IN THE HON'BLE HIGH COURT OE_CHHATTISGARH_AT BILASPUR. CRIMINAL APP^L_NO./^(? /2002. APPELLANT. r~iN-jAii7-) SHATKUHAN. S/0« Ram Ratan Chandra» Aged about 30 years. Resident of villagei Borasi, P»S« - Jalja-i-pur, District - Janj gir-champa (C.G») VERSUS RESPONDENT. Statebof Chhattisgarhi CRIMINAL APPEAL U/S. 374(2) OF THS CODE_OF_CRIMINAL PROCEDURB, 1973. ^B @-:- ^- HIGH COURT OF CHHATTISGARH AT BILASPim Criminal AooealNo. 180/2002 Shatruhan Vs. State of Chhattisgarh Sia^e Beach: Hon'ble Justlce Slurl Dilip Raosaheb Deshmulch, J. Shri M.K. Bhaduri, learaed counsel for the appeUant. Shri Ashish ShuMa, Oovt. Advocate/Addl. PubUc Prosecutor for the State. ORAL JUDGMENT (DeUvered on 13-01-2006) :,9:^. 1. This appeal is directed af.sdn.at the judginent dated 10.10.2001 delivered by Shri Dilip Bhatt,SpecialJudge, [Scheduled Castes/Scheduled Tribes, (Prevention of Atrocities) Act] Bilaspur iu special criminal case No. 76/2001 whereby the appeBant was convicted under Section 376 (^ of I.P.C. and was sentenced to undergo r^orous imprisoiunent for seven years aud a fine of Rs. 1,000/- and ia default of payment of fine, to undei^o simple imprisorunent for Iwo nionths. 2. The facts of the case Ue within a narrow coinpass. The prosecutrix Ku. Ard, a miaor girl aged about 13 years is the daughter of Ramaiya P.W. 2 aad Fotobai P.W.3. On 21.12.2000 at about 3.00 p.m., the prosecutrix with her playmates Nawadlia, Shravaa Kuinad aad her sister Kalpaaa had gone to eat berries. Afler eating berries, they went towards the pond, The prosecutrix caUed her playmates but, fhey got separated, Thereafter, fhe prosecutrix washed herself and came to fhe bund of the field for retuming home. At that tune, the accused/appeUant came fhere, caught hold of fhe -—g': -3S. 3) 2 3. prosecutrix aad foroibly took her towards the tanlr aad arter gagguig ner moutn wim a piece ot cjom aaa lorciDiy maJsuig ttie prosecutnx ue down, uaaressea fier ana conimittea rape on jtier. wmie me accused/'appellant was committing me sexual act, fhe piece of cloth Came out m>m me moufh of fhe prosecutrix. At that point of tiiue, she saw one Shankarlal P,W, 4 of fhe same vfflage near the pond of the field, The prosecytrix shouted. Shankarjal P.W. 4 saw ttiat uie accusea/appeuant atter aressuig lus 'iunai1 ran away. He also saw that the prosecutrix was cryiug. He -aiso uoticed that therc were blood stams ia tne tjiign ot tue prosecutnx as also on Jier unaer garments, Kaniesnwar f.W, 5, a cnua witaess a^ect aDout 11 years aiso nappenea to reacli mere an.a perhaps on being asked by Shaulsarjal P.W. 4, he ran to me house of the prosecutrix aud told her m.0ther mat t&e prosecutnx naa tauen rrom me tree. The prosecutrix accom.pauied Shaakarlal P.W. 4 to her nouse aucl uuormea uer momer fotoDai f.W, •2 aDout tfie aiciaent ot ia.pe Dy me accusea/appellant on uer. F.I.R, Ex. P-1 was lodged at 10.20 a.m. on 22.12.2000 in f,S. Jaiiaipur situateu at a alstance ot aoout l^ Kms from vulage Borsi, the natwe place of the prosecutrix. ine prosecutnx was sent tor meciicai examinanon, ur. Mrs. C.K. Siuah P.W. 7 exaioined me prosecutrix at &. 15 p.m, on ^^.l^.^UUU ana louna tUat anea blooa was present on the medial side of left thigh and ateo on me ngtit sicie ano&tmg aownwams. i-ongesuon was noticed over L-abia. Majora. Separafcion of thigh was painful, Lacerauoii was present on both sides ia Labia Majora. wifh reddishness present it bteeded on touch. riiere was a l-'ermeai tear l,s> cm x fi cm, witn wouna gaping, was congestea ana Dleectmg on toucja. rtyinen was tom at 7-5 o'clock position, fhe size of the tear ueing fi ana '•4 ot cin on Dom siaes. it also Dieedea on toych. The vyagina admitted one finger fhough it was very paintui. rurttier, nitemai exanunauon was not possioie Decause ot severe pam ana tencleniess. ur. Mrs. C.K. Siugh P.W. 7 opined that ttie prosecutrix was suDjectea to torciDle sexuai mtercourse, in ner opmion, the age of the prosccutrix was about 12 to 13 years, sne reierrea ner lor lactiological exanunauou lor confirmation of^e,' ^. Ur. unatterjee r.w. »concluctea ossfflicanon test on me prosecutrix aad found fhat the Medial epicondyle had not lused (age ot tusion Deiug l^ yearsj. uiecrenon ol uma mouen appearea naci aiso not tusea (age ol msion beiag 15 yearsj and the iliac Creast had also not appeaTed (age ot appearance Deuig l^ years). Un me above findings, Dr, Chatterjee P.W. 8 opined that t&e age ot ttie prosecutnx was iy ycars. ine accusea/appeuaut was also sent tor meaical examination mougri atter considera.ble delay, Dr. Jai Siiigh P.W. 9 wbo exaouned the accuscd/appeUant on l.&.^UUl touna mat me accused/appeilant was iuBy capable of pertbrmiug sexual intercoiu-se. After completion of iuvestigation, the accused/appeiiant was prosecuted unaer yecuon y/t> (^j (t) ot i.P.u. reaa wim Section 3 (2) (5) and Section 3 (1) (11) ofthe Scheduled Castes/ scneduiea i nbes tPievenUon ot Atrocffles) Act, 1989, the prosecutrix being a inember ol'the Scheduled caste. The accused/'appeBant abjured the guilt and ia defeuce pleaded innoceuce aad false iuipUcation diie to election nvauy m. wlucn &e naa retusea to voie tor uie tamer ot fhe prosecutrix and adduced the evidenc^- of one Tarun Kiuu.ar D.w'. 1. The leamed trial Judge relyiag upon the testunony of fhe prosecutrix which was a.vff corroborated by inedical evidence and also the testiniony of\ Shankarlal P.W. 4 convicted aad sentenced the appeUaat as afoicsaid ia para 1 under Section 376 (1) ofI.P.C. since fhe age offtie prosecutrix was held to be 13 years. The accused/appeUant was acquitted ofthe'chai^e under Sections 3 (2) (v), 3 (1) (xQ of Scheduled Castes/Scheduled Tribes (Pre-ventfon of Atrocities) Act, 1989. •/i. '.! 6. Leamed couasel for th6 appeUant has contended that the prosecutrix is a child witness aged about 13 years and since her testuaonv was not corroborated on material pardculars, the leamed trial Judge coimnitted aa error in convicting the accused/appeUant. He atso contended fhat non-examioation of the playmates of the prosecutrix i.e. Nawadha, Stiravan Kumari & Kalpana who had gone wifh the prosecutrix to eat berries renders the testimony of the prosecutrix unworfhy of credit, He contended that absencc of auy iiyuries on the private parts of fhe accused/appeUant creatcs a strong suspicion about thc stoiy of rape wifh. the prosecutrix and placed reUaacc on ShKcnntaI Mcrtfauratal 7s. JBndhMa PraSesh reported in M.P.L.J. y^y^ fVol.21 Paee No. 308. He aiyied that the evidence adduced by the accused/appeUaat ia defence read with para 10 ofthe testnnony of Ramaiya P.W. 2 i.e. fafher of fhe prosecutrix did not rule out that the accused was falsely implicated. He submitted tfiat the testunonv of Rameshwar P.W. 5 who had io&rcacd the mother of fhe prosecutrix fhat the prosecutrix had a faU fixiia the tree couplcd with opinion of Dr. Mrs. C.K. Siagh P.W. 7 in para 9 rendered the evidencc led by the prosecutrix uatrustworthy. L^tty, Shri M.K. Bhaduri, leamed counsel for fhe appellant also conteaded tfaat the absence of seiuen or spennatozoa on the skirt aad the Tinder gannents aud slule prepared by Dr. Mrs. C,K. ^ Singh P.W. 7 creates a serious dent in the prosecution stoiy. On tti& other hand, Shri Ashish Shukla, leamed Govt. Advocate/Addl. Public Prosecutor appeanug for the State supported fhe inipugned judgineut aad contended that the presence of Shankarlal P.W. 4 at fhe place of occiurence is natural and he saw the accused dressing aud ruiuiing away and also noticed the blood staias on fhe under garments of fhe prosecutrix. He att-gued fhat the testimony of the prosecutrix is fuUy coiroborated by inedical evidence aad therefore the conviction on the basis of the testunony of the prosecutrix did not catl for any interference. He disttnguished thc case law cited by the leamed counsel for the accused/appeUaut by contending that iu fhis case, the accused/appeUant was examiaed on 1.5.2001 i.e. ater considerable delay wtiich explaias absence of auy mjuries on the private parts ofthe accused/appeBant, lai 7. Haviug heard fhe rival contentions, I have miautely perused ttie record of the trial Court. In S(a(e of Punjab v. Ramdev Sinah reported 2004(2) C.G.L.J. 66, the Apex Court held as follows: It is well settled that a prosecutrix coinplainiag of having been a victim of the offence of rape is not au acconipUce aflber fhe crime. There is no rule of law that her testimony cannot be acted without corroboration ia material pardculars. She staads at a h^her pedestal thaa an iajured witaiess. In the latter case, there is injury on the physical fomi, while ia tiie fonner it is bofh physical as weU as phychological aad emotioiial. However, tf the Court of facts finds it difficult to accept fhe versioa of tlie prosecutrix on its face value, it m.a^y search for evidence, direct or circumstantial, which would lend assurance to her tEstunony. Assuraace, short of corroboration as uuder stood in the context of - aa accoinphce would do. Beariag ia luind the principles enunciated by the Apex Court for appreciation ofthe evidence ofthe prosecutrix, I shall now proceed to exaDiiue the evidence of the prosecutrix. Ku. Arti P.W. 1. deposed that she had gone with her fiiends to eat berries and after doiag so she got separated aud went to the tank for haviug a wash. Thereafter, while she^came to the bund of the field, the accused/appellant suddenly caught hold of her and gagged her inouth with a piece ofcloth and took her to a nearby place. She furfher stated fhat the accused/appeUaat reiaoved her under gannents, inade her to Ue down and coTnmitted rape on her. She further testified that diuiag the sexual act by fhe accused/appeUant, fhe cloth gagged in her inouth cam.e out and on seeiag one Shaakarlal P.W. 4 going fi-oin nearby she shouted. Thereafler the accused/appellant ran away, She has stated that her clothes had blood stams. Her testimony is fuUy corroborated bv laedical evidence of Dr. Mrs. C.K. Siugh P.W. 7. The findings ofDr, Mrs. C.K. Smgh havc been inentioned ia para 3 (Supra) which clearly show that the prosecutrix was subjected to forcible sexual iutercourse fuUy corroborates the testimony of the prosecutrix. 10. SharLkarial P.W. 4 has also corroborated the testiinonv of the prosecutrix. His presence at the scene of occurrence is natural. There is nofhiag in his cross- examination which would render his testimony doubtfal or unworthy of eredit. He bore no grudge agauist the accused and fhere was no reason for him to falsely inipUcate the accused/appeUaut. This witaess also saw that fhe under garmcnts of fhe prosecutrix had blood stauis as also her thighs and slie was not UL a position to watk normatly. The testimony of Fotobai P.W. 3, fhe mother of the prosecutrix also shows that immediately after retunung from. fhe field with Shaukarlal P.W, 4, she told her that the accused/appeUant had conunitted rape on her. So far as tfae testnnon^ ofRameshwar P.W. 5 is concemed, he inerety saw that the prosecutrix was ciying aad a viUager was standing aearby who asked him to iafomi fhe niother and-thej^after he went to the mother of the prosecutrix and told her that Arti had fallen fix>in the tree, Thus, it was inerefy conjecture of this witaess aad not' a true statean.ent of fact. The iajuries sustaiaed by prosecutrix, on her private parts could not, ia any case be caused by a inere faU froin a tree. There is also nothiug on record to suggest that the prosecutrix had faUen froia fhe true. 11. The medical evidence relati.ng to ossi&cation test also shows that the age of the prosecutrix was approximately 13 years. Even if the legally permissible inaigin of enior on either side is to be considered, there is absolutely no doubt that the prosecutrix was below 16 years ofage. 12. So far as the contention of the learued counsel for the appeUant regardiag the absence of iajuries on fhe private parts of the accused/appeUaat is concemed, the accused/appeUant was inedicaUy examiaed on 1.5.2001. Tbis by itself explains that iujuries, if any sustaiaed by the accused/appeUant on hjs peius would have disappeared by then. So far as the testimouy of Taruu Kumar D.W, 1 is concemed, he had no personal kaowledge about the iacident. He admits that he had heard in the village that the prosecutrix was bleeding from. private parts, In cross-examiaation, he has also stated that iuunediately after the incident, the '3: accused/appeUaut had fled fiom fhe viUage. In my considered opiaion, fhe testunony of Tarun Kumar, D.W. 1 is ofno assistance to the accused/appeUaat. 13. So far as the ground of false implication on account of election rivahy is conceraed, the defence raised by the accused/appeUant is fhat the father of the piosecutrix wanted the accused/appeUaat to vote for tiiTn, whereas the accused/appeUatj't had refused. Ramaiya P.W. 2, the fafher of the prosecytrix has ia para 9 adniitted that the contest in the clection was belween him aud one Itwari. It is highly improbable that inerely upon refusal by a person to vote, allcgation of rape on fhe miaor daughter would be leveUed by aay parents. 11!9! 14. The argum.ent of the leamed couasel for the appeUaat that fhe absence of semen and spermatozoa on the skfat, uiiderwear aad sUde of the prosecutrix renders her testimony uureliable, caa also not be accepted. The evidence ted clearly shows that the prosecutrix had shouted when she saw shankarlal P.W. 4 near the place of the iucident and on seeing ShaiLkarlal P.W. 4, the accused got up, dressed and fled away. This clearly shows fhat ejaciilation niight not have taken place tiU fhat time which explauis the absence of seiaen aad spermatozoa ou fhe skirt, imderwear aad sUde of the prosecutrix, Even ofherwise for proving the offence of rape under Section 376 (1) ofI.P.C. proofofpenetration is itsetf suf&cient Thus, this contention of the defence also fails. 15. Lastiy, fhe non-examination of Nawadha, Sluawaa Kuman and Kalpaaa, minnr playinates of the prosccutrix does not help the accused/appeUant ia any maruier as fhese girls were not present at the place where the iacident took place. Priya 16. Having thiis considered the evidence led by fhe prosecution iu its entu-ely, I ani of the considered opinion that the eonviction of the accused/appcUant under Section 376 (1) of I.P.C. (the prosecutrix beiag agcd about 18 years) is weU foimded aiid does not catl for auy iaterference. So far as the sentence unposed upon the accused/appellant is couceraed, in a tradition bauud' aad conservative society, more particularly ia a ryral area, fhe shame of sexual assault on a girl of about 14 ycars canaot be lost sight of. TJie inmimum. sentence uiiposed on the accused/appeUant, therefore, does not call for any iuterference. 17. The appealbeiug devoid ofiaeritis dismissed. Sd-/ • Judae