f"l ^M :,iiii: ^ ^- CFOOOObS769'0 IN THB, H3SH GOUHC OE"MU3H£A PBaOBSH 'AI J&BSLPUR. • - : -' CBMINAI. ^SBtf- NO.'^'b&^-OE' ;1994. , .: Ji.PP£iLLi:AHI i- Dukal-das Mailtourf, son~ of'Kirandas •^ KianUspuri,'agad about 21' yegi-s, resMsnfe /'- ^ _ - ". -!_; '" o.f Eajiv; ITaga^? BaJ-purA^'. i/erst.is ^ HSSPOBQi^BL'.:- rh6 Stafce'ofMadfaya.J'rade^i. /, -•S.^B&-tMDEB-SBCT.m5-2Z!+^2L -S5&-SODSJ)? RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:45 +0530 ^^^^a IsSS'WsSS "r;.'-;.7['^a^^^^' <^0 IE^fe KSEa3s:i'31f»S HIGH COURT OF CHHATTISGARHAT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1302 of 1994. APPELLANT RESPONDENT VERSUS Dukaldas Manikpuri. State of Madhya Pradesh. Shri M.D. Dhote counsel for appellant. Shri Pravin Das Dy. GA for respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (03.02.2010) This appeal is directed against the judgment dated 30.9.1994 passed by Additional Sessions Judge, Raipur, in Sessions Trial No. 322/1993 convicting the accused/appellant for the offence punishable under Section 376/511 IPC and sentencing him to undergo rigorous imprisonment for 5 years. 2. Case of the prosecution in brief is that on 27.5.1993 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 10 years to the effect that on 22.5.1993 when she had gone to the house of the appellant to play with the child of his sister in law, he took her inside the room on the pretext of giving money to her, made her lie down on the ground and after removing her and that of his under-garments committed sexual intercourse with her. After completion of investigation, challan was filed in the competent Court where charge under Section 376 IPC was framed against him. 3. So as to hold the accused/appellant guilty, prosecution has examined 06 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the 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 offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that in view of the statement of the prosecutrix and her mother Ansuiya Bai (PW-2) the case of the prosecution becomes doubtful. He submits that the prosecutrix has stated in her evidence that sexual intercourse was committed with her whereas the medical report does not support her version. According to the counsel for the appellant, the prosecutrix has not stated that it was a case of attempt to rape but she has categorically stated that sexual intercourse was done with her by the accused/appellant. 7. On the other hand counsel for the respondent/State supports the impugned judgment and submits that at the relevant time the prosecutrix was ayoung girl of 10 years and being physically handicapped she was not even in a position to walk. He submits that it is due to the medical report being negative, the appellant has been convicted under section 376/511 IPC otherwise he would have been convicted under section 376 alone. 8. From the statement of the prosecutrix (PW-1) it appears that she used to visit the house ofthe accused/appellant who happened to be her neighbour to play with the small child of his sister in law. She has also stated that on the fateful day when sister in law of the accused/appellant was not at home, the accused/appellant had called her on the pretext of giving money to her and thereafter he made her lie down on the ground and after removing her and that of his undergarments committed forcible sexual intercourse with her. She has further stated that at the time of the commission of offence, the appellant had gagged her mouth and therefore she could not raise the voice. However, on hearing the cries raised by her friends who were playing outside the house, her friend Meena came there but she did not disclose the incident to her due to fear of the accused/appellant. According to this witness, when 3-4 days thereafter she felt pain in her private part, she disdosed the incident to her mother and then the report was lodged. While recording the statement of this witness, the Court has categorically observed that she is a physically handicapped girl and her both thelegs are polio affected. Mother of the prosecutrix namely Ansuiya Bai (PW-2) has also supported the statement of the prosecutrix saying that her daughter had complained pain in her private part and on being asked she started weeping and narrated the act of the accused to her. Netram (PW-3) resident of the same locality has also supported the case of the prosecution and stated that in the village meeting the prosecutrix (PW-1) and her mother (PW-2) had disclosed the incident to the villagers about the act of the appellant and when the accused/appellant was called, he refused to attend the meeting. Bodhiram (PW-4) has also supported the case of the prosecution. Dr. S.C. Bisnoi (PW-5) who conducted ossification test of the prosecutrix and submitted his report Ex. P-5 has opined the age of the prosecutrix to be 10-11 years. Investigating Officer C.S. Netam (PW-6) has also supported the case of the prosecution. Though the doctor who had examined the prosecutrix has not been examined, her report Ex. P-10/A has been admitted by the defence. According to the medical report no injury was found and nothing has been opined by the doctor regarding the prosecutrix being subjected to sexual molestation. 9. Thus there is ample evidence to show that a minor and physically handicapped girl has been subjected to sexual molestation by the accused/appellant. Statement of the prosecutrix and her mother makes the entire picture clear as to the manner in which accused/appellant has made her the victim of his lust taking advantage of her helplessness. Nothing has been brought on record •Ei"::E ^ sl!i!' -t<- by the defence to discredit the testimony of the prosecutrix and her mother nor the plea of false implication has been substantiated by it. 10. In view of aforesaid analytical exercise on the facts and evidence led by the parties, this Court is of the considered opinion that the impugned judgment dated 30.9.1994 is just and proper and no interference with the same is warranted. Accordingly, the appeal being devoid of any substance is liable to be dismissed. It is dismissed as such. -—---— - --- Pritinker Diwaker Judge t^;g.i;s^"' K^il :j