The appetlant used to come to the vill^e of the prosecutrix for fishing and he was not cmnpfetety unknown to the witn^ses. The appettanthas been properiy ktentBied byftepereons; l2.tn this case, the appellant has not dteputed ttie incldent o( rape wlth the prosecutrix, he has disputed fhe rape committed by htot. Qn the rther hand, the prosecuhTx (PW-l)hasstated that rape has been committecl on her. . ShanU Tirtey yW-2), mother of the prosecutrix; has ateo stated that tWa s ga prosecutrix has nanated the incident to her and she has s(»cifically^ated ttiat??; j rape has been eommitted on her. The ^atement of Shanti Tirkey ^!W-2) ^as-Kgg been supported byAmikaTirl<By(FW-7),sistsroftheprosecutrix&SMtu|Laki'a,|dSS (VPW-S), brother ofthe proseeutrix. Dr. B.P. Sushma Ekka <J3W-1%hre«te e<fcfi%|? that she has examined the presenrtrec on 13-8-2M)4at abc 10^ a.m.vidsigysg €x.P^and she fbund injuri^ on tfie body of tie prosecutroc a&inenflonecti i§g vass: para 4 of Uiis judgment. She has specifically stated m para ®<»fhw arider^l that the sexual intereouree has been committed w»httie pij»seeyhr)ife^^f-^||||j|i| •.-INia'iS;''§!:.:! ~-'"l"im^"flww \-:i" report and the injuries over extemal parts & intemal^riwite parts of the prosecu»ix are suffiGtent to itraw infersnce tfiat fte proseculroc has been subjected tosexual fntBrcoursa. The prosecutm has notdated Ihat she has consented for sexual intereourse. 1» view of ttie above evi<fence, tt is established that tlw prosecu&Bc has been subjected to rape on the date <rf inciclent. - 13. In order to connect the apgettant vMh the crime in queStion, the prosecutiOn has adduced the evidence of the prosecutrix, eyewitnesses and other witnesses to whom the prosecutrix has narrated the Incictent |i»tafter the incident. The prosecutfon has ateo alduced evidence r^arding the ^ecrf the prosecutrix. ^e ofthe prosecufrix hasbeenascatEunectbytheCouitas 13 yeare at the tjme of recording her evklenca. At thstt time, she was a student ^ Class-IX. Dr. B.P. Sushma Ekka <PW-1(^ h»statBd tt»t ttie sexusrt charactere oftheprosecutrixwere under clevetopment, in otherwoRls not futly developed. The proswutton has not conducted ttie ossiflesrtion test of the prosecutrix and tiey have not collected the documents relattng to her date of birth, but ttiey hav®collected the document Ex.I:<-3A, marl®sheet of ttoe prosecutrix, which shows her date of birtti as 18-7-1^1. On ttie basis ef thte document, the prosecutrix was below the age of16 years on the d^e <rftte all^ed incident j.e. 10-8-2004. The prosecutrix has admitted in para 8 of hw cross-examination that the age of her brother is 23-24 yeare, she stopped studying, herelder sister Amika is one year younger than twelder brether and she is atso one year younger than her sfetsrAmika. Shanti Tirkey (FW-2), mother of the prosecutrix, has adnmtted in para5 <rf hw eross-exENninaflan that hermarriage took place 40 yeare ago.she hasstetad her age on the basis of assumpti6n, but she has notstated the exact age of tw daughter (pr^ecutit^. The prosecuUon has not adduced any (trfinit®eridencs or cotlwted any speciflc document to ^icw the age of the (wosecutrix and It has also not conducted her ossification tesfc The prosecuUon has also notadduceel any evidenwto the effectthatonwhat basis thedateofMflh oftt»eprosecu&Bc has been wfttten in Ex.P-3A, in absenee of such evidenee and taking Into consideration, the evidenee of the prosecutrix it is difficutt to hold that ttie prosecufrix was betowthe ageof16years on the dateofincidert. 14.The prosecutrix (PW-1) tes specificatly stated in her ewdenee that ei) the jg fateful day while die was (wesent with the catUe, ttie accusecl, wtw is known toHj|s her, Came firom her baclc and caught hold of h«,he threw Itordqwn and affleT;||| sWOuleiy,itlie|^sSM opening the unelerwear, he commttted rape on her. Wwi shef threatened her to Idll her. After' hearing the sounds' of' help,: lier :l)R}tS|rJ||^BB ..^^•::.'ji^lBfciill^^®ii ^ame on the spot. ThiereaneT.theappeflantjun'iped wer <ftertver|ifK^| "'KfS^S'ss^:Sess"s'ss^si^ usaA >•- from the spot. She told the incident to her sistCT & mother, thereafter, she todged the F.I.R. HeF mother ShanU Tirkey (PW-2) & ^ster AmUca Tirkey (PW- 7) have supported herversion. 15.SuntlLakra(PW-8)hasstated in his evidence that on ttie fateful ctoy his sider (the prosecutrix) was weeping by saying 'Bhaiyya Kiaiyya', he went ttiere, whereupon, Uie accused jumped over the river, he saw Ihe accused and identitied him. l6.The prosecutrix has not admitted that she ha® consented for seaial intercourse. In her cross-examinaBon she has stated ftat ttie accusad was not known to her and on the basis of the information given by the Poliee, she has stated her name. She has atsQAidmitted that her mother, sister & herself have decided in ttieir house that they wiB state against ttie appeltant and on the basis of such decision, she has stated against him. She has further admitted that the Govemment awards compensation of Rs.50,WX)l- to the vicUm in the cases of such nature, therefore, she has stated againsl the accused in the Court. She has further admitted that at the time of incident there was darkness and she was seeing the accused for the first time in the Court. 17 Shanti Tirkey (PW-2), mother of the prosecutrix, has admitted in her cross- examination para 6 that Uie name of ttie accused was told to her by her daughter. She has atso admitted ttiat ttie accused used to come to river daily for fishing and she has seen her. She has denied that ttie appellant has not committed rape with her daughter. In para 7 of her cross-examinadon she has stated that they have decided what to state in the Court and with a view to ensure conviction of tfte accused, she has stated against him. She has denied that her daughter has not told anything to her. She hasspecifically stated that her daughter came to her, she was weeping and narrated the mcident to her. She has aiso denied the suggestion (hat as a resutt of enmHy of his son Satish wiUi e accused/appellant on the basis of a foottall mateh, they have impticated the accused falsely. 18. Amika Tirkey (PW-7) has aiso admttted in her crass-examination Uiat in cases of commission of such offence, the Govemment used to award Rs.50,OX}/- to the victim. She has further admitted ttiat she has deposed in Uie Court with a view to receh/e Rs.50,000/-. Sunil Lakra (PW-8), brother of the prosecutrbc, has admitted in para 2 of his cross-examination that eariier he has raA met the accused, he has seen the accused first time on the date of incident after he jumped into the river. He has also admltted that there was Uarkness at the time of incident and he has not tried to cateh the accused. ,Si...:,,::,fl •:;,^•.^ssywvwssset^sw^y"s^!:i 6 19. In this case, the appellant & the prosecutrbc were not residents of the same vitlage. the appellant is res'ident of Telijor. Police Station Talsara, Distt. Sundergarh, State of OrisKi and the prosecutrix is resident <rf Viltage Lavakera (Gyartoli), Police Station Tapkara, Distt. Jashpur, State of ChhatBsgarh. Although the appellant is not required to explain that where he was present on the date of incident or why-Bie prosecutrix & other witnesses had falsety implicated hlm even though he was not known to the prosecuttwi witnesses. 20 There is discrepancy in thestatements of the witnesses relating to Ident'rty <rf Ae accused. But the appellant himself has suggested to Shantt Tirkey (PW-2) In para 8 of her cross-examlnatipn that there was enmity between her son Satish & the appellant on the ba^is of a football matrii in the year 2003 and on the basis of such enmMy they have falsely impllcated him. The appetlant has also suggested that there was tootball mateh between the persons of Village Lavakera where the prosecirtrix resides and ttie pereons of Villags Telijor where theaccused resides. tn her cross-examination para 6, Shanti Tirtey (PW-2) has stated that daily tfte appellant used to come to river for fishing. Amila Tirkey (PW-7) has stated that daily she used to graze the cattle in fleld. 21. It appears from the evidence of the witnesses that name of the appellant was not known to the prosecution wtoesses. The prosecutrtx (PW-1) used to graze the cattle in field near river where the appeUant used to come to the mer for fishing daily. The prosecutrix may not be knowing ttie appellant by name, but after commission of offence she cameto know his name and she has lodged Uie report by naming the appellant. The su^iesBon made by the appetlant to Shanti Tirkey (PW-2) also ^iows ttiat the appeltent & the brother of the prosecuttix were known to each other. The prosecutrix has specifteally ^ated that the appellant has committed rape on her. She has not stated that ^ie has consented and was willing or consenting party. 22. Much stress has been laid on behalf of the appeltant regarding Ihe evidenc^admjssion of Tact that the wittiesses are havir^i tcnowledge aBout tto fact that in the cases of commisston of such offences, the Government used to g'lve award of Rs.50,0(X)/-as compensaflon and for that purpose. they hav® decided to state against the accused to ensure hls conviction and as a resutt of such decision & discussion, they have deposed against ttie accused wfth a view to ensure his conviclion and to receiveRs.50,000/- as compensation from ttie Govemment. This fact has been admitted by fte proswutrix (PW-1), Shanti Tirkey (PW-2) - mottier of the prosecutrix, Amika Tirkey (PW-7) - si^er of the prosecutrix & Sunit Lakra (FW-8) - brother of the prosecutrix. But on carefut scrutiny of Court evidence of the prosecutKm witnesses and thejr 'S'3^'. 1^411it%''ili;;J^^l BEISiiEM'HHSS jottia statements recorded under Section 161 of the Gr.P.C., we flnd material similarity between both the statements. They have stated same thing in their evidence before the Court what they have eariier stated in their statanents recorded under Section 161 of the Cr.P.C. They have npt substanttatly ex^gerated anything or ttiey had nof tried to become eyewitnesses without being eyewitnesses to the incident. Even after discussion & etecjsion thattfiey will state against the accused, they have stated what they know w what they have seen. They have also stated that they know ttiat on commission of offence of such najture, the Govemment used to awaid compensation to the victim. This shows that wen after knowing that the ©ovammentuaed to award compensation to the vicfim of ttie offerice, they have not deviated and they have not stated anything in acktition to what they have stated eartisr. 23- The prosecutrix and the witnesses are redderrts of the same village. Th^r evidence insplres confidence and it is trustworthy. The prosecunfx has specifically stated that the appellant has eommitted rape on her. The appellant has not offered any explaiation except the ctaira of innocence and false implicaUon, if heis notthe resident of village Lavakera and he was not known to the prosecutrixor tfie prosecution wftnesses, ttien it was impossible for ttie prosecutrixand the witness^ to tell his name & addrsss. The accused himsetf has suggested tp Shanfl Ttrkey (PW-5), mother of ttie prosecutrix, that he is virtually known to the brother ofthe prosecutrbc and there was dispute with the brother of the (»osecutrixin the year 2003 as of resutt, he has been fatsely implicated in the crime. This is the incident of 10-8-2004 and at least aStw lapse of eight months it te not acceptabie that somebody wilt implteate the accused falsely^hrt too on ttie basis cS some (feputB of a mateh by putBng the presUg&of her unmarried daughter or sister in distress. 24.After appreciating the evidence availdale on record, leamed trial Court has convicted Bie appellant under Section 376 (1) pfttw I.P.C. and senteneed hin) to undergo R.I. for seven years & pay a flne of Rs.1,000f: The trial Court has awarded the minimum prescribed sentence to the appellant and there is no cogent reason for awarding tesser seritence than the minimum prescrib«J sentence. •^, 25 Consequently, the appeal is liable to be dismissed and it is hereby dtennissed. :^ ::"SdA,/;: TJ'.Shanna Judge i y ^