^^ HieH COURT QP CHH^mS^RH AT BILASPUR (SB: Hon'bleMr. T.P.SHARM^, JJ Criminal ADoeal No. 356 of 2007 (?opa! Vs. The State of Chhattisgarh JUD^EMENT Post for 12/8/2009 Sd/- T.P. Sharma Judge ^ti, ^ ^ F':) ^ •'^ ^•^•3s APPELL4NT (In Jaii) HieM COURT QF CHH4:mseARH .4T BIL4SPW £dminaLAe^Ql_N&JIo_of_2uQ7 ^opa! S/o ^aimddyal, aged aboyt 35 years, resident of beogaon, Kharora, District Raipur (CS). B6SPQN&P.NI Versus The State of Chhatthgarh, through the bistrict Magistrate, ftaipur (Cff) (Appea! under Se.ction 374 (2) of the Code of Crimina! Procedure, 1973) (SB; Hori'ble- M.r. T.P. Sharme, -J.) ^r.N.K.Chaterjee, counse! for the appellant. Mr.ftajendra Tripathi, Pane! Sawyer for the State/respondent. JUD6MENT (beiivered on L^August, 2009) This oppeal i.s directed against the Judgment of convictjonond order of sentence dated 30.3.2007 passsd by 'ttte 14 Additional Sessions Judge, Rcipur, in Sessions Tria! No.28/2007 whereby ond whereunder learned 14 AdditsonGS Sessions Judge after hoSding the appeib.nt guilt)r for the offence punishable under Section 376 of the Indian Pena! Code sentenced him to undergo rigorous jmprisonment for 10 years and to pay a fine of Rs.500/-, In default of payment of fine to further undergo rigorous imprisonment for 3 months, 2. Judgment of conyiction and order of sentenc^ is challenged on the ground that wsl+iout there being proof of age of the prosecutrix, the Court below has convicted and sentenced the cypellant as Qforernentioned and thereby comm'stted illegality. 3. Case of the prpsecution, in brief, is that undeveloped brain, the pro^cutrjy aged about 17 years on the date of commission of offence i.e. 11.11.2006 was present at about 1 p.m. in her house ot Oeogaon, Police Station Kharora, District Raipur. Accused coime in the house of the prosecutrix and committed sexuQl intercourse with her while she was alone in her house. Second doy she narrated the incident to her mother who lodged the F.I<&. vide ExP/24. She was sent for medicQl examination vide Ex?/5 to Cornrnunity HeQlth Centre, -\ •4 1-^ ^ Tilda where ^he has not cooperated for medlcaS examination. Her age and physica! fealures were recorded yide Ex.P/6 and she was sent to Medica! ColJege, Raipur where she was examined by Anita Yadu (PW-4) and notic^d 28 teethes over her both the joiws. Hymen admits one finger, HymQn was patulous but no fresh injury was foursd. Vaginal was also patulous. The doctor has opined 1+iat intercourse might have been committed upon her. Her ciothes containing like sperm stand were examlned and ^aled. Her clothes were seized vsde ExP/1. Underwear of the accused was seized yide Ex-P/2. He was sent for medical examination and was examined by Dr.S.ft.Banjare ^W-3) yide Ex.P/3 Qnd was found capable for committing sex.ual jntercoursc. SCides of vagjnal smear were taken and seated. Slides and clothes were recovered vjde Ex?/6. For confirmation of the age of the prosecutrlx, osslfication test was conducted and her age was ascertained between 13 to 18 years vide EY.P/S, Spot mop was prepared yide Ex.P/18. Articles were sent for chemicQl Qnalysss and presence of human sperm was confirmed oyer slides of the prosecutrix and underwe<ir of the Qccused yide Ex.P/20. Spot rnap was prepared by patwari yide Ex.p/21. 4. Statement^ of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short iCode<) and after completion of inyestigatson, charge sheet was filed before the Judkial Magistrate First Cbss/ Raipur who in tijrn committed the case to the Court of Sessions, ftaipur from whsrs tearned 14th Additiona! Sessions Judge, RGipur received ths sairs® on transfer for triaf. 5. In order to proye the guiit of the accused/oppellant, 1+ie prosecutton has exGi^ined os many as 14 witnesses- Statement of the accu^d WQS recorded under Sectlon 313 of the Cod^ whe»<e he denied the circumstances appearing against him and jnnocency and fatee irnptication ?s pleaded and specifjc defence has been taken by the appellant that one person Dilip used to 30 to the house of the prosecutrix and mother of the prosecutrjv: was suspecting that her daughter is pregnant. Accused ©opalis neighbour of the prosecutrsx and he also used to 90 to the house of the prosecutrlx and wlth a yjew to save her faml!y from infamy mother of the pro^^cutrix has false'y implicated the appellant in the crime ir? question. C4? -.6. 5. Learned 14 Additsona! Sessions Judg®after affordin9 an opporlxinity of hearing to the pQrties, conyicted and sentenc^d the oppeUant as aforementioned. 7. I haye heard Shri N.K-Chaterjee, counsel for the appellant and Shri KajBndra Tnpathi, Pane! bwyer for the State/respondent and perused the judgment impugned and record of the court below. 8. Learned counsel for the appeltent argued that the prosBcution was under obligation to prove the age of the prosecutrix below 16 years, status of unc!Bve!oped braln and absence of consent, but the prosecution has utter'y faHed to prove the aforesaid essentia! ingredtents of 1+ie offence of sexua! intercour^, therefore, conviction and sentence of the oppellant is not sustQinable under the law. Leerned counsel further Qrgued that the prosecutrix (PW-1) has deposed in para-7 that other persons also used to commit intercourse wsth her and in para-9 she has specifically admitted that at the time of commission of such offenc-e she has not objected. Eyen after comwission of offenc^, she went for picxy and ^cond doy when her mother asked forcefully and as^xulted, then she told the incident. Learned counsel also argued that the aforesaid act shows the clear case of consent. Age of the prosecutrix is ascertained by the Court as 17 years. Her osslficatlon test reveab ^he o.ge between 13 to 18 years and if without any addition of two years in upper llmst of the age is considered, then same Is more than 16 years i,e. 18 years, She js accustomed to sexua! intercourse and has admtted relation with oltier persons clearly falsifies story of the prosecution and is sufflcient to prove the innocency of the appeltQnt. 9. On the other hond, Searned counsel for -rfie State/respondent supported the judgment ond argued that though the prosecution has not adduc^d any evidence of the age of the prosecutrix, but the prosecution hds proyed that the prosecutrly wos not able to understand the normal things and she was woman of unde-vebped braln, therefore, no questlon of con^-nt ar<ses< Le-arned counsei furl+ier argued that the statement of l+^e prosecutrix is sufficient for drawing inference that tiiie accused is a person who has committed sexua! intercour^ with her< ^ l'-li (. 10. In order to q?precjate the contentions of the parties, I haye exa^ined the eyidence addluced on behalf of the parties. As regards the question of age of the prosecutrlx is concerned, the Court itself has ascertamed the age as 17 y&ars. Ossification test report reveals the age between 13 to 18. 11. In the matter of Jaya Mcila v. Home Secretory, ©oy®m%i®Rt of Jonwu & SCcshmir Gnd others1. the Apex Court has held that thsre may be variation of two years on elther side in the age ascertained by ossifioation test. Th@ prosecution has not adduc^d any other eyjdenc^ in support of age of 1+ie prosecutrix. Therefore, onjy in the light of ossifscation test and possible varia+ion, it is difficult to ho!d that at the time of incident, age of 1+se victsm/prosecutrix was below 16 years. 12. As reaards the commission of sexua! intercourse with a woma^ of undevebped bram is concemed and complicity of the Qccu:%d/Q^pellc3yit sn the crisrie in question, learned 14th Additiona! Sessbns Judge has examinsd the prosecutri.x (PW-l) and has opined that 1+ie prosecutrix is below the normat understanding. Detail evidence reveals also the same facts in some pbc^s. She has not answered the questions. The prosecutrix (PW-1) has depo%d in her eyidence that Qt time of commission of offence sh@ was alone present in her house< Her brother, sister and mother were not present. The accused came to her house and in verandah he has committed intercourse wl^i her and after comptetion of ^^xual intercourse,the accused f!ed awoy from her house and she ^ent to hera maternai aunfs house, but she has not narrated the incident to her material aunt and finally she narrated the incident to her mother. burpati (PV^-6), mother of the prosecutriv, has deposed in her evsdence that on the date of Incident she was not present sn her house and she came after selling vegetables. On second doy morning, her sister-sn-bw (bhabhi) to!d her that the accused has committed sexua! intercourse by the prosecutrix. Then she asked to her daughter and also to!d the incident to Kotwar and SarpQnch and lastly bdged the F.I.R. Munni Bai (PW-8), wife of bro-tiher of mo1+ier of the prosecutriy, has deposed that on the date of incident at about 4 p.m- the prosecutrix came to her house and to!d to her that the accused has committed \/ i(l982) 2 SCC 538 L-^ irstsrcoL'rse wit her (nh WT <K<^{ ^). She hos a!so deposed that Ifie prosscutrix js sA/oinQn of low developed brain Qnd she has to!d to her that the accused has committ'ed sexuaf: intercourse with her and then she narrated the incident to mother of the prosecutrix ?no1tier on the second day. Shrawan Kumari (PW-9) has a!so supported the- statemejnt of AAunni Bal (PW"8). Sushma Aha!uwa{ia (PVi/~7) has deposed that on 1611.2006 she has examlned the prosecutlon but for intema! ocomination 1f»e prosecutrlx has not cooperated, ti^en she has preferred the prosecutrix to Medical College, Rajpur vjde ExP/7. Anita yadu (PW-4) has deposed in her evidence that on 17.1t2006 at about 4.30 p.m. she has examjned the prosecutrix and found her hyrnen admits one fingerand her hymen A vGginal were patubus- She has taken three slides of yagtnal smear and sea!ed. Sh©has examined saiwar of the prosecutrlx containing sperm iike stcind and opined that Intercourse mig-ht have be^n committed upon her. In her cross- exomination she has admitted that no fresh injury was found and hymen and vagsnai become patulous after repeated »nterlcourse. Slides and clothes were sent for medica! analysis and presence of sperm was confirmed yide Ex.P/22 oyer ^xlwar and siides of the prosecutrix and underwear of the appeltant. 13. The prosecutrlv is on!y substontial wstness in this case. Her detail statement and statement of the other witnesses reyeals 1+iat the prosecutrix is a woman of undevebped. brain o.nd of bebw understanding, Inpara-7 of her cross-eyaminatjon, firstly she has admitted that another boy has also commiti'ed jn+ercourse witi^ her but when it was specif»cal!y asked, then she has stated that other boy has committed intercourse wlth other girJ, but she has admitted that other boy has committ-ed intercourse wll+i other glr! in her house csnd she has seen the commission of sexual intercour^^ by o1^er boy with other gir!. Ag^in she has Qdrp.itted that other boy has committed two tirnes intercourse wlth her. She has deposed that after removing her underwear, the accused committed sexual intercourse with her, at that time she has not done anything but subsequently she to!d that she cried but he has not stopped to th.e accused and after commission of Incide-nt, she went for p!ay and on second day ^hen her mother asked, then she narrated the incident. Her detaH .statement reyeals she is not a girl of normal understanding. Suggestion giyen by the accused m para-9 of her cross-examination which is suggestive of the fact that the prosecutrix ^ 6 i^as consenting party and she has not opposed the commission of mtercourse. She has admitted that oinother person has aiso committ'ed intercourse with her two times. Mursni Bal (PW-7), materna! aunt of the prosecutrix. o.nd Shrawan Kumari (PW-9) haye corroborated the yersion of the prosecutrix up to 1+ie extent that she went to the house of AAunnJ wherte she told Munnl Bai and 1tien they decided to jnform the sncident on the second doy to the moth&r of 1+!e prosecutrlx and incident was narrated to the mother of the prosecutrix and after informing Ko^ar and Sarpanch, she has lodged the report. The pros^cutrJY has admitted that another boy has committed sexua! intercourse ^jth her but she has not denied that the present the accused has not commJtted sexual intercourse with her. On the other hand, she has specjfically deposed that the ^peHant has committed intercourse with her but she has not resisted. The statements of the witrsesses are sufficient for drawing i.nference that the prosecutrix was not Q gir! of normaJ understanding. Commission of ^xuoJ jntercourse has been supported by the medical eysdence, Anita Yadu (PW-4), her clothes ond slides and atso sent for medica! analysis and pre^nce of sperrn was also confirmed vide Ex-P/20 the commission of sexual Intercourse with her. 14. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crsme. While deallng with the question of corroboration, the Apex Court in the matter of State of Maharashtro v. Chsrsdrsprskash SCs^'sSchsnd Jsin has held that the prosecutrjx cannot be put on a par with an accomplice. She is in fact a yictim of the crime. Para 16 of the sasd judgment reads as under:- tlA prosecutrix of a'-sex pffence cannot be put on a par wlth an accomplice. She is in fact a victim of 1tie crime. The Evidence Act nowhere says tliat her' evidence cannot be accepted uniess It is corroborated In materia! particubrs. She is undoubtedly a competent witness under Section 118 and her evidence must receive the ^ame weight as it attached to an injured in cases of physical yjolence^ The same degree of care and caution must att-ach in the evaluation of her evidence as in the case of an injured compbinant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is deding with the eyidenc^ of a person who is interested in the outcome of the charge levelled by her. If the court keeps tiiis in mind and feels satisfied that it con act on the evidence ^iyyu^ i scc^u .^•—. ^^K""^ /yL:^ ;| | ";^2^'^ ^ B/- of the prosecutr'x, there Is no rule of bw or practice incorporated Jn the Evidence Act similar to illustration (b) to Section 114 which requires it to iook for corroboration, If for some reason the court is hesitant to place impiicJt reiiance on the testimony of the prosecutrix it may look for evidence which may iend assurance to her testimony short of corroboration required in the cose of an accomplice- The nature of eyidenc^ required to iend assurance to the testimony of the prosecutrix must neces^ariSy depend on the fact^ and csrcumstances of each case^ But if a prosecutrix is an adult and of full understanding the court rs entitled to base a conviction on her evidence uniess the same is shown to be infirm and not trustworthy. If the totality of the circumstcinces appearing on the record of the case disciose that the prosecutrix does not have a strong motive to fabely involve the person charged, the court should ordlnarily have no he^Jtation in accepting her evidence.............../i 15, In the pre.se.nt case, the statement of 1f$e prosecutrix is supported by the medjcal eyidence and evidence of other wstnesses sufficient for drawing inference that 1+ie present accused is Q person who has committed ^^xual intercourse with her and taking into consideratbn the factum of undevebped brain and woman nnt of norma! understandln9,1 do not find any case of consent. 16. Afte-r appre.clating the evldence available on record, the Court bebw has conyicted and sentenced the q^peibnt as aforementioned. Conviction of the appei'ant is based on credibSe and ciinching eyldence inspires confidence and is sustoinable under the !aw. 17. As regards the question of ^ntenc^ is concerned, considering the circumstances that the prosecutrix was not able to understand her wrong or right, Itie Court bebw has sentenced the appeitant rigorous imprisonment for 10 years snd fins of Rs.500/-. LeQrned 14th Addltjona! Sessions Judge has rightiy sentenced the appeJbnt The appellant does not de^^rve any sympathy. 18. For the foregoing reasons, I do not findany iilegality or jnfirmity in the judgment impugned, The appeal being devoid of merits is Ihbte to be dlsmlssed and i<? accordingly djsmissed. Sd/- T.P. Sharma Judge