HIQH CQLRT OF (IHHATTISQARH AT BILASPU§ riminal Annea! Nafi; of ZQ APPELLANT Diiig: Kumar Kurmi 5/0 Kandnmm Kuvmi Aged ubouT 22 vrs We Viii.:—F’uiem W3 Biiaigarh Dis1~i:-&aipur {C33 Ver$u$ RE$PQNQENT 5mm of ChhzIHisgar‘h CRIMINAL APPEAL UNDER $E€T£0N $.74 {2) OF THE CODE OF CRIMTNAL WQCKEDUQEJ‘ 1y/3 (53: Han‘ble Mr. TR éhama; J‘) None appecuue. for ting agpzikxnt Shri Sameer Behar, F’unei iawyer for fhe Sfa'fe/respondenf. JUDQAENT (VaQEEIared h an 19*“ .5 Fabm-a; . “yI, g0 °v Q-9,‘ .,y This appzd, fhe' appalian'!‘ has shallangezi flag iggaiiw and pmprig‘ry 9f ‘ judgmen? of ccnvigfian §q ordar of senfence dated 16.12.2000 imaged by The $econd Addifianal Sass§on§ Judge, BaiQda {ham in wgggsians Trial Na.126/2000 whezraby *he hammed $accmd Addi‘riom! Sessicms Judge after halding fhe appeHcm‘r guih'y far commission of mpg gonvic‘ted for c¢mmi$si0n 0f offence'under sgc‘rion 376 (1) of The Indian Pgnai Code and san‘renced t9 underga kl far- 7. years and m o. fina of Rs.50OI—, in defauli: nf gpayment 9f fine 1’9 further undergc 9.1. far 6 months. 2. , The gudgmen’r is chaHengzd an flag gmund That wi‘thau‘? Theme. being (my iagn! and ciinching evidanm, ‘l’he csur+ haiow has convicfed and gan‘rencad ’l'he, apnrgallanf as nfommentioned and Thereby commi‘rfad an iHagaSHy. 3. Criminal ;&9pec§! No.1078 of .209! has alga been preferrad on bghaH‘ raf The appallcm? which has. bean dismissad Vida judgment dafed 42.2009 as unnecessary. C M 4. Case 9f The prosacufion, in brkf, is Thcrr an 1932000 c1? abouf 8 pm pmsecmrix Laxmibai (i? Bhmi Bai agzd about 16 ygnrs wan? +0 answer fine m” af mfura (easa) m fieJcEl along wifh her sigmr Rew‘ri (PW—2), while, she. was ramming from 'rhe fiaki, 1’he accused game Te ham mughf haid her and dragged fgwards fhe; figld. Ska triad m save harsgif hu? she. failed 1’0 save harseif. Accused dragged in To the, field 9f Chandmm and mmmi'rmd fercgfuw szxuul infermursg wifh hart 5kg 'rried To rasisi‘ hm ihe amused pres$zd her mgufh. Haw sister Qawti cried. for haip. Af‘fer hearing The cries, Jmmhm‘ came ”mare, even cw That time i‘he accusad was cammi‘Hhg sexua! inwrmursz wifh Thg prosacu‘rrix" Jawahar infervaned and Then fha amused fiad away fmm The ghee 9f incident Prasacu'rrix coma 1's her heusa and. narraiad The incidenf To her eldar aunt? Bhuri Bah uncle $ha'trghan, They were having no means of convenience'. fherefem, she ladgad FIR. my +he. $ec9nd day La. 113.2000 a? abou'l: 12.3€J pm. Vida EXP/L Her nylon undargarmem was seizgd vide EXP/3. Bengals were brake?! m the ‘l’ima 0f in‘cidant Bmken bangal$ and bangals nffgr faking from +he hand 9f the pmsecufrlx were. seized vide. ExP/4. PrgSacutrix was gem for medical examlna'rion Vida ExP/éA. $he was examined by Dr. Rajshrge Deadhar‘ (PW-14) Vida EXP/6 and opined fha'r Hyman was rapture arid i'ls margin was irregular. $ha alsa gained fha‘!’ infarcourse baa been cammit‘i‘zd wi'i'lain 72 haurs‘ Two slides of vaginal amear were Taken Acausedkzpmllam was faker! inf!) cugtady and. was sent far mediaal examina'rian. Spa? may was prapared by pamlar-i vida EXP/5 Seized ar'liclgs were. sen? for chemical analysis Vida Ex.P,/B_ Pmssnae of sperm aver undergarmsnt 9f ‘rhs pmsacu‘lrix and accused were canfirmgd yids EXPIH). $‘i’a‘remams af we wiTnessias were rammed angler sscfian m1 m,“ The (kids. (if (Sr-iminal Pmaadure‘ 1973 (heminaf'rer refsrrad To as, “the. Code‘). 5. Afi’ar campletion 91F investiga'rian, charge. sheaf was filed in 'rhz Courf of Addifianal Chief Judicial Magis‘ira‘l‘a, Baloda Bazcir‘ wha in tum cammi‘i‘md the case To the Caurt 9f Sessinns Juagey Raipur, fram where $econd Addii‘ianal Sessions Judgaf Baiogia gazar raeeivezd flag sama an fransfzr far “trial. ¢ Fa In ardex +9 preve tha guil'r of the agapeiian'r/acmsed, Tina pmsemfion has examimd. as many ns 14 wimesses. 5mmmen't of the amusgd!agpei!mf mcordad under Saction §13 of *he (Jada; in which he denied we. circumsmnces agjpaaring (gains? hm. and innacancy and fake impiicmion is claimed. The. amused has adducad m2 dafeme wi‘mass Ramadhar (DW~1} (undea of Ting, accusad) wha has sfmed “that unde Qf we, pmgecu‘l'r‘ix namely Chandumm same 1‘0 him and mid thaw mpg ha$ bean sommi‘Hed wifh his niece and requas'rgd her marriage, of his niece with amused. 0n his refusal Chgdumm thmQtaned him. Ramadhar has Gist) smfed ‘rhm‘ 1'12 ha$ made comglnin'r to fine: pQiiga. 7. Learned 52mm Addifkmg! ESessians Judga afmr nffm-ding appormniw 9f hearing 1’0 Thz parTigs‘ eanwcmci and senmncgd The accu5erjlagapellan‘t aforememmned. 8. I havz hacrd .Shri Sameer Bahar, Pane! lawyer for 'fha 5mm and perusad The appen! petition, Judomen? impugned and racord 0f ‘i'ha iriai ccur‘t 9. In This case the appelizm‘!‘ has been canvic‘rad RI. fer 7 years. He was in cusiody since 14.3.2000 and has campiafed his sentenog iii thta year- 2607. Th2 appeiicm’!‘ has mkgn fhz gmund in his awed 111m- the greseaufrix, was conseming {gar-w. $m'i‘amgm 0f The. praisacui't‘ix and ofhar wimgsses are full 9f aon‘tmdiafion and amissions. Ting prosiecutrix has failed 1‘0 examine 'ihe. witness Harihcir'. $1'a‘ramenf of i’hg pmsacutrix him my? been cormbamfed by fha medicai evidence and accusad has sufficien‘riy cauwd dmih'f an fhe 5mm; m‘ iha groszcu‘i'ion sufficignf far dismrding The ms“ 9f the pmsecmim. 10. Qn me ofher- hand, judgmgn‘? impugnad is suppgrtzd an behaif 9f flag resi9andenflsi’me and submits trim? stigmen? of Laxmi Bai insriiras r canfidence, frusiwgri‘i‘iy and suffiaient far drawing inference. fins? Th2 accused has sommif‘iad sexual intarcciursa. with he!" withau‘f her wiii and cansent 11. In order m cppreciajg the mn'iemims of the gar‘rigs and m chimera? iimg accused in ‘rhe erime in questicm, i hails axamined +he sfatsmerim sf wimgsses‘ \ adducad an behaif of the grusacufim. Laxmi (PW~1) agar} (lbw? 36 yams has \ A. “4 wm ‘ £9 dgpoxd. in her avidance that? ed' The. *ime 9f incident sha was gaming alang with her sister Rew’ti Wham they were gmssing mar The fizid of Chandmmi uasusad mma and draggad her info fine fieid of Chandrami $he cried far heip. Amused :Hnmwn hgr in fhe. fieid and affar ramming ha!" undarwmr- mmmiffgd sexual interco’iirse. wifh her. She crigd far help, 'ihezn $arpanch-Jawahar came who) mugh‘i bald The em" 9f the. accu$ad and ask Thai what he is doing, Than accused fled away fmm thg spot Prnsecu'trix came To viiiaga alnng wifh Jawahar mid. narrafed the incidani' m her alder gun? and lgdgzd The repay-'3' Vida EXP/1 on nexT day. Her under-garment was seizedi Rewm'i (PW-2) agad. abeut 9-1Q years. has depesgd in her- evidgnce mm whiie she was Gaming. wifh Laxmi, ascusgd. came and draggzd Laxmi, Then sha started weeping. She has aisc daggased mart the accused undressed he!" sister and rade Qver he!" sisfzr. $he cried finer! 5amanch camé and caugh'i' hoid ‘rhe ear 9f ihe accuszd than accused fled away from ‘iha spat. Jawahar Laii (PW-3) has also depased in hi$ evidence The? he. heerd We sound 9f cry 0f girl, Then he went towards The spat mufinuslyi Rewm'i was weeping and accused after thawing The grasecuTrix in The fieidg was pulling her- legs and hands. He caught hgld The accused and tanked Then accused fled away. Lnxmi Tnld her Thnir amused has Torn her ninThes. Phul Bai (PW—4), gmnd—mnTher ef Lnxmi Bcii has also depnsed in her evidense The'i' The accused has commiti'ecl rape wiTh Lnxmii $hnTrnghnn (PW—9) hes sTnTecl in his evide.ce That he came To know Thn‘r The accused hes commiTTeci sexual inTereeurse with Lexmi Bei. 12. DriRnvishree Deadher (?W-14) has sTnTed in her evidence ThnT en 14.3.2090 she has examined Lexmi Bai. Her hymen was rapture and margin was irreguleri Gpening of vagina was smail. Hymen was Tarn wiThin 3-4 deys. $lides were Taken, Hyman was Torn as a reeulT of infercoursev In her arose— examinaTien, ehe has snecifieaiiy sTaTed Thai ehe has nnT naTieecl any external injury and if The girl is dragged Then ingury is aiwnye noT neeeseary‘ hymen may be raphire ae a resulT of cyciing. 13. Ramadhar (aw-l.) (uncie 9f The amueed) hag depee._d in hi5 evidence ThaT uncle af The preseeu'i'rix Chanduram same Ta him and Told ThaT rape has ¢ bean gammit‘fgd with hgr niece. and reque5md fm‘ marringz. a“? The gauged wM: fha prosacufrix, bu? in his mas-examination be has admitted. that £handumm came 1’9 him one man‘i‘h beforg fhe alieged cammissian 9f rage and he is unciz Qf the prosecu'rrix. He has admi‘hfed in his cros5—examimfion that? he has made. a wriT'tQn campleint "m fhe palice, bu? ha da no? knnw wha? has been written in Tha complaint. I? shnws Thu? he has deposed as defence witness oniy m defend and save the amused, Defence has cross-examined Laxmi (PW—1) in data”. In her demii cross-examiha‘rinh, she has $mfeai fhm' when the amused. has fried to remove her doth than she fried; 1'0 mye heweif and accused hag remavad her undergarmen'r. she has denied in yam-21 0f her cross-axamina'riah that? he had gone fair (me/a) wi‘rh 1'he amused and Diiip has Taken Twa hhomgmtnhs and letters. $he has aisa daniad The suggashm 9f prépasa! of marriage and gist; denied The suggesticm :Phm' "the accused has denied the hmpasa! e15 marriage, therefore, she has falsely impliccrted him. 5he has admi'ffed in pem~27 a? her cross-examinatian that a1- the ‘i'ime 0f commission of rape eccugd has pressed. her breast and fha? was painful ‘ro her. Pam-3 9f her evidence shews The“? hie accused has mmmi‘H’ed farcefuliy intercaurse wi‘rh her. Her sfa‘remen'i' is cerrabom‘red by the stafemeh'!’ of Rem-i (PW—2), Jawahar La! (PW-3) and Phui Bai (PW-4) and aisa carroharai‘ed by The medicai evidence af Drkajshree Deadhar (PW-14). $1-afemen'r of The prasecutrix inspires confidence irustwori‘hy and sufficien‘i far drawing inference fha? ihe accused has commii’ted sexual in'rerecurse wi‘rh prasecuirix against her wiii and consent é 14. After appreciating The evidence avaiiabie an regard, fhe caur't belaw has semenced fine. aepeiiam as aferemen'rioned. The sour? beiow has rightiy canvic‘i’ed and senfenced the appeiiani: I an net fihd any iiiegaii'ry in the Judgment impugned. 15, Far the faregeing reasans, ‘rhe apnea! hes mi farce, same is iiahle in be dismissed and it is hereby dismissed. T. P. Sharma Judge Sd/—