^,^(> ^v APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I Criminal Appeal No. 1243 of 2002 Balram Sahu VERSUS RESPONDENT State of Chhattisgarh Post fpr pronouncement of judgment on [ ^ -2-2009 Sd/- T.P. Sharma Judge '^ APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.SharmaJ.1 Criminal Appeal No. 1243 of 2002 Balram Sahu son of Sehattar Sahu aged about 22 years, resident of Lalpur, Police Staion Tikarapara, Tahsil and District Raipur, CG VERSUS RESPONDENT State of Chhattisgarh through Police Station Tikarapara, Raipur, CG. Noneappears for the appellant. Mr.Sameer Behar PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE JUDGMENT ( U.02.2009) This appeal is directed against the judgment dated 30.11.2002 passed by the Additional Sessions Judge, (FTC) Raipur in Sessions Trial No. 94/2002 convicting the accused/appellant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years, three years and seven years respectively on each count and pay fine of Rs. 1000, with default stipulations. 2. The judgment is challenged on the ground that the trial Court has committed anjllegality in convicting and sentencing the accused/appellant as mentioned without appreciating the facts brought on record as well as the medical evidence adduced by the prosecution. 3. Case of the prosecution in brief is that the prosecutrix Hira (PW-2) aged about 14 years was residing with her father Hirdayram (PW-1). On 19.12.2001 at about 7 p.m. accused/appellant kidnapped the prosecutrix and took her with him to Durg, kept her there in a tenanted house from .^^.;-. ® 19.12.2001 to 19.1.2002 where he used to commit forcible sexual intercourse with her. Prosecutrix was recovered by the police. FIR (Ex. P- 1) was lodged by the father of the prosecutrix. Clothes of the prosecutrix were seized vide Ex. P-3. She was medically examined by Dr. (Smt.) Jaya Fuljhale (PW-5) who vide Ex. P-5 opined that her breasts were fully developed auxiliary pubic hairwere present, hymen was old ruptured and she was accustomed to sexual intercourse. Two vaginal slides were prepard and handed over to the police. Transfer certificate Ex. P-9 issued by the school in support of her date of birth was seized vide Ex. P-8. Accused was taken into custody and his underwear was seized vide Ex. P-10. 4. After recording the statements of the witnesses under section 161 of the Code of Criminal Procedure and completing the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to establish the guilt of the accused/appellant the prosecution has examined ten witnesses. Statements of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the material appearing against him in the case of the prosecution and pleaded his innocence and false implication in the case. Present appellant has taken a specific defence that the prosecutrix was majaor at the time of incident and he has been falsely implicated in thecrime in question at the instance of the relative of th prsecurix namely Kamalnarayan as he did not succumb to his pressure to marry her. Accused has also examined one witness nameiy Sehtar Ram DW-1 in his defence who has deposed that Hirdayram father of the ^''^s^/\^-^ ^s ^..•p^ Jv<' ^ / prosecutrix and one Kamalnarayan came to his houseand pressurised him to get his son married to the prosecutrix. On refusal, the report was lodged by the father of the prosecutrix. Istgasa Ex. D-5 was prepared which shows the prosecutrix and the accused/appellant left their houses and were living as husband and wife andfor that there was likelihood of breach of peace. 6. After giving opportunity of hearing to the parties the court below has convicted and sentenced the accused/appellant as mentioned above. 7. Heard counsel for the respondenVState and perused the material available on record including thejudgment impugned. 8. From the matrial available on record it appears that accused/ appellant has already completed the sentence imposed on him and only the legality and propriety of conviction part of the judgment is left to be decided. 9. The accused/appellant has raised the ground in the appeal memo that while convicting and sentencing the accused/appellant by the judgmentimpugned the trial Court has not appreciated the facts brought before him and the medical evidence as well as the ocular evidence relating to the age of the prosecutrix and therefore, the judgment impugned suffers from illegality and irregularity. 10. Counsel for the respondent/State submits that on the date of incident prosecutrix Hira (PW-2) was below 16 years of age and she was enticed by the accused/appellant with a view to compel her to marry him and during their stay in a rentat house at Durg, she was subjected to forcible sexual intercourse repeatedly. ?. '^ &^A€ ^.<w^ 11. In order to appreciate the grounds taken by the accused/appellant and the contention of the counsel for the respondent/State 1 examined the evidence of the witnesses examined by the prosecution. Prosecutrix Hira (PW-2) has stated in her evidence that while she was coming with her younger sister Dropti, accused/appellant met her on the way and told that he loved her and also asked her to accompany him and he would marry her. On her refusal, he took out the knife and told herthat ifshe did not go with him he would kill her and her father. Thus he forcibly took her to Durg where they stayed in a rented house for so many days and during their stay at Durg he used to have forcible sexual intercourse with her daily. Dropti Bai (PW-3) has supported the statement of the prosecutrix. Hirdayram (PW-1) father of the prosecutrix has stated in his evidence that on the date of incident when his daughter was missing, he made a search for her and then he came to know that accused/appellant had kidnapped her. According to him the prosecutrix might be of 12 years of age on the date of incident. Kamalnarayan Yadav (PW-4) has also supported the statement of Hirdayram (PW-1). Dr. (Smt.) Jaya Fulhale (PW-5) who examined the prosecutrix has stated that her breasts were fully developed, auxiliary public hair were present, her vaginal easly admitted two fingers and she was accustomed to sexual intercourse. Raju (PW-6) has stated that in his presence one sealed packet was seized from a constable who has admitted that Ex. P-8 is the birth certificate of the prosecutrix which bears his signature and her transfer certificate is Ex. P-9. Hirdayram (PW-1) has stated in paragraph 9 of his cross examination that when he had gone to schoold for the admission of the prosecutrix, Kotwar was also with him and according to the Kotwari Register the date of birth of his daughter was recorded bythe teacher. Statement of Hirdayram regarding recording of date of birth of the prosecutrix in the school register remains unchallenged. Transfer certificateshows that the age of the prosecutrix is ^-^€-^ l' ^ ^•> ^' ^^ ^ y / 10.7.1990 and thus on 19.12.2001 when theincident is alleged to have taken place she was below 16 years of age. 12. In the cross examination of the prosecutrix the accused/appellant has tried to establish that the prosecutrix was a consenting party as no resistence to his alleged act was offered by her. The prosecutrix has categorically stated that the accused/appellant took her away on the point of knife with a promise to marry her. Statement of the prosecutrix is corroborated by the statement of other witnesses and the same is sufficient to draw an inference that accused removed her from her parental shelter and took her to Durg where he repeatedly subjected her to forcible sexual intercourse. The prosecutrix being below the age of 16 years on the date of incident, questionof consent does not arise. 13. After appreciating the evidence available onrecord the trial Court has convicted and sentenced the accused/appellant as mentioned above. On the basis of careful appraisal of the material available on record, 1 do not find any illegality or irregularity inthe judgment impugned warranting interference in appeal. 14. Accordingly, the appeal has no force and therefore it is liable to be dismissed and is hereby dismissed. Judgment ofthe trial Court convicting and sentencing the accused/appellant as mentioned above is maintained. Sd/- T.P. Sharma Judge w