W HIGH COURT OF CHHATTISGARH AT BILASPUR ISB: Hon’ble Mr.T.P.Sharma,J.] Criminal AQgeal No. 65112002 Umashankar Rohidas, Aged about 3 years, occupation Agrisulturist, S/o Lagansai Rohidas, R/o village Dukupathra PS Pan, Tehsil Katghora, District Korba (CG) VERSUS RESPONDENTS l The State ofv Chhattisgarh through the PROSECUTION District Magistrate Korba, District Korba CG. CRIMINAL APPEAL UNDER SECTION 37412! OF THE-CODE OF CRIMINAL PROCEDURE, 1873 Shri B.D. Badgaiyan learned counsel for the appellant Shri Rakesh Jha Deputy GA for the respondent/State. 10RAL} JUDGMENT (28.7.2008) This appeai is directed against the judgment of conviction and order of senience dated 10.4.2002 passed by the Additional Sessions Judge, Bilaspur, in Sessions Trial No. 54/2001 whereby the appellant has been convicted for commission of the offence punishable under section 376 of the lndia'n Penal Code (for short the Code) and sentenced to undergo Rl for 10 years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo'Rl for six months. 2. The judgment of the trial Court is challenged on the ground that without there being any clinching and reliable evidence the appellant has been convicted and sentenced as aforesaid. ‘ . 3. Heard counsei for the parties and perused the impugned judgment as well as the material available on record. 4. lt is argued on behalf of the appellant that due to enmity between the family of the complainant andthat of the appellant, the appellant has been falsely implicated‘in this case. lt is argued that the statement of the prosecutrix (PW-5) has not been supported by any'independent witness. 0 5. On the other hand the impugned judgment is supported on behalf of the respondent/State. 6. According to the case of the pmsecution when the prosecutrix PW-5 aged about 15 years at retevant time was cutting the crop in her field, the appeilant aiong with co~accused Jagatram came there, they caught hoid of her hair, appeiiant feii her down and eta-accused Jagatram put off the Sari worn by her. Meanwhile, on account of their tum for sexual intercourse some dispute arose between the appellant and the co-accused and ultimately co- accused Jagatram left the place of incident. Thereafter, appellant removed her petticoat and the undergarments worn by her committed forcible sexual intercourse. on her. When she tn’ed to raise the cries, the appellant threatened o end her life. When the appellant was committed sexual intercourse on her, sister of the appellant namely Amrata Bai and brother-in-law of the appeilant namely Deendayal came there and on seeing them the appellant ran away towards the forest. Thereafter, she went to her village and narrated the story to her father and to one Devanbaba and lodged the FIR Ex. P-13 on the same day at about 10 p.m. She was medically examined by Dr. (Smt.) S. Shrivasta‘va (PW-2) who noticed external injuries on the body of the prosecutrix, her hymen was ruptured .in 6 o’clock position, tenderness was I' present and vagina permitted one finger and she was complaining pain. Two' slides of vaginal smear were prepared and according to the doctor the prosecutrix was subjected to forcible sexual intercourse. Appellant and the other accused were also medically examined and they were found fully able to perform sexual intercourse. Clothes of the prosecutrix were seized under Ex. P-9 and P-1D. After investigation the charge sheet was filed. 7. In order to prove the guilt of the appellant the prosecution has examined 8 witnesses. Statement of the appellant was also recorded under section 313 of the code 'in which he denied the material appearing against him Q @ «.3_ in the prosecuiion case and pleaded innocence and faise impiicatian in the case as a result of enmity. 8. In order to appreciate the conteniion of the learned counsel for ihe -~ parties i have examined the evidence adduced by the prosecution. 9. As regards the age of the prosecutrix, on 28.4.2001 when her evidence before the Court was recorded i.e. five months after the incident! she was 19 years old. PW-Z Dr. (Smt.) S. Shrivastava, has opined on the basis of external examination like development of secondary sexual character that she was between 16-18 years of age. She found injury on the back, neck and chest of the prosecutrix. Hymen of the prosecutrix was ruptured at 6 o’clock position and according to the doctor these are the positive signs indicative of the fact that she was subjected to sexual intercourse. In the cross examination the doctor has stated that there was no injury on the mouth or neck of the prosecutrtx. 10. As regards commission of intercourse with the prosecutrix, comptainant PW—5 Suruj Bai has stated that when she was in her field, appellant and other accused came there, appellant felled her down and after removing her clothes including the undergarments he forcibly committed rape on her. Meanwhile. sister and brother in law of appellant namely Amrata Bai and Deendayal came there and on seeing them the appellant ran away. Thereafter, she came to her village and narrated the incident to her father and lodged the report on the same day. Statement of the prosecutrix is not supported by Amrata and she Q has been declared hostile. The appellant being the real brother cf Amrata, she cannot be expected to state anything against her real brother. 1 1. Prosecutrix (PW-5) was cross examined at length ion behalf of the appellant where she has admitted that she could not offer resistance as the appellant and the co-accused were catching hold of her hands. However, she ’ has also admitted that there was enmity between her family members and that 3 of the appellant. She has however specifically denied that she has falsely ”a. l£ \1 wg.‘ -a‘ implicated the appenant on account of enmity, in the crime in question. Though this witness has been cross examined at length, the defence has not been abie io discredit her testimony on the point that no intercourse has been committed with her. The appetiant appears to have tried to take the defence that he has been faisety impiicated due to the enmity or that there was consent on the part of the prosecutrix. Thus from the statement of the complainant which is supported by the medicat evidence, it is established that the appellant has subjected the prosecutrix to sexual intercourse. 12. As regards consent, the appellant has not taken the defence that this is a case of consent. However, the prosecution is required to establish the case that the appellant has committed the sexual intercourse without the consent and will of the prosecutrix. According to the statement of the prosecutrix, she was taken away from the held by the appellant and the co-accused to a nearby forest after catching hold of her hands and legs. This shows that there was no consent on the part of the prosecutrix and she being helpless at that moment Gould not offer resistance to the act of the appellant and the co- accused. T 13. he evidence ted by the prosecution is sufficient to establish that the complainant, who was aged between 16—18 years at the relevant time, was subjected to rape by the appellant without her consent or will. Act of the appellant squarely falls within the purview of rape as dehned in section 375 of the Code. Thus the findings of the trial Court convicting the appellant under section §76 of the IPC are based on the reliable and clinching evidence available on record and the same needs no interference from this Court. 14. As regards question of sentence, the appellant has been sentenced to undergo Rt for 1O years and pay tine of Rs. 1GOO/-, in defauit of payment of tine to further undergo RI for six months. lt is argued that at the time of incident the appellant was aged about 27 years and he is in custody since 25.11.2000 and thereby he has underone 7 years and 8 months of jail g sentence which according to him is a sufficient punishment for the offence of the appeliant. 15. The aforesaid submission seems to be reasonable one. Accordingiy, the appeal is partiy allowed. Conviction of the appellant under section 376 of the IPC is maintained. Now he is sentenced to undergo Rl for 7 years and 8 months and pay fine of Rs. 1000/-, in default of payment o tine to further undergo RI for six months. Since the appellant has already undergone the' sentence imposed on him, he be set at liberty forthwith if not. required in any other case. \ Sd/- T. P. Sharma , Judge a, , l