HIGH^QURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA 8& HON'BLE MR. R.L. JHANWAR. JJ. Criminal Appeal No. 1138 OF 2003 Kanhaiya, S/o Neelkanth Verma, Aged about 28 years, R/o Jarhagaon, P.S. Bhatapara (Rural) At present Vill. Piparahi, P.S. Suhela, District Raipur CHHATTISGARH APPELLANT ACCUSED (In Jail) RESPONDENT VERSUS State of Chhattisgarh Through, Station House Officer Police Station Suhela District Raipur CHHATTISGARH CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. 1973. Present:- Mr. Vimlesh Bajpai, Advocate for the appellant. Mr. Neeraj Mehta, P.L. for the State/respondent. QRAL-JUDGEMENT (Passedon 06/09/2010) ,.^-' The followfng iudgment of the Court was passed bv T.P. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23/8/03 passed by First Additional S^ssions Judge, Baloda Bazar in Sessions Trial No. 182/03 whereby and where under after holding the appellant guilty for the commission of rape with Ku. Monika, 4 years aged girl and culpable p= homicide amounting to murder of her and use of criminal force upon the Kamalnarayan, aged about 14 years; convicted the appellant under Sections 376 (2) (f), 302 & 352 of the Indian Penal Code and sentenced rigorous imprisonment for 10 years and fine of Rs. 1000/-, in default ofpayment offine amount additional rigorous imprisonment for 1 year, rigorous imprisonment for life and fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year & rigorous imprisonment for 2 months. The judgment is impugned on the ground that without there being any incriminating evidence against the appellant/accused connecting him with the commission of the crime in question, learned First Additional Session Judge has committed an illegality by convicting and sentencing him. as aforementioned. Brief case of the prosecution is, on fateful day of 2/5/03 at about 10:00 A.M. appellant was present near the bore of PW1 Lekhram, he was discharging work of watchman in the field of Lekhram. He committed rape with Ku. Monika, 4 years aged girl and committed her murder, when PW3 Kamalnarayan another child witness, came to spot and asked about Ku. Monika then appellant used criminal force upon him. ^^ Immediately, Kamalnarayan informed other persons, they gathered near the place of incident and finally First Information Report was lodged by PW1 Lekhram vide Ex. P-1, he also lodged Marg Intimation vide Ex. P- 2. Investigating Officer left for scene of occurrerice and after summoning the witnesses vide Ex. P-3, inquest over the dead body of the deceased was prepared vide Ex. P-4. One blood stained underwear found near the place of incident vide Ex. P-7. Spot-map was prepared vide Ex. P-6. Dead body was sent for autopsy to Government Hospital, Baloda Bazar, PW8 Dr. R.S. Tiwari conducted the autopsy vide Ex. P-8 and found following injuries:- (i) Contusion over the neck of 7 x 6 c.m. with linear abrasion. (ii) Abrasion on right side of the neck of 1% c.m. (iii) One incised wound/ lacerated wound over right side of the upper lip of 3 x 1/2 c.m x skin deep. (iv) One incised wound/ lacerated wound over right side of the lower lip of 2 x V'2 c.m x skin deep. (v) Contusion over the neck of 3 x 1 c.m., redness was found upon lower part of labia majora. Easily separable secretion slides of vaginal smear was taken. '<.'-. ^: ^x;- Mode of death was asphyxia as a result of throttling and death was homicidal in nature. 4. Undergarment of the deceased Ku. Monika was examined vide Ex. P-9. Accused was also sent for examination, he was examined by PW8 Dr. R.S. Tiwari vide Ex. P-11 and found capable to commit intercourse, one contusion over scapula of5 x 3 c.m. was found. Sealed slide and frock was seized after autopsy vide Ex. P-13. Sealed articles were sent for chemical examination vide Ex. P-15. Presence of blood was confirmed on slide vide Ex. P-17. 5. After recording the statements of the witnesses under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code?) and pn completion of the investigation, charge sheet was filed against the accused/appellant in the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the case to the Court of Sessions, Raipur from where the learned First Additional Sessions Judge, received the same on transfer for trial. 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Accu'sed w:as examined under Section 313 of the Code in which he denied the circumstances appearing ^'' /y" ,^^^ 'w ^) against him and claimed innocency and false implication incrime in question. 7. After providing, an opportunity of hearing to the counsel for the parties and perusing the evidence adduced by them learned First Additional Sessions Judge has convicted and sentenced the accused/appellant as aforementioned. 8. Learned counsel for the appellant Mr. Vimlesh Bajpai and learned P.L. for the State/respondent Mr. Neeraj Mehta are heard and perused the material available on record including thejudgment impugned. 9. Learned counsel for the appellant vehemently argued that in the present case, prosecution has not adduced legal and clinching evidence sufficient for conviction of the appellant. Conviction of the appellant is based on suspicion and evidence of sole witness PW3 Kamalnarayan whose evidence is not safe to rely without any further corroboration. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that present appellant has committed rape and murder Ku. Monika 4 years aged girl and when matter was inquired by another child witness PW3 Kamalnarayan then he used criminal force upon PW3 Kamalnarayan. Evidence of PW3 Kamalnarayan and chemical examination report ^- .^•^ • V. 7(^^ ^-7 "^^- ^ ^- of slide is sufficient for conviction of the appellant for the offence punishable under Sections 376 (2) (f), 302 & 352 of the Indian Penal Code. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of injury of 4 years aged girl Ku. Monika has not been substantially disputed by the appellant on the other hand, also established by the evidence of PW8 Dr. R.S. Tiwari and autopsy report Ex. P-8 which reveals that injury was found over the neck of the deceased. Mode of death was asphyxia as a result of throttling and death was homicidal in nature. 13. As regards the commission of rape with 4 years aged girl Ku. Monika is concerned, as per evidence of PW8 Dr. R.S. Tiwari, and report Ex. P-8, chemical examination report of vaginal smear slide of deceased and confirming the presence of blood are sufficient for drawing an inference that she has been subjected to intercourse just before her death although the person has not succeeded in full penetration. For the purpose of commission of rape, slightest penetration is sufficient to constitute the offence punishable under Section 376 of the Indian Penal Code. In the present case, age of the •^ p- prosecutrbc was only 4 years therefore, the act squarely falls within the ambit of under Section 376 (2) (f) of the Indian Penal Code. 14. As regards complicity of the appellant/accused in the crime in question, conviction is solely based on the evidence of PW3 Kamalnarayan child witness, who has deposed that he was directed by the teacher to switch off the water pump installed in the field of Lekhram. He went to pump house where he saw the dead body of Ku. Monika, which was lying in the water and appellant also came near that place. He asked to the appellant , that why Ku. Monika was lying in the water then appellant replied that he do not know but he tried to press his neck anyhow he Hed and went to the village and told the incident to other persons. In his cross- examination, defence has asked that present witness is a person who has caused injuries to Ku. Monika but this fact does not find any support from any other . sources. 15. As per evidence of PW1 Lekhram, appellant was appointed as watchman for watching the field, he was present on the spot at the time of commission of offeuce. Present appellant has not offered any explanation that whether some other persons came near the pump house and has committed the offence , ^ ^ ('•- with Ku. Monika. Recent presence of the appellant near the place of incident, attempted to commit assault and use of criminal force upon PW3 Kamalnarayan when he asked about Ku. Monika. All the circumstances are sufficient for drawing an inference that present appellant is a person who has committed the aforesaid offences. 16. After appreciating the evidence available on record learned First Additional Sessions Judge has rightly convicted and sentenced the appellant for the offence punishable under Sections 376 (2) (f), 302 & 352 of the Indian Penal Code. 17. On close scrutiny of the evidence, we are of the considered view that conviction of the appellant is based on legal, credible and clinching evidence sustainable under the law. Consequently, the criminal appeal being without any merit is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^\/