^•^' .••"^•<^;"" ^ -^" \y ^ ^ ^\ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) CRIMINALAPPEALNO. 3c5L7) /2007 APPELLANT flN JAIU Dewaram Shrivas, aged about 25 years, son of Ramvishal Srivas, resident of Jai Bhagwan Gully, P.S. Darri, Tah. Katghora, District Korba (C.G.) VERSUS The State of Chhattisgarh, through , - Police Station - Darri, Distt. Korba(C.G.) CRIMINAL APPEAL UNDER SECTION 374 12} OF THE CODE OF CR1MINAL PROCEDURE/1973 RESPONDENT :^ ^ HSGH COURT OF CHHATTISGARH AT BLLASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 953 of 2007 APPELLANT RESPONDENT VERSUS Dewaram Shrivas State of Chhattisgarh Shri K. A. Ansari learned senior counsel with Shri A. S. Ansari for the appellant. Shri Vivek Sharma PL for respohclent/State. CRIMINALAPPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIIVilNAL PROCEDURE. JUDGMENT (13.07.2010) This appeal is directed against the judgment and order dated 25.09.2007 passed by Additional Sessions Judge, Katghora, Dist. Korba, in Sessions Trial No. 59/2006 convicting the accused/appellant under Sections 376 and 324 IPC and sentencing him to undergo rigorous imprisonment for ten years with fhe of Rs. 2000 and rigorous imprisonment for two year's respectivefy for each offence, plus default stipulation. 2. Case ofthe prosecution in briefis that on 15.03.2006 FIR (Ex.P-12) waslodged by the father of the prosecutrix namely Basant Rai (PW-11) alleging that his neighbours namely Om Prakash Yadav and R. C. Choubey had informed him that his daughter aged about seven years was subjected to forcible sexual intercourse by the accused/appellant and shifted to the hospital by the people of C.I.S.F. colony. It is also alleged that immediately after receiving the information he rushed to the hospital wherethe prosecutrix was found to be in an unconscious condition anc! her clothes were torn. !t is alleged that on regaining consciousriess after about two hours she disclosed the incident describing the manner in which she was made the victim of lust by the accused/appellant. According to the case ofthe prosecution when the prosecutrix was playing in the open ground, accused/appellant caiied her and after gagging mouth took her to an isolated place and committed forcibte sexual intercourse with her. After ^ "%' investigation challan was fited on 07.06.2006 for the offences under sections 376 and 307 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 12 witnesses in support of its case. Statement of the accused/appellant vi/asalso recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted the appellant of the charge under section 307 but convicted and sentenced him as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that in the case in hand the identification parade has not been conducted by the prosecution, in the absence ofwhich the question of the accused having been identified does not arise. According to him looking to the age of the prosecutrix the dock identification of the accused which has been conducted about seven months after the incident cannot be relied upon. He further submits that the prosecutrix has nowhere stated in her statement that the accused/appellant had subjected her to sexual intercourse. Even the medical report does not support the case of the prosecution as the doctor examining the prosecutrix has opined that the injuries caused to her might have been due to fall. He submits that the father of the prosecutrix namely Basat Rai (PW-11) is merely a hearsay witness to whom Jeetpal Singh and Navin Kumar (PW-1 and PW-2 respectively), had informed about the incident. He submits thatsince these aforesaid two witnesses have turned hostile, their statements cannot be relied upon to base appellant's conviction thereon. He submits that the most important witness could be the playmates of the prosecutrix but they have not been examined by the prosecution. He submits that in the FIR the Qffenceis said to have been comrnitted at 12 noon but according to the prosecutrix the incident had taken place at about 8.30-9 a.m. i C... w^ "^ %. •'y^^- '^z ^a i^ -ara3"' 7. On the other hand supporting the impugned judgment counsel for the respondent/State submits that Sanjay Gupta (PW-4) had seen the accused/appellant taking the prosecutrix along with him. He submits that Jeetpal (PW-1)had also seen the accused/appellant running away from the spot and after catching hold he took him to the colony. According to the State counsel, as the appellant made an extra judicial confession before R.P. Choubey (PW-3) who had also caught hold of him, no identification parade is required. He submits that in the Court the prosecutrix has identified the accused/appellant and thus his identity as accused is clearly established in this case. According to the counsel for the respondenVState the neckof the prosecutrix was pressed by the accused/appellant to such an extent that she became unconscious and then after removing her undergarments he committed forcible sexual intercourse with her. He submits that medical reports of the prosecutrix Ex. P-6 and P-8 also support the case of the prosecution. According to the State counsel Dr. Punam Tirki (PW-8) has categorically stated in her evidence that hymen of the prosecutrix was partially ruptured and this could be because of commission of rape. He submits that FSL report Ex. P-22 is positive which shows the presence ofspermatozoa on the underwear ofthe prosecutrix and that of the accused/appellant. He submits that according to the statement of this witness, presence of blood on the underwear of the prosecutrix was also noticed. State counsel submits that Basant Rai (PW- 11) - the father of the prosecutrix has also supported the case of the prosecution stating that as soon as the prosecutrix regained consciousness she had informed him about her sexual exploitation by the accused/appellant. 8. Prosecutrix (PW-7) aged about 9 years has stated in her evidence that on the date of incident when she was playing colours on the occasion of Holi festival, accused/appellant came there, caugjit holdofher hand and i on protest being made by her, he gagged her mouth, took her to some distance, made her lie on the ground, tore off her underwear, pressed her mouth, nail-scratched her neck due to which she was not able to speak and then she became unconscious. Thereafter, according to this witness, the accused/appellant had committed bad work with her. On a query put to her whether she knew the accused/appeltant, she replied that it was Deva. ^x "i •^ .'. 1 ^ i -u- On a further query that how did she know that the name of the accused/appellant was Deva, she replied that her father had informed her so. On yet another query made by the Court whether after removing her undergarments, accused/appellant had inserted his private part into that of her, though her repiy was in negative yet she has stated that her mouth was gagged and neck nail-scratched due to which she had become unconscious.In cross examination, this witness has stated that whatever she stated before Court was not on the instructions of her father but it was the true narration of the incident. Basant Rai (PW-11) - father of the prosecutrix and lodger of the FIR has stated in his evidence that on 15.3.2006 at about 12 noon when the prosecutrix wasenjoying Holi in the vicinity, at about 12 - 12.15 p.m. Om Prakash and R.C. Choubey had informed him that his daughter was subjected to rape by the accused/appellant and shifted to the hospital. According to this witness, when he reached the hospital, prosecutrix was unconscious. He has stated that after about two hours, the prosecutrix regained consciousness and then narrated the incident to him. This witness has described the incident in detail as was informed to him by the prosecutrix. Subsequently, the report was lodged by him and with his consent the prosecutrix was sent for medical examination. In cross examination also, this witness stood firm to what he has stated in the examination-in-chief and has not stated anything new which could help the accused/appellant in any manner whatsoever. Jeetpal Singh (PW-1) ~ the constable in CISF has stated that when he along with one Navin Kumar (PW-2) had gone in search of his son who had gone to play Holi, he saw the accused/appellant running away frpm under the culvert made of big cement pipe and having developed suspicion thereon, he asked his friend to go and see the situation. He has stated that when his friend Navin Kumar peeped inside the culvert, he told him that a girl was lying inside it. This witness has also stated that when the accused/appellant was trying to get across the wall, he and his friend caught hold of him and took him to the colony where the people of the vicinity had gathered. Thereafter, accordingto this witness, the prosecutrix was shifted to the hospital. Though this witness has been declared hostile, he has supported the case of the prosecution on material particulars and has not stated anything to the help ofthe accused/appellant. Navin Kumar (PW-2) has also stated in the same tone and tenor as Jeetpal Singh (PW- ^: ./• ^- ^T"— 1). This witness also though declared hostile by the Court has supported the case of the prosecution on material particulars. R.P. Choubey (PW-3) has stated that on the date of incident the people of the CISF colony had caught hold of the accused/appellant and on being asked by them he had confessed his guilt of having raped the prosecutrix and pleaded forgiveness. Thereafter when he went to the place of incident, he saw the prosecutrix lying inside the culvertand after coming to know of the identity of the girl he had sent Om Prakash to inform her father about the incident. In cross examination also, nothing new has been brought forth by this witness. Sanjay Gupta (PW-4) has stated in his evidence that he had seen the accused/appellant taking the prosecutrix with him towards NTPC road and about half an hour thereafter he came to know about the incident. After hearing commotion, when this witness went to the spot, he saw the accused/appellant in the custody ofthe CISF people where on being asked by him, accused admitted his guilt. Dr. P.R. Kumbhkar (PW-5) who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. Rajesh Kumar Chouhan (PW-6) is the Patwari who had prepared the spot map. Dr. Punam Tirki (PW-8) who had medically examined the prosecutrix has stated that the prosecutrix was in fear and shock and three abrasions were there on her neck in the size of 3 to 4 c.m. According to this witness, hymen of the prosecutrix was partially ruptured and blood was coming out of it. Injury is opined to be fresh in the duration of 1-2 hours. According to this witness, injury on the private part of the prosecutrix could be because of attempt of rape. Injury on neck has been opined to have been caused by nails. In cross examination, this witness has stated that the injury in the hymen could be because of fall and that on the neck because of fight between children. Kunti Devi and Indradev Gupta (PVV-9 and PW-10 respectively) are the witnesses ot seizure and they have supported the case of the prosecution. M.L.\ Dhritlahare (PW-12) is the investigating officer who has also supported the \ case oftheprosecution. \ 9, Closer look to the material available on record in particular the statements of the prosecutrix (PW-7), her father Basant Rai (PW-11), Jeetpal Singh (PW-1), Navin Kumar (PW-2), R.P. Choubey (PW-3) and Sanjay Gupta (PW-4) makes it clear that on the date of incident the .^^sy-:^^ <-.. -6- prosecutrix was physically exploited by the accused/appellant. In the absence of any matehsl brought on record by the defence in favour of the accused/appellant, there is no reason for this Court to disbelieve the statements ofthe aforesaid six witnesses. This Court does not find force in the argument of the counsel for the appellant that the identification parade has not been conducted and therefore, accused/appellant cannot be convicted for commission ofrape. Once the accused/appellant was caught on the spot itself and has also made extra judicial confession before R.P. Choubey (PW-3) and Sanjay Gupta (PW-4), identification parade if not conducted, will not adversely affect the case of the prosecution particularly when in the dock identification the prosecutrix has duly identified the accused/appellant. This Court also does notfind force in the argument that as per the medical report and the statement of Dr. Punam Tirki (PW-8) the hymen of the prosecuthx could be ruptured due to fall because in the case in hand there is specific allegation made by the prosecuthx and other witnesses as well including the doctor medically examining the prosecuthx who hasstated that the hymen of the prosecuthx was ruptured, and only the possibility shown by her in the cross examination regarding the hymen of the prosecutrix being ruptured due to fall as stated in her cross examination will not have any adverse impact on the case of the prosecution. Moreover, no question was put to the prosecuthx whether she had sustained any injury because of fall. This Court also does not find forcein the argument that Jeetpal Singh and Navin Kumar (PW-1 and PW- 2) have been declared hostile and have not supported the case of the prosecution for the reason that though these witnesses have been declared hostile, they have fully supported the case of the prosecution. This apart, FSL report Ex. P-22 showing the presence of spermatozoa and blood on the underwear of the prosecutrix and presence of spermatozoa on the underwear of the appellant also supports the case of the prosecution. 10. After considering the factual scenario depicted as above and keeping in view the pathetic tell-tale of the prosecutrix who has not crossed even a single digit of her age putting a never washable stigma on her entire lifelying ahead by wounding not only her body but the soul as well, ^g5 ^f^'^ s ^ 'OJ "a^ %^-^"^y ^ -7— this Court feels sorry to take a view contrary to one taken by the Court below. 11. Resultantly, the appeal being full of demerits is liable to be dismissed and the judgment impugned worth affirmation. Accordingly, the appeal goes and the judgment under challenge is permitted to remain alive. As the appellant is already behind the bars, no further order regarding his surrender etc. is necessary. 12. Appeal thus dismissed. Sd/- Pritinker Diwaker Judge ./.,.