.HIGH.<^tCT-OKCH:MATTlS<©WttagliMlgfflf^iS|U18g|| Criniinal ADDealNo.2886f2005 APFELLANT: RESPON.DENT: Ganesh @ Beg \ Versus State of Chhattisgarh th PostforDrotTouncemeHtbfiudainenton17I"Julv.2009 il! M Sd/- T.P.Shasama Judge %. '; E . s-''yt',.;l^.!=>feiff^ fi:.i i-ilGHJSOyRTOFGHHATTISGARH.BILASPUR ARPELLANT/: (Accused) (IriJail) RESP0NDENT: Criminal Abbeal No.288 of2005 Ganesh @ Beg, S/6 Sohan Khanjar, aged about 47 years, R/o Village ^ Ratanpur, Police Station Kapu, Distt. Raigarh(C.G.) Versus Stgte of Chhattisgarh, Thrptigh District - Magistrate, Raigarh (C.Gi^ {Criminal appeal under Section 374 (2) bf the Code of Criminal Procedure, •1973} ' , . : !; '..Y ;';;f:' ' :; Present: -y; M Mr.S.K. Dadsena, eounselfortheappellant. Mr. Rajendra TriRiathi, Panel Lavi/yer fbr the State/respondent Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 17th July, 2009) 1. This jail appeal is diFected against the judgment of eonviction and order of sentence dated 22-2-2Q05 passed by the 4* Additiohal SessiQns Judge (F.T.C.), Raigarh inSessionsTrialNo. 115/2004, whereby & whereunder learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence under Section 376 of the I.P.C., sentenced him to undergo rigorous imprisonmentfortenyeaFS and pay fine of Rs.100/-, in defaylt of payment offinetofurtherundergo rigorous imprisohment for orie inonth. 2. Judgment is challenged on the ground that without any credibleand reliable evidence the Court below has conviGted & seritericed the appellant as aforementioned. 3. I have heard learned counsel (gr the parties and perused the impugned judgment as also the material available on record. 4. Case of the prosecution, in brief, -is that mother bf tMe proseGutrix namely, Patango Bai was residing with the aGGused/appellantsafter ttie death of her first husband. ~',The prosecutrix is alsa Tesiding with his motherand thepresentaecused/appellant.;;Qn^ 30-^-2004 th&'accused^ appellant took the prosecutrixto forest where th^ andtheappellant|tmmmittedsexyal;intgn;our^w •—"^-Ki^^^ssB.y?^^^ •v' TliSi'eaftei-, fhey carrae 10 (heiFtiouse and again the aceused eQmmitted sexualintercQursewithtHepFosecytrixatnight.Theprosec;utrixnari"ated thelhGident tohermotherandlastly shelodged thereporton 31-5-20D4 after ohe month of the incident vide Ex.P-3. The prosecutrix was examined by Dr. B. Toppo (PW-9) vide Ex.P-7. Her seGondary sexual charaeterswerewe]] developed, redness & tender was found over her private part, hymen was old torn and vagina admits two fingers easily. Accordjng to his ppinion, sexual intercourse has been_committed with the prQsecutrix. He advised for ossifiGation test of the prosecutrix for ascertaining herage. Ossification testofthe proseeutrix was conducted by Dr, P.D. Tandon (PW-7) vide Ex.P-6 whohas ascertained the age of ;the prosecutrix as 13 years. rThe accused was examined by Dr. B.L. Bhagat(PW-l) vide Ex.P-2 and he was found capable to commitsexual intercourse. Vaginal sides were taken at the time of examination of the prosecutrix and seized vide Ex.P-8. Undergarment of the accused was seized vide Ex.P-10. Spot map was prepared vide Exs.P-11 & P-T2, Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigatidn, charge sheet was filed befor& the Judicjal Magistrate First Class, Dharamjaigarh who in turn CQrniTiitted the case to the Coyrt of Sessions, Raigarh from where learned 4tt Additiohal SessiQns Judge (F.T.C.), Raigarh received the case on transferfor trial. 5. Inorder to provethe guilt ofthe accused, the prosecution hasexamined as many as fifteen witnesses. Statement of the appellant was recorded under Section 313 Ofthe Cr.P.C. in which he denied the Gircumstances appearing against him, pleaded innocenee and false implication. After affording opportunity of hearing to the parties, learned Additional Sessions Judge acquitted co-accused Jagatram Banjara of the charge under Section 376 (2) (g) of the I.P.C. and convicted & sentenced the appellantin theaforesaid mann^r; 6. Leamed counsel fpr the appellant argued that viBtually the prosecutrix was daughter of the appellantand it was not possibleforhiimtoGommit any offence upon his daughter. Previously, rhother of th^ prosecutrix was residing with 'the appeTlant and after the dispute^jshe?teft;the appellant along with th^prQsecutrix and with a vjew to im|licafe fhe appellant falsely, this false report has been |Qd9ea^;aNtie^ihstanG& of mother of the prosecytrix. F.I.R. was loicigecl after one morith of the :^^-^.,.,^ 3?S^3^S'^3?.^?;^^^ A !i| - ajleged incident. Delay in lodgjng the F.I.R., has hot been explained prQperly. THe prQseeutrixand her mother havenot syppc>rted thecase oftheprosecutionandeyKlenceQftheprbsecytionwitnessesarefullof pmisSions & conti'adiGtions, not safeto relyupon. •..- :;\1 -•: '. . ... :"''. : - ; ..1- .--1 ... ' -1.:.... 7. On ttie other hand, leamea counsel apRearing Qn behalf of the State/ respondent suppdrted the impugned jydgment and submitted that the appellant who was in ttie ppsition of father of the prosecutrix and who was in dominating pQSition.has misusgd hjs posjtion and eommitted rape with the minor proseeutrix, but lastly^he proseRutriX has reppH^ matter; Evictence aclduced oh behalf of the proseGution is sufficiehtfor convicting & sentencing the pr^sentappellant. 8; The prosecution hias shQWn the age of the proseGutrix as below 16 years. In orderto prove the age oftKe prosecutrix, the prosecutjon has examined Dr. P.D. Tandon (PW-7)who has ConduGtecl ossification test ofthe prosecutrix and on the basjs of ossification test, he has assessed -the ageoftheprosecutrixas 13 yearsvide Ex.P-6. During thecoyrseof examinatiQn ofthe prosecutrix, the Gburt has assessed her age as ten years. Except the age ascertained bypssification test, the prosecution has not adduced any evidence to prove tfie age of the prosecutrixand even if has not deposed anything to show that no other document namely birth certificate, sehool certificate was available. Even motherof the prosecutrix Has not stated the age of the prosecutrix. In the case of Jaya IVIala v. Home Secretary, Goivernment of Jammu & Kashmir and others {(1982) 2 SCC 538}, the Apex Court has held that ttiere may b6 variation 6f two years oh either side ih the age ascertaihed by ossification test. Therefore, only in the light of ossification test and possible variation, it is difficulfto hold theit atthe time ofincident; ageof the victim/proseGutrix was below 16 years. 9. In order to conhect the app^lant with the crime in questjon, the prosecution has examined tlie presecutrix (PW-3) who has deposed Ihat he was residing with the aeeused/appellant, bn tHe-fateful day the accused took her to fprestand aifter collectiog fuel wbod, heipressed her breasts and remoyed hier clptll^s, But she has fdFgotten tHat and afterwards the ac&used lay;oy6r her. Mowever, she has notfstated as to whether the accused has committed any otHer ^t or:®t. Shetias^^^^a^ „ deposed that when they eame taaek to their^Rouse, ttie accysed a||aiin ~.-^..-' f1 'committed the same^ctwith her, however,shehasnot^d^ ctftReaaiusedSpecifiGally.^ Wheri shewas asked bythe CouFt.she has ? admittetf that the aceused has inserted his male organ into her private part andalso stated that the appellanthaslhreatened her. \ • ^ : ; : ' • ! ^' 10,Patsin§o Bai (PW-15), mother ofthe prosecutrix, has deposed that she was residingwith^ accused as his wife along with her daughter, the aeGused cornmitted rapewit^ her daughter ih the forest and her daughter hasnarrated the inciderifto herwhereupon she riarrated the jncident to Tedku & Chamru. They left the house of the accused and went td the tiouse of her sister Itwari at yillage Kumhichua. Ttie accusey came to the houseof her sisterandasgaulted her sister. 11. Itwari Bai (PW-5), sister of Patango Bai, has notsupported the ease of the prosecution, but her tiusband TikSm Sai (PW-4) has deposedin his evidenee that one day the prosecutrix came fo his house an the^ccused has committed miSGhigfwith her and she will not stay with the accused. Sukundri Bai (PW-6), another wife of Tikam Saj, has deposed that the accused has kept the prosecutrix as hiswife. 12. According to the eyidence of Dr. B. Toppb (PW-9), sexual ihtercourse has been cQmmitted upon the prosecutrix, her hymen was old torn, vagina actmits two fingers, and redness & tenderness was also present on her private part. 13. In her cross-examination, the prosecutrix (PW-3) has admitted that the accused has assaulted her mother and caused fracture of hand. She has denied the suggestion that she has gjven false statement at the instanee of Itwarj Bai. Patango Bai (PW-15), motheroftlie proseGytrix, has admitted in hercross-examination that on the fateful .dayatflight her daughter has narrated the jncident to her whereupon she left the house ofthe accused along with her daughter. •% "^ ! ' ,•' ' ' ':.: ! .-;:. ,' .. W.AGC^rding to the medical evidence, the prosecutrix was subjected to sexual intercourse.i The proseGutrix and her mother have left the house of the appellant after commission of ttie-alleged offence. | Aceording ta the ease ofthe prosecution;1he7appellant Mas committed the ciffence^ih ftemonthofApril, 2004^buttheprQSgcutrixhaslQdgeythire^ffion'3^^^ 5-2004afterone rnonth6ftheincident.Thepreseeutri^(PVV-3)t^Heri mother Patango Bai (PW-15) have specifteally dep@se^t|iat tl-iey were ^^ residjngwiththeaRpellafifaftertheclgalhoflhehusbandqfPatarigoBai ^' ^' I.S :li and Patango Bai was residing with the appellant as his wife. Tlie prosecutrixisnotrealdaughterQftheappellant. is.TlTeF.I.R. has been lodged afterone month of ttie alleged incident. The prpsecution is requjred tp explain the delay in lodging tlie F.I.R. F.I.R. is 1\ '' . • '. "'"' " ' . ' :.: 1 a vital piece 6f evidence and the prosecution is required to prove this ;d6cument honestly. iHcaseofrape byteacheron his student, theApex Court has held in the case of State of Himachal Pradesh v. Shree Kant SMekari(A(R 2004 SC 4484) thgtdelayisofno signilTCance.lncaseaf rape prompt todging of F.I.R. is normally not possible, after considering trytb, facts and effect 6f the incident, the proseeutrix or her relatises iQdgetheF.I.R. I 16. tn-the present case, the prosecutrix was living with the aeGused as his daughter^ the accysed was in dominating position and by misusing his position, he has eommitted the aforesaid offence, although after the commissionofoffenee,the prosecutrix & her mother have leftthe house of the appellant and went to the house of sister of mother of the prosecutrjx where also the accused went and assaulted the sister of mother of the prosecutrix. In these circumstances, delay in lodging the F.I.R. was reasonable and same isnot fatal to the prOsecution. 17. Qn being asked by the Court the prosecutrix has admitted that the appellant has inserted his male organ over her private part and also threatened her. The minor prosecutrixwas residing with the appellant who was in positiQn of her father. Her evidence was recorded aftereight months of the incident, therefore, minor discrepaneies, omissions & Gontradictionsare natural. The minor girl residirig with theappellant was having nooccasion to implicate the accused falsely, who hasgiven shelter to her. But her evidence shows that the present appellant has misused his position aod eommitted sexual intercourse &n the prosecutrix. The prosecutrix^has not stated anything that she was consenting party. The accused has also not suggested the fact of consent. Leaving the house of the appellant after the commission of offenee afso supports that the case was oot of consent; Evidence ofthe prosecutrix (PW-3) and h^r hnother Patango Bai (PW-15) ihspires >confidence and js sufficient f6r drawing inference thatthe appellant has cpmmitted sexual intercourse on the prosecutrix without her will and consent. ^' i.J—.-!— r * Soma iS.After appreciating fhe evidgnce available on record, learned^dditiona^ Sessions Judge has convicted and senteneed the ap|3e|laht as aforementioned. Cbnviction of the appellant under Section 376 6f ttie I.P.C. is based on legal, clinching & reliable evidenceand the same is sustainable underthe leiw. i9.As regaFds the question of sentehce, the appellant who was in dominating pdsition has committed rape upon the prosecutrix i.e. his daughter who was residing with him. The appellant deserves no sympathy and sentence of ten years R.l. & fine of Rs.100/- imposed upon him arejustand proper. V, 20.1n thefactsandcircumstance^oftheGase.ldo notfind anysubstance in the appeal,same is liable to be dismissed and it is hereby dismissed. SdA . T.P.ShaSt'jma Judge ^,.