9?; HIGH’COURT QF CHHATTISGARH, BILAS£UR Criminal Aggeal No.3“ of 2001 {Criminal appea! under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: ‘ “Mr. Raj Kumar Gupta, counsei for the appeuant. Mr. A‘shish Gupta, Pane! Lawyer for the Stateirespondent. ‘ ‘ Single Bench: Han’ble Mr. T.P. Shanna. J ORAL JUDGMENT. Delivered on 8t“ Semember. 20Q8) 1. This appeal is directed against the judgment of conviction and order of sentence dated 4—7-2001 passed by the Special Judge (Atrocities). Raipur in Sessions Trial No.394/2000, whereby learned Special Judge after holding the accused/appellant guilty for commission of rape upon a child aged 4years, convicted him under’Section 376 of the l.P.C. and sentenced him to undergo R.l. for ten years & pay a fine of Rs.5,006I—, in default of payment of fine to further undergo R.l. for six months. The amount of tine was directed to be paid to the prosecutrix as compensation under Section 357 of the Cr.P.C. 2. The judgment is challenged on the ground that without any medicat and ocular evidence, learned trial Court has convicted and sentenced the appellant 3. l have heard learned counsel for the parties and perused the impugned é; judgment as also the record of the trial Court. 4. Case of the prosecution, in brief, is that ohm-92000 at about 9-10 am. at Village, Patharree, Police Station Chhura, the prosecutrix aged about 4 years was going with her mother towards the hand pump for fetching water, the appellant called her on the pretext that he will provide coma to ( APPELLANT: (In Jail) Johatram, Slo Mangal Singh Bariha, aged 22 years, Rio Patharree, Chhura, Distt. Raipur (C.G.) Versus RESPONDENT: 'State of Chhattisgarh 25 her and took her inside his room, and committed sexual, intercourse with her. Her undergarments were stained with bioodand there was'sweliing 1 on her private parts. The prosecutrix has narrated, the incident to her j mother Smt. Kumari Bai (PW—2) who in turn told the incident to her eider ‘ brother, her husband and elder sister-in—law; They had also seen the i private part of the prosecutrix. Thereafter, she also informed the head of i the viiiage and uitimately, she has iodged the fira information repert on ‘ 21-9-2000 vide EXP-5. 5.: The prosecutrix was sent for medicai examination, but she was under fear and had not cooperated with the doctor for examination as a result of which her examination was not possible, same thing was reccrded on 23-9—2000 by Dr. A. Gapta vide Exs.Clj 8. 6/2. Uttimateiy, the prosecutrix was sent to Medical. College Hospital, Raipur where she was exainined by Dr. Tripti Nagaria (PW.9) who prepared report EXP-14 on 23-9-2000. The ageof the ,prosecutrtx was ascertainedas four years. No injury was found over her body or private part, hymen was found in fact, vaginal. slides¢were prepared and same were seized vide EXP-6. Her undenrvear was seized vide EXP-9; 6. The appellant was also examined by the doctor and he was found capable of committing sexual intercourse vide EXP-1‘5. His: undenNear was seized vide Ex.P-10. Seized articles were sent to Forensic Science Laboratory, Raipur vide EXP-11. Statements of the witnesses were recorded and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate, First Class, Gariaband, who in turn, committed the case to the Court of Sessions, from where learned Special Judgereceived the case on transfer for trial. 7. ln order to establish the guilt of the appellant, the prosecution has i examined as many as ten witnesses. Statement of the appeilant was recorded under- Section 313 of the Cr.P.C. in which he denied the circumstances appearing, against him, pleaded innocence and false implication. 8. Learned trial Court has examined Dr. Alka Gupta, Gynecologist, as Court witness, before whom firstly, the prosecutrix was produced for examination. She has stated in her evidence that she tried to examine (\ 3 the body of the prosecutrix, the prosecutrix was'under. fear and she has not cooperated. She has prepared the report Exs.C—1 & C-2. 9.‘Leamed counsel for the appeuant argued that the evidence of the 1prosecutrix has not been supported by medical evidence; The incident took place at about 9-10 am. on 19-9-2000, but no independent witness has seen the incident, or supported the case of the prosecution. In the Labsence of any medical, evidence, the appellant is not liabte. for ‘ conviction under Section 376 of the l.P.C. 1Q.On the other hand, the judgment ts supported on behalf of the Statet ' ‘respondent and it is argued that the appellant has committed rape on a. é'hiid who is aged 4 years and the prosecution has proved its case beyond all reasonable doubts. 11‘.ln drder to prove guilt against the appellant, the prosecution is required : to establish that ‘ a. at the time of incident the prosecutrix (PW—3) was aged about four years; and b. the appeltant has committed sexual intercourse with the prosecutrix. 12.ln order to connect the appellant with the crime in question, the prosecution has adduced ocular and medical evidence. The prosecutrix (PW-3), aged 4 “é years at the time of he: examination, has categorically stated in her evidence that when she was, going with her mother for fetching water, she was calledby the appellant on the pretenthat he will provide corns to her, he took her inside the room and inserted her male organ in her private part. She has further stated that the appellant has also told her that she should not tell about this incident to her mother & father. The prosecutrix has indicated as to on which part the appellant has inserted her male organ. She has also stated that her underwear was stained with blood and bleeding was coming from her private part. She has narrated the incident to her mother. \\\ 13.Smt. Kumari Bai (PW—2), mother of the ptosecutrix, has stated in her evidence that on the fateful day she was going to fetch water with her daughter, her"daughter was called by the appellant for providing come, on which her daughter had gone to the house of the appellant, at that l ;5, l \ time, the appeliant was aione in his house, while she was coming back after fetching water from hand pump, sheaskedher daughter for going back, whereupon therappellant told her the prosecutrix wiii come atter some time after eating the ooms and after tworhours, the prosecutrix came to her, at that time, she was weeping and shes told her that the appeiiant has inserted her male organ in her private part, she was having pain over there. She saw. her private part, there was sweiiing over there and blood was found on her undergarment; She narrated the incident to her husband’s elder brother 8. his wife. When her husband came, she told the incident to him also? They narrated the incident to the head of the village, on which the head of the village told them to wait for mother ‘a’father of the appellant, but mother & father of the appellant did not turn up and they lodged, the report. Her eVidence is supported by the evidence, of ‘her husband Raviram (PW-1), smt. Harra Bai (PW-4) & Prem Singh (PW-7). 14.ln her cross-examination, the prosecutrix has specifically stated that the appellant has committed sexual intercourse wim her on the pretext of providing corns to her and at the time of incident, except the appellant, no body was present there. Smt. Kumari Bai (PW-2) has supported the evidence of the prosecutrix and even her cross-examination also. Defence has cross-examined Raviram (PW-1), Smt. Kumari Bai (PW-2) & the prosecutrix (PW-3) at length, but it has not been able to elicit anything to discredit their testimony relating to commission of sexual intercourse by the appellant with the prosecutrix. 15.Dr. Tripti Nagaria (PW-9) has stated in her evidence that the hymen of the prosecutrix was intact and there was no bleeding or discharge.” She has admitted in para 3 of her evidencethat five days after the incident, swelling will be reduced, that will be seen at the time of examination and , there would be no bleeding after five days. 16.The alleged intercourse has been committed upon a girl aged about 4 years- Her hymen was intact. As has been held ln Modi’s Medical Jurisprudence and Toxicology, in case of rape on small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. if considerable violence is used, there is often laceration of the fourchette and the perineum. g @ 17.ln the case of sexual intercourse with children of teenage Le. 4—5 years, the hymen would not be usually ruptured, but there may be congestion and inflammation. For commission of rape as defined under Section 375 of the l.P.C., slight penetration is sufficient to constitute the offence of rape. 18.Evidence of the prosecutrix (PW-3) is supported by the evidence of her Emother Smt. Kumari Bat (PW-2) &,father Ravlram (PW-1) as also by the ‘medical evidence and the evidence of Smt. Harra Bai (PW-4) & Prem Singh (PW-7) which inspires confidence and same is trustworthy. This is sufficient for drawing inference that the appellant has inserted his male organ in private part of the prosecutrix. Penetration may be slightest as a result of which her private, part was inflamed and there was bieeding from the private part. Thus, the appellant has committed sexual A intercourse with the prosecutrix. 19.The evidence adduced on behalf of the prosecution is sufficient to draw 1 inference that the appellant has committed rape on the prosecutrix. After appreciating the evidence available. on record, teamed triat Court has convicted the appetlant. under Section 376 of the i.P.C. and sentenced him in the aforesaid manner. Conviction of the appellant is based on credible and reliable evidence. 20.As regards the question of sentence, the appellant was aged about 22 years at the time of commission of the offence and he has committed rape on a child of 4 years age. This is a very heinous offence and it is shocking to the judicial conscience. The appellant does not deserve any sympathy. 21.ln the result, there is no merit in the appeal, same is liable to be dismissed and it is hereby dismissed. Sdl- T. P. Sharma Judge $oma