HiGH_CQURTQF_CHHATriSGARHATBiLASPUR \ DiVISiONJBENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR. JJ •y V. Appellant (In Jai!) Respondent Criminal Aooeat No.887 of 2008 Kham;,,Singh, S/o. 1-lajarilat Kumhar, Aged 1'about 42 years, R/6. Village Faroda; P.S. Pithora, District Mahasamund (C.G.) Versus State of Chhattisgarh, Through Police Station Pithora, Dist, Mahasamund (C.G.) (CRMINAL APPEAL UNDER SECTION 374 OF THE Cr.P.C.) Mr.B.D.Badgaiya, counsel for the appellant. Mrs.Madhunisha Slngh, Panel Lawyer forthe Stat&/respQn(lent JUi^MENT (Passed on 8'" November, 201 1) T.P.Sharma, J.:- 1. Challenge in this appea! is to the judgment of conviction & order df ssntence dated 27.2.2006 passed by the Second Addstionai Sessions Judge, Mahasamund, sn Sessions Trial No.^9/2004, wherdsy & whereundsr ieamed Second Addrtionai Sessions Judge after hoidir^ the appeilant guilty for commisston of rape with the prosecutrix (PW-2) (name not mentioned), whowas mentaiiy retarded, convteted him under Section 376 ofthe I.P.C. and sentenced to undergo imprisonment for life and fine of Rg.5000/-, in defauit of payment of fine to further undergo R.i. foroneyear. -^ ^ 2. Conviction is impugned on the ground that without there being any iota of evidsnce, the trial Court has convicted S sentenced the appeliant as aforemsntioned and ihereby committed ill^ality. \3. As per case of the prosecutron, the prosecutrix (PW-2) was menta'iiy retarded. On 15.8.2004 ^ about 12 at noon she was present along with l^. ite- her cattle in the field, the appeliant came near the prosecutrix and took \ .. . - „- ' . r' .'.' a'":'" '''"' '-"'-'.:' • ?:_"""::':''." •• her to forest, she cried for heip. After causing injury and giving tfirealen he committed intercourse with the prosecutrix against her wBt and consent. The prosecutrix went back to her house and informed ths incident to her parents andwilagers andiodged the F.!:R. vide Ex.P/3 on 16.8.2004 at about 6.30. Her sari was seized vide Ex.P/4. After oUainir^ consent, she was sent for medical examination. She was examined by Dr.Tara Agrawal (PW-5) vide E^P/5 and found followngs^nptoms- (i) Shewasmentallyi!!.; ' (ii) Two abrasions over both heal of 3 cm. x 4 cm. and 4 cm. x 4 cm. (iii) Multipie abrasions over both caif. (iv) Hymen intact, swollen and tendemess presait red incoiour, vagina admits oniy iittle fffiger with difficulty. Two slides of vaginal smear were taken. Pubic hairs were cut. Slides and pubtlc hairs were packed separately. As per opinion of Dr.Tara Agrawal (PW-5), somebody has tried to commit sexua! jntercourse with the prcsecutrix. Her sari was also examined vrftich was stainedwith semen vide Ex.P/6. Spot mapwas prepared by investigating ofRcer vide Ex.P/4. Medical certjficate was obtainsd from the doctor vlde Ex.P/10. Seized articies were sent for chemical examination vide Ex.P/13and presencs of spermatozoa was confirmeci on slides of vaginal smear of the prosecutrix vide Ex.P/15. 4. Statements of the witnesses were recorded under Section 161 of the Codeof Crimina! Procedure, 1973 (forshort 'Code') and after completion of invsstigation, charge sheet was fited in the Court of Chief Judida! Magistrate, Mahasamund, who in tum committed the case to fhe Court of Sessions, Raipur, from where the learqed Second Addltionat Sessions Judge, Mahasamund,'reGeived the case^ontransfer fortriai. 5. In order to prove the guiitof the aecused/appellant, the pr(%ecution has examined as many as seven witnesses. Statement of the accused/appeilant was recorded underSection 313 ofthe Ccxje, in which he -denied the circumstances appearing against him and pteaded jnnocence and fatse implioation in the crime in question. The Court has •l^' also examined Court witnessss Klshore Kumar, Lubey Prasad, \ .. : : -...'» , - X ' Mansharam and Chandrahas. Court witness Nshore Kumar has deposed in his evidence that the appeliant has taken the prosecutrix towards ths forest. Other witnesses have deposed about factum of meeting and interrogation by panchayat. 6. After providing opportunity of hearing to the parties, ieamed Second Additionai Sessions Judge, l^ahasamund convicted & isentsnced the appellant as aforemsntioned. tex 7. We have hearci leamed coun^! for the partie®,perused the judgment impugned and record of the triai Court. 8. Learned counsel for the appeilant vehemently argued thst as percase of the prosecufion, the pro^cutrbc was woman of retarded brain.therefore; in abssnceof corroboration hsr evidence is not sufficient to reiy. As per medica! evidence, this maybe the cass of attempt to commit rape, but not the case of rape. In absence of any corroboration, evidence of the prosecutrix (PW-2) is not sufficient for conviction oftheappellani. 9. On the other hand, iearned Pane! Lawyer for the State/respondent opposed the appeai and argued that presence of the prosecutrix (PW-2) has been substantialiy corroborated by the F.i.R. lodged by her and evidence of CoUrt witness Kishore Kumar. After appreciating the evidence, the triai Court has rightiy convicted and sentenced the appellant as aforementioned. 10.1norder to appreciate ths ai^umerrts advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution and evidence of ffie witnesses ©(aminedby the Court. 11 .As per evidence of the prosecutrix (P.W-2), at the time of commission of offence she was present in the fieltf along with her cattle, the appeilant forcefutly took her and after removing her ctothes he commttted intercourse with her, he a!so assauited the prosecutrix and thereafter he fled from the spot, then she Game back to her hou^ and informKl the incident to her parents. In her cross-examination she has admitted the factum of meeting. In para 9 she has admitted that she received injuries by horn.of builock upon her private part. She has also admitted in para .-ft" 1^'f 10 of her cross-examination that she was not inclined to lodge the F.I.R. against the appellant. Gangaram (PW-3) had substantiatly corroborated the evidence of the prosecutrix before whom the proseGutrix has informed the vills^ers, but on bsing askedthe appeiiant has dsnied the commission of rape. 12.As per evidence of Court witness roshore Kumar, he was also present near the spot before whom the gppellant hss taken prosecutrix towards ^, ! ; . , :~ .T'''/";" .'1 ~ •.:' .. ' Torest, although his statement p&s not been recorded by investigating officer under Section 161 of the Code. There are some confrcriictions and omissions in theevidence ofthe prosecutrix (PW-2), but initiaiiy her evidence finds corroboration from F.i.R. lodged by her. As per medicat evidence and evidence of Dr.Tara Agrawa! (PW-5), hymen wasswoilen and vagina admits oniy little finger with difficulty. Ttere is iaceration on both sides of hymert She has taken two siides of vagireil smear.As per report of F.S.L. Ex.P/15, spermatozoa was present in slides of vaginat smear, although as per evidence of Dr.Tara Agrawa! (PW-5), somebcaiy has tried to commit intercourse with the prosecutrix but slngie evidence of the prosecutrbc, presence of spermatozoa in vaginai smear, tendemess, swoilen, redness of hymen and laceratton of hymen clearly reveal that this is the case of incomplete intercourse and partiai penetration, whicb i§sufficient to constitute the intercourse and rape in terms ofSection 375 ofthe i.P.C. 13 Aforesaid evidence are sufficient for drawing interference that oniy the appeitant has committed rape with the prosecutrix who was womanof retarded brain. After appreclating the evidence available on rscord, the trial Court has convicted and sentenced the appeliant under Section 376 of the S.P.C. and sentenced to undergo imprisonment for life aid fine of Rs.5000/-. ..< u While sentencing the appeliant imprisonment for tife, the trial Court has considered the previous antecedent of the appellant on the basis of entering criminai registration register v/hich shows that previously the appetlant has committed rape with another woman in the year 1997, but same (ias not been proved by cdgent evidence. Even otherwise it oannot be the around for imposing sentence imprisonment Tor tife. While fS«tf:f- "»., convicting ihe appell^ant the trial Couri: has not committed any Uiegaiity, but by sentencing the appellant the triai Court has committed Blegaiity warranting interference. 15.For the foregoing reasons, the appeai is partly aiiowed. Conviction of the appeiiant under Section 376 of the i.P.C. is hereby maintajned but instead of sentence of imprisonment for life and Rne of Rs.5000/-, fhe appeilant is hereby sentenc^i R.l. for ten yeare and fine of Rs.5000/-, in ^ .. . ~ _ . .' : :^: " •-1;-'-^ : —»'' default of payment of fine tdfurther undergo R.i. for one year. LSdA : ' T.P. Sharma Judge / Sd/- R.N. Chandrakar Judge ^ .•< u