ON 37473: OF CODE OF CRIM APPEAL UNDER SECTI AT BILASPUR E HHA 1N THE HIGH COURT C OF THSGARH JUDICATUR CRIMINAL APPEAL NO. 30$ $ [2002 M APPELLANT Chhattisgarh VERSUS State of Chhattisgarh Through Station House Officer, Police Station S 'vrinarayan, District JanjgirvChampa, Chhatt'lsgarh INAL PROCEDURE RESPONDENT / m : Satish Kumar Sahus e Aged about 22 years, Rcsident of Vinage Tanod, District Janjg‘DChampa Police Station Shivrinarayan, (“ii ganjimm H._LG_H_.°0.U_RJ ‘ OF CHEWUR Cr: Mm N¢-106§12Q92 Singlc Bench: Hon’ble Shri DILIP RADSAHEB DESHMUKH'. J. Satish Kumar Sahu Vs. State of Chhath'sgarh Post for orders Sdn. DIL1p RAOSAHEB DESHMUKH Judge HIGH COURT OF CHHATT1§GAH1 AT 31mm GLA Single B€nch: Hon’ble Shri DILIP RAOSAHEB DESKMUKH, J. Satish Kumar Sahu Vs. State of Chhatu'sgarh JUDGMENT (Delivered on Ié -01‘2006) This appcal is dinacted against the judgnent datgd 18.09.2002 delivemd by Shri ND. Ekka: 4th Additional Sessions Judge (Fast ’I‘Iack Court), Janjg‘r in Special Case No. 50812001 whereby the appellant was convicted umier Section 376(1) and Section 506 part II of the I.P.C. and was sentenced to undergo rigomus imprisonment for seven years and due of Rs.500]-, in default of payment of nne, to under further R.I. for three months under Section 376 (1) and to under RJ. for'two years under Section 506 part II ofthe I.P.C. 2. Bgiedy stated the prosecuu'on story is that Prosecutn‘x P.W.15, aged about 13 years, is the daughter of Ambika P.W.2 and , Ramkishun P.W.5. On 26.10.2001, she along with Ku. Pushua P.W.18 and Ku. Meena D.W.1 had gone to witness Dusseham festival in which the e$gy of Ravana was burnt in the outskirts of the village Tanaud. At about 7.00 RM. after the festival was over the prosecutrix P.W. 15 was manning home alone. Near the village tank While she was attending a call of nature. the accused- appellant came there and caught hold of her. kissed her, forcibly PRESENT: - Shri G.S.Ahluwa1ia, for the accused—appellant. Shri J. D. Bajpai, G.A.[Addl. Public Prosecutor for the State. liftsdher and took her towards the bushes near the tank, forcibly undressed her and committed rape on her. The pmsecutrix said that she would tell her mother about the incident. The appellant threatened to kill her. Due to forceful penetration the virgin prosecutrix started bleeding profusely h‘om the private parts. The appellant odered his banian to wipe out the blood but she did not accept it and went to the tank and washed herself. On returning home, the prosecunix informed her mother Ambika P.W.2 about the rape committed by the appellant on her. 3. F.I.R. ‘EX.P.2 was lodged by Ambika in Police Station Shivrinarayan on 27.10.2001 at 09.15 A.M. Prosecutrix was sent for medical examination. Dr. Rama Ghosh P.W.7 examined the prosecutrix at 6.30 RM. on 27.10.2001 and found that she had discomfort in walking and could walk slowly. Her secondary sexual characters were well developed. There were multiple bruises reddish blue in colour On her breasts and she was complaining of pain all over both breasts. There was a cut present at the joint of both Labia Majora and Labia Minora which was skin % deep red in colour, margins were lacerated 1 cm. long and it bled slightly on touch. Her vagina Was very tight, though admitted two hngers and on stretch was bleeding. Blood clots were also present. There was a lacerated wound present over right lateral vaginal wall. Margins were not clear. It bled on touch. The depth of lacerated \ ' wound was about V4 cm. Hyman was ruptured. Curunculea was present, red in colour. In the opinion of Dr. Ghosh P.W.7, the injuries were about 24 to 30 hours old. She opined that forceful sexual intercourse might have been committed on the prosecutrix P.W.15. She referred her for determination of age to the District Hospital, Bilaspur. 4. Dr. R. Jitpure P.W.6 who conducted the ossincation test on the‘prosecutrix for determination of her age found as folloWS: i) Head of radius was fused (age of fusion is 14 years) ¢ ii) Olecranon process was fused (age of fusion is 15 years). iii) Lower end of ladius ulna not fused (age of fusion is 17 to 18 yeaxs‘ iv} Ih'ac Creast had appeamd though not fused (age of appearance 14 years. age of fusion 19 - 20 years On the basis of above Eldings. Dr. Jitpum P.W.6 opined that age of Prosecutn'x could be between 15 to 17 yams on the date of occunence. 5. Birth ceHilicate of Pmsecutn'x Ex.P.5 g'ven by Headmaster Umcdram Sahu of Primary School Tanaud showing the date of birth of Prosecutn'x as 2.1.1987 was seized vide Ex.P.4. The appellant was also sent for medical examination on 28.10.2001. His penis, genital organs and secondary sex characters wexe found to be well developed and no clinical sim1 of incapaciw to nerform sexual intemomse was found on him by Dr. K.K.Thawait P.W.19. Underwear worn by the accused-appellant was sent in a sealed packet by Dr. Thawait which was seized vide Ex.P.l3. One pink coloured two piece, one red coloured panty of Prosecutn'x having bloodlike stains which was sent by Dr. Rama Ghosh P.W.7 in a sealed cover was seized vide Ex.P.1. 0n being sent for chemical examination to the Forensic Laboratory, it was opined by the F.S.L. Raipur that the tw0 piece i.e. skirt and shameez; and, her underwear and the underwear of the accused—appellant were ' stained with blood. Spot map Ex.P.1l was prepared by Paramlal (P.W.8). After completion of investigation, the accusedvappellant was prosecuted under Section 376(1) and 506 Part-II 1.P.C. 6. The accused abjured the guilt. In defence, it was pleaded that the accused and pmsecunix were in love although sexual relah'onship had never been established. On the date of occurrence, the accused had gone to the Dusssehra fesh‘val. The prosecunix had called the accused to the place of occurrence but the accused did not go since he was incapable of performing sexual intercourse and could not get any erection. The prosecun‘on examined as a; QI{ many as 21 Witnesses. In defence. the accused-appellant examined Ku. Meena, aged about 17 yeaxs who had accompanied ‘the pmsecutn'x to the Dussehma festival. Meena D.W.1 deposed that at the festival the prosecuhix had told her that she had callr’d Satish and some other boys, and themfoxe, she was going to meet them and had left the festival at about 5.30 - 6.00 RM. 7. Shri G.S.Ahluwa1ia, leaxned counsel for the appellant has at the vely outset stated that he does not assail the hnding of the irial Court that on 26.10.2001 at about 7.00 RM. the accused- appellant had committed sexual intercourse with the prosecutrix P.W.15. Lealned counsel for the appellant argued that he assailed the convieu‘on of the appellant only on the following gmunds: A. That the oxal evidence relating to the age of the pmsecum'x did not conclusively show her age to be less than 16 years whereas the evidence of Dr. Jitpule P.W.6 and his report Ex.P.8 clearly proved that age of the pmsecuu'ix was about 15-17 yeais. Considering the legally permissible margin of ermr of two yeais on either side, it could not be ruled out that age of the pmsecutrix on the date of occurrence was more than 16 years. B. Secondly, the evidence led by the prosecution showing: (a) absence of injuries on the back of the pmsecum'x, (b) admission by the presecu‘aix about oEering no msistance during the sexual act, (cl the washing of the blood stains by her in the Tank aaer refusing to accept the banian of the accused-appellant to wipe out the blood, {d} the admksien mlahng t0 Panchayat for her marriage with accused~appellant ‘ and (e) the testimony of Meena D.W.1, though cited by the prosecution but given up, showing mat the prosecutrix had gone to meet the accused—appellant under a pie-arranged plan was clearly suggestive of consent of the prosecutrix in the sexual act committed by the appellant. He also laid stress on the opinion of Dr. Rama Ghosh P.W.7 in para 3 of the cross-examinah’on that if during sexual intercourse committed with a virgin girl with her consent. a fomeiiil penetration took place, the injuries found on the private parts of the prosecuirix could have been sustained. On the other hand. Shri J.D.Bajpai, leaxned Addih'onal Public Prosecutor argued in support of the judgment of the fri'al Court. He placed xeliance on a decision of the Apex Conn in SW pfmxnmdm Sinai! mported in 2004 (2) C.G.L.J. 66 and argued that the testimony of e the prosecutrix was fully conchorated by medical evidence of Dr; Rama Ghosh P.W.7 which showed that the prosecutn'x was subjected to a vexy brutal rape. Themfore, though there might be some discrepancies in the testimony of the pmsecutn'x, this Court should not give weight to irrelevant or insignincant technicalities. 8. Having considered the rival contentions, I have gone through the record of sessions trial No.508]2001. The prosecutrix in para 15 expressed complete igiorance about her age. Meena D.W.1, aged about 17 years, has deposed that the pmsecuuix was about 1 V2 — 2 years elder to her and had after failing once in class-I left school after studying till class-V. Her above tesu'mony is wholly unrebutted in cross—examination. Umed Ram P.W.3 has Proved the birth certincate of the Pmsecutrix showmg her date of birth to be 2. 1. 1987. The cei tilicate shows that the date of birth entered in the school leaving register of chss-V was reckoned to be the date of birth of Pmsecuuix. Ramkishun P.W.5 has in paragraph 8 of cross—examination stated that when he went to admit the prosecutn'x in class-1 at the school, he did not know her date of birth, and therefore, by guess work he had asked the Headmaster to write the age of Prosecutrix as 6 years. Although he has stated that on the date of birth of Prosecunix he had made an enny in the kotwari book, yet no such document was produced by the prosecuh'on. In the F.I.R. lodged by Ambika P.W.2, the‘ age of Prosecutrix was shown to he 13 years on the date of occurrence. In para 6 of her cross—examination, she also admits that the age narrated by her was on the basis of guess work and she had not taken any documentary proof thereof to the Police Station. The primary evidence of proof of age in such matter is the date of birth entered in the Kotwari book at the time of birth which has not been a produced in this case. The form Elcd in by the palents at the 11'me of admitting the child in thc school in class—1 is also a primary evidence for proving the age, but the testimony of Ramkishun P.W.5 in paragraph 8, clearly shows that he did not lmow the date of birth of the prosecuin'x, and therefote by imagination he had asked the Headmaster to write her age as about 6 yeam. It is thus clear that if the same age has been mexm'oned in the school leaving register of class—V, it could not be taken to be the conclusive proof of age of the prosecutn'x. 9. The other evidence for pmof of age. on reconi. is the testimony of Dr. R. Jitpme P.W.6 and the ossification test report mentioned in pamgiaph 2 which clearly shows that her age was assessed to be between 15- 17 years since Iliac crest had animated (age of appearance -— 14 years) but not fused (age of fusion — 19-20 yeals) and the Olecranon process had fused (age of fusion 15 yeals) and the lower end of radius ulna was not fused (age of fusion 18— 20 years. Considering the above fact and the legally permissible margin of error of two years on either side it could not be ruled out that the age of the prosecunix was more than 16 years on the date of occurrence. 10. The testimony .of the prosecutn’x clearly shows that on reaching the Khamba tank while she sat for attending a call of nature, the accused-appellant caught hold of her. lifted her and took her to a distance and thereafter committed rape on her. The medical evidence of Dr. Rama Ghosh P.W.7 has been referred in paragxagih 3 of the judgment which clearly shows that sexual intercourse was brutal and very painful. Dr. Rama Ghosh found multiple bruises reddish in blue colour on the breasts of prosecum'x who was complaining of pain all over both breasts. The prosecutn‘x was not able to walk comfortably and could walk with diflinilty. There was a cut present at the joint of both Labia Majora and Labia Minora which'was skin deep red in colour. margins were lacerated 1 cm. long and it bled slighthr on touch. i 37': Her vagina was very tight, though admittnd two mars and on sh‘etch was bleeding. Blood clots were also present. There was a lacerated wound present over right lataral vam'nal wall. Marm'ns were not clear. It bled on touch. The depth of lacerated wound was about V4 cm. Hyman was ruptured. Curunculea was pxesent, red in colour. The unlebutted tesu'mony of the prosecutrbc is also v fully corroborated by the tesu'mony of her patents Ambika P.W.2 and Ramkishun P.W.5. Ambika P.W.2 has deposed that on the date of occunence on mtuming hum the fair, the pmsecuu'ix was crying and narrated the ‘incident to her. The testimony of the prosecutn'x thus leaves no manner of doubt that the accused- appellant had a very forceful sexual intercourse with her on 26.10.2001 at about 7.00 RM. near the Khamba tank. \ 11. The only point which requires consideration now is whether the, prosecutrix had consented to the sexual intercourse by the appellant. It is true that Meena D.W.1 stated that at the fair the prosecutn'x had told her that she was going to meet Satish and some other boys Which cannot be doubted but that does not by itself mean that the pmsecutrix was going to enjoy sexual intercourse with the accused—appellant. The odence of rape would be complete even if after the prosecutrix went to meet the accused- appellant of her own volition, she was subject to sexual intercourse without her consent by the appellant. The injuries sustained by the prosecutrix leave no manner of doubt that she did not consent to he sexual intercourse. Her testimony in paragraph 8 that the accused lifted her and took her to some distance is also corroborated by the F.I.R. EX.P.2. i 12. The prosecutrix was a virg'n g'rl and had never enjoyed sex before. This is also clear hum the statement made by the accused in his examination under Section 313 Cr.P.C. that before the date of occurrence he never had sex with the prosecutrix. It is quite plausible that since the prosecutrix knew theaccused and had gone to meet him, she did not shout when the accused lifted her as a t < 3 she would not know what the accused had in mind. However. she stated in moss-examination that she had shouted when thc accused undlessed her but she was overpowemd by the accused. The manner in which the pmsecutix was undlessed and subjected to sexual intercourse leaves no manner of doubt that there was complete lack ofconsent of the pmsecutn‘x. 13. Another fact which completely rules out consent of the prosecun'ix in the sexual act committed with her by the accused- appellant is that if she had consented and was a willing party to the sexual act, then she would not have narrated the incident to her mother under any circumstances. It is a not a case Where the accused-appellant and the prosecutn'x were seen together While enjoying sex which would have compelled the prosecutrix to inform her parents to hide her shame. In this case. the very fact that the prosecutrix immediately after lemming home cried to her mother and narrated the entire story about the brutal rape committed on her lends credence to the fact that there was complete lack of her consent in the sexual act by the accused-appellant. Another fact which supports the above view is that immediately after the rape, the prosecutrix who was profusely bleeding told the accused~ appellant that she would narrate the incident to her mother whereupon the accused-appellant threatened to kill her. The refusal by the pmsecunix to accept the bam‘an od'ered by the accused-appellant for Wiping out the blood also clearly shows that she was not consenting party in the sexual act. 14. Th‘e opinion given by Dr. Rama Ghosh P.W.7 in' cross- examination paragraph 3 does not apply to the present case since in this case there were multiple bruises reddish in colour present on both breasts of the prosecutrix and prosecutn'x had vain all over both breasts. The prosecuuix was subjected to rape so brutally that she could not even walk normally. The injuries found by Dr. Rama Ghosh on private parts of the prosecutn'x coupled with the above mentioned facts clearly mks out consent of the a prosecutix in the sexual intercourse committed by the appellant on her. 15. So far as the admission made by the prosecutrix that there was a Panchayat in which a marriage proposal was considered does not help the accused in any manneru In a tradition bound and conservative society more particularly in a rural area the shame of sexual assault on a girl in her teens cannot be lost sight o£ a The hapless pamnts would have no other alternative but to tequest the accused appellant to marry the pmsecutrix and in that context the Pandmyat must have been held. This does not absolve the accused horn the heinous cn'me committed by him. 16. As regaxds the admission by the pmsecunix that while she was being lifted and taken to a lonely place by the accused- appellant, she did not scratch the accusedappellant with her nails or bit him, is again of no help to the accused-appellant. The prosecutrix was a virgin. While Ietuming h‘om the fair perhaps she had gone to meet the appellant. Therefore, when the accused lifted her and took her to a lonely place, perhaps she did not imagine that she was about to be subjected to a brutal raye. In paragraph 13, she has narrated that while she was being undressed she had shouted but the accused had over-powered her and forcibly made her to lie on the gound. The fact that the accused had kept his foot on her chest is also corroborated by the bruises found on her breasts. Since the place of occurrence was a very lonely place, the shouts of the prosecutn'x would be of no consequence, therefore, ‘the mere fact that the prosecutn'x did not Oder any resistance during the sexual act, does not help the accused-appellant in any manner. 17 The prosecutrix was a virg’n and in her teens. The perpetrator of crime was an able-bodied youth bustling with energy and determined to fulhll his lust and take advantage of the prosecutrix having gone to meet him and forcefully removed the prosecutrix to a secluded place Where there was none around to help the prosecutrix in her defence. As held by the Apex Court in 5 \\ E @Q 10 State of Purg'ab v. Ramdev Singh mported in 2004 (2) C.G.L.J. 66. the absence of visible marks of injury on the back of the ~~prosecutdx on the date of her medical evidence would not , necessarily mean that she had ooered no msistance at the time of commission of crime. The vexy fact that the prosecutrix had injuries on her breasts as well as on her private parts and was profusely bleeding coupled with the fact that she immediately informed the incident to her mother lends credence to her testimony and completely rules out her consent in the sexual act. 18. Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that the trial Court has rightly convicted the appellant under Secn'on 376 (1) and 506 Part—II of the I.P.C. Sp far as the sentence awarded to the appellant is concerned, itLbehtting to the heinous crime committed by the appellant and does not call for any‘interfemnce. The appeal is devoid of substance, has no merit and is dismissed. :4