2-s" ')' XI-HG—78 S^V 9iT lc;-1 W1T Sf^S sbli'* 3^^ "i||<<l<rt-M, ^iTfly'lfi, Rlrtiyy 17PT91T *»4i*-•--•----••--•-•-•••-••-y--^200 an^?r ^raw (1j?f5^??T) wnWHfci sii^i APPELLANT /In i«lnal /^s «<-+^\/<t^A ^ii) vuii ^/iui^iii/^iy^ Gahesh, S/o Nandram Dhobi, aged about 45 trs, Profssslon Driver, Rssident of Vsilage Dei/erbjja, P.S. Bemetara, District Durg, Chjiattisgarh. -Versus- SNte of Chhattisgarh. Through P.S. R- jnetsra, District Diirg, ChhatSisgarh. (Appeal under Se| Division Bench: Hon'bie Shri L.C. Bhadoo & HoR'bis Shri Suns! Kumar Sinha btion 374(2) of the Cr.P.C.) 1-1- Shri V.P. Gupta, counse! fo Shri U.K.S. Chandel, Panei Oral judgment dictated on Suni! KumarSinha.J This appeai is directed aaai sentence dated 31-10-2001 Fast Tract< Court, Bemetara, Durgl accused/appellantwas he!d guilftj 378(1) of the Indian Penal Cod^ undergo imprisonment for life. victim namely, Pushp^ of the accused/aDpeHant is ihat in the evenina of 1: CM^I<n-sfli 'RTTRff ^"fe^ Tf^R^R ^aifipT 3ii^i the appeliant. ILawver for the State. Sias. Inst the judgment of conviction and order of by the 2 Addjtional Sessions Judge, i|, in Sessions Triai No.92/2001 wherebv the for the offence punishable under Section k (for short 'the IPC") and sentenced to (PW-1), a gir! aged about 17 vears. is the namelv, Ganesh. Case ofthe prosecution, '-4-2001. the wife of the accused/aDpeilant 2< 3^ET •<ll-M10'i|, aiTf1<4'l<S, fs|<?''l'y^< NWdl (bttlcb WI. 200 ailcSr TRSI? (1j«lf5?5tT) sn^i w k'u'^i TTSIT SIT^T sti*lich 'z TOiTWflftg sii^r M/as nameiy, Birja (PW-2), had gone for| son namelv. Mukesh (PW-7) had other sons were aiso not oresent. house. cauaht hold of the prosecutix underwear and committed foresful ^i mother of the Drosecutrix i.e. Biri^ about 7.00 p.m., the prosecutrix n^ Information Report (Ex.P/1) was ioiti; Bemetara at about 9.30 p.m. The| The Station House Officer sent the requisition Ex.P/9. The prosecutrix (PW-5). who prepared her report E)(. that the victim was aged about17 there v/ere no marks of injury over| were taintv. On separatina labia, (t< were irreguiar and abrasion was s| smai! abrasions were seen on th4 ooinion of the doctor, hvmen was raoture was recent within a period <ti< the accused/ apoeilant was als4 reguisition Ex.P/14. He was Dreoared his report Ex.P/3. Accordiilig were absent. genital organs were ^ found on thiah and genitei organs. caoabie of performing sexual intere^u v +i<t[^i<i1*i *ii*i<^' ^'fe1^ <[ot^i< ^siRnsii^r Iworkina in the house of Dr. Shrivastava, ione outside the house for piaving and M that time. the accused entered into his c, threw her on the ground, put off her iexual intereourse aaainst her. When the (PW-2) returned back to the house at irrated the story to her. Thereafter, First iged by the prosecutrix in Police Station IFIR contains the name of the appel!ant. ibrosecutrix formedica! examination under examined by Dr. Rajeshwari Dsvdhar .P/5. !n the medical report she observed h/ears. her breasts were fuilv developed, breasts, abdomen or back. Pubic hairs irforated hvmen was seen. Its margins sen on the right lower poriion of it. 2-3 teft side of hvmen. According to the bv some hard & biunt obiect. The W 24 to 48 hours. !n further Investigation, sent for medica! examination under bv Dr. N.K. Tiwari (PW-4), who to his reDort. smegma over gtans penis Iveii developed, no externa! iniuries were IThe doctor ooined that the accused was i. Station House Officer prepared the rUDtured exarhlned intereturse 's^ -^ww^, tiixfly'ie, Ri<?ii'y^<, *41H^I <b*11cb "^ 200 an^?r ^°ra? (lj<it-l<<<{ti) 3D^[ W R'fi'* TTSH sn^T sh+ii<t) TOiiw^fei'ai^t q)i<fT<n<ili •qffl^?'^,1^^ <,P>it$i< IT 3lfOT •SHI^it site plan under Ex.P/7. He seized] The underwearof the accused/apD^ seized articles alona with the clothet to FoS'ensic Science Laboratorv. R4 Ex.P/18 was received. According was found on the underwear of accused/appeilant as also in the medical examination ofthe prosecul Ithe ciothes of the victim under Ex.P/10. lliant was aiso seized under Ex.P/12. The ete. were sent for chemicai examination lipur. under Ex.P/16 from where a report ]to the sald report, human spermatozoa Ithe prosecutrix and underwear of the siities prepared by the doctor at the time of nx. 3) After usual investigation. Judicial Magistrate First Class, the Court of Sessions Judge, Durg, 2 Additional Sessions Judge, conducted the trial, convicted &1 aforementioned. ciiarge sheet was flied in the Gourt of Berrletara, who in turn committed the case to IFrom where it was received on transfer by F^st Track Court, Bemetara, Durg, who sentenced the accused/appet!ant as 4) Learned counsel for the aDp( Hna have not dulv supported the! conviction cannot be susteined in that in the facts and circumstancfes imprisonment is too harsh, whichl Drescribed under Section 376(1) ofthe -1 Pushoa & PW-2 feliant araues that lcase of the this case. Alternatively, fes of the case. the mav be reduced to the minimum as also argues 5) We have heard Shri V.P. Shri U.K.S. Chandel. tearned Panel Gtjptai, learned counsel for the appellant & L.awver for the State. 3D^r ^T k-U'h Wf! 3TT^T st»^i<* L^) -S^ •^|.S<|^, ©Tfl'M'IS,(s|<?i|'yy WHvi\ **<!* WI, 200 3II^?T TIilW (1j?fp?t») TCiwdf??r sii^f deni^d agaihst sexfcal 6) Victim Pushpa has been ext examination-in-chief, she has by her father. She has denied dep^sitionwhen her mother had ^o brother had gone to plav and whe|n time her father entered the room, dl was thrown on the ground and aWi committed sexual intereourse her mother retumed from her worH that her father has committed para 3 of her examination-in-chiefl lodge the report along with her mof| examination to the hospital bv underwear & skirt were also seized on her own that the accused hajd against her. When the contents witness, she has admstted that station. She was put to cross-exi cross-examination. she has stated father had beaten her and she had poltee station along with her mother to her. In the last line of cross-< ,had not committed any bad work underwear. done thle haU sucin *i'<!<'i41-i ^ipraf ^fe^t <(»I<(K ^aiRmaiT^t imined as PW-1. Firstiy, in para 2 of her about the sexual intereourse committed hat 5 months prior to the date of her to the house of Dr. Shrivastava, her she was all atone in the house, at that losed the door from inside, thereafter she r removing her underwear, her father has her. . has also denied that when she had narrated the story to her telling intercourse aaainst her. However. in she has admitted that she had gone to |ier & Maniram, she was sent for medical ^ police. her x-rav was conducted. her by the police. Thereafter, she deposed committed forcelul sexuai intercourse |of FIR (Ex.P/1) were read over to this kind of report was iodged in the Dolice |mination by the defence counsei. In her Ithat on the fateful dav, out of anaer, her faone to lodge the report of this incident to I. The police has not read over the report i, she has deposed that her father with her and he had not removed her exailnination, 75? '^WKft-'.l, BTfly'Ko, Rldly^ IWTOfT shNlcb •^ 200 an^T tRR? (iyf-l«i<ia) 31I^T ?il [t;-lich '?T8in ^FTT^T'gTqN? wann: flfta aii^i 7) PW-2 Biria, who is the mo|t accused/appellant, has fajrned hostif the prosecution. However, she has| that her husband most oftenly useid remaln angry. her husband used Shrivastava for working, on accounf going on. She has further deposetl weakmind. ther of the prosecutrix and wife of the fe and she has not supported the case of [stated in para 4 of her cross-examination to assault hv terefore, she used to |to stop her to go to the house of Dr. of which the dlspute between them was that her dauahter (victim) was a giri of 8) Mukesh, a boy aged about prosecutrix and son of the He deposed that on the date of incit the house of Dr. Shrivastava, he wa| & father i.e. prosecutrix & accused examination he deposed that whert saw that the door of the house was through a hole of the door, he saw his father was committing sexual i| deposed that seeing this he was| maternal uncle, but he could not came. he narrated the storv to he< mother. In cross-examination, he mind. In suaaestion that he had telling on tutoring by somebody, h< what he has seen. accusecyappellant incitlent cti)*iT<i<ft'i ¥iw'3ifTf.'fe^ <t^i-(^i< ^TSifiTO 311^1 |10 years, who is the real brother of the t, has been examined as PW-7. t, his mother has gone for her work to a|s playing outside his house and his sister ttoth were in the hoyse. Vide para 2 of his he went to house for drinking water he blosed. When he peeped inside the room his sister was Iving on the ground and ihtercourse aaainst her. Vide oara 3 he goina to tell about the incident to his (neet him. Thereafter, when his mother Pushpa also narrated the story to his admitted that Pushpa is a girl of weak iliot seen anv such occurrence and he is has specifically stated that he is telling Has 3?ET "4i<<ici<<, a'JI'y'ie, Ririiy^ *<1*<^1 **11* •^ 200 an^r'ww (4?if-t»i<t?T) 311^1 W R-IWl ^^ 3TR?T sh*41<ft ~0 warw ^ifer sii^r 9) On the basis of the above e\ accused/appellant for commission IPC. Though a shaky evidence ha fact cannot be lost sight of that a against her own father and she hasl story has been narrated bv her. disclose tlie facts in the Court, bu( stated that her father committed through the entire evidence of the| giving a false version or she is Her evidence is duly corroborated examination found that the hymen 3 abrasions on it. It is further the prosecutrix namely, Mukesh evidence of the prosecutrix inspires ] 10) In view of the above, we a( case. the Drosecution has been abl4 sexual intercourse bythe any infirmity in the judgment of the t\ 11) So far as awarding the s{ oroportion between crime and just deserf. The doctrine is the ultimately awarded for a punishml deserves should be the ounishm^nt cM<<tfl<ft*T *K*Knf ^fet^ <r^-^.l< ^aifipTsn^i Ndence, the trial Court has convicted the |of offence under Section 376(1) of the i^ been given by the prosecutrix, but this tairi, aaed about 17 vears, has deposed lodged the report Ex.P/1 in which entire "hough in the flrst insiance she did not in the later part, she has categorically se|xual intercourse against her. After going Igirl. it cannot be said that eithershe is aMing a tutored version against her father. b]v the evidence of doctor. who on medical c|f the girl was recentiy ruptured, having 2- corroborated bv the evidence of the brother of (F|W-7), a boy aged about 10 years. The Ifull confidence ofthis Court. (e of the considered opinion that in this to prove that the victim was subjected to accused/alppellant and to that extent, we do not find Nal Court. 'ntence Is concemed, the principle of punpshment is governed by the "Doctrine of fopndation of a criminal sentence which is int to the wrong doer. What one really for having committed a erime is the / s^r'^pn^^, ^yi<i, 1^ray •WI. 200 3<I^T'qa^ (^(•jsf^liT) an^I W i<-fi'* ^H 'STR^T sh+i|cj? TOIRR ^?^T 31I^T underivina DrinciDle. The puni'shmelnt a coroilary of "just ctesert" which i^ savs that there cannot be a punishjment bahirid the principle is the proportii|)n lesser is the gravity of the crime, t^ie the greater is the gravitv of the critse, subiect to the ancillarv factors for thouah ail further subiect to the stal lav/ in foree. must not be disproportionateiv grsat is governed bv the same principle which without guiit and the basic element between crime and punishment. The smalier would be the punishment and s. the higher would be the punlshment, Idetermining the proportion of the same, tuton/ obligations specificaiiv providecl by 12) In the present case, regarding commission of sexual did not deoose against her father, negative in the eross-examination hsr mentel condition. as also that Drosecution and the partles bel earning theirlivelihood, we deern it mstead of life Imprisonment and tcj triai Court can be modified. 13) In the result. the appeal appellant under Section 376(1) of of iife ImDrisonment is set aside. R.l. for 10 vears. !t is reported 13-4-2001. He shaii be entiUed fo ^piferaN wraf ti.test <fai^i< '^aiRnsn^i to the evidence of the prosecutrix inyreourse. in which. in the flrst instance she but !ater on she deposed, but aaain said ^nd further looking to the evidence about mother has not supported the case of to poor iiiiterate iower class, hardly broper to award sentence of 10 vears R.t. that extent the judgment passed by the oilig Sd/- L.C.BHADOO Judge bartly succeeds. The conviction of the the IPC is upheld. However, the sentence litistsad of that he is sentenced to undergo that the appetlant is in detentlon since set off for the period already undergone Sd/- SunU Kumar Siaha Judge o^