^£^ HIGH COURtOFCHHATTISGARH. BILASPUR A ELLANT: Criminal Apiaeal No.8t2of2006 Gajendra Kumar \ RESPONDENT: Versys Stateof Chhattisgarh PostforDronounGemeiltofiuddmenton 27th Julv, 2009 ut :!K . ^'•' :i; Sd/. T.P.SfaaBna Judge 7\ ';-'- .* 11 .il"i|il'i i"' HIGH tOURtOFGHHATTISGARH.BIL.ASPUIt Criminal ADDeal No.812_of2006 APPELLANT: \ RESPONDENT: Gajendra Kumar Versus State of Chhattisgarh Post fbr DronounGemenfrofiudamenton 27th Julv, 2009 iA^f Sd/- T.P. Sha^ma Judge ':^' .* Eii'iF'llN ^••S'siffi 10 HIGH COURTOEFy©HMATTISGARH,BII..ASm.lR Grimirtal ftpbeal No.812 of 2006 APPELLANT/: (Accused/Gonvict) '\! RESF'ONDENT: ©ajendra Kumar, S/& Bhuwan Das, aged about 20 years, ©ccuRatioh Mazdoori, R/o Chain Ganj, P.S. Gunderdehi/ Distt. .:[5u:rg.(C.G.):' : •1:::1:-'•:;:','7.'''1:;.- Versus • • • ,: ., 1::1 ."••;'." State 6f ChhattisgaFh,; Through Police Station Gunderdehi, Distt. Durg (C.G.) . &. -[CrimTnal appeal under S^^tion 374 of the Code of Criminal ,'..'Pr6<::e:yure,,:l 1:973}-' -1 '"v.^ '^ .! :,,; ".' tr-v : Mr. Malay KymariShayuri,^ ; . Mr. Sushil Dubey, (3ovt. AdvQcate for the State/respondent. Sinale Bent;h:^M6n'ble Mr.T*P. Sharma, 3 ''•-IJUDGMENT' :: /: :-'lll'll.:..\ls:v.1. (Deliwred 6n27m3u1y/2009^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 1. Thts criminal appea) is clirectecl against the judgment of conviction &6rde]-e)fsent:ence<latgtl 28-10-2006 passedbyt^fe t^ Additiohal S^ in Sessions Trial Mo.198/2005 vvhereby & wtiereuniJer tearned Additional ; Sessions Jud^e afEeii- ^holding tHe appeHanf guilfy for' commission of offence yrKler Secfioris 450 & 376 (t~) of the ; ;I;P.C., sentenced him to undergo R.I. for five years & pay fine of Rs.1,000/-, in clefault of paym^^ ;'S.I, for three months an<d to undergo R.I. for teh years^^^ fine of Rs,l,QOO^-r in ijefault of p^ unclergo S.I. forthree months/respectively; te ' x' ••i : -••'.^ ..;; -...':'1 ;-^.:> -.:. 5essi&ns Judge ?also .directed ^that the sentenG6s shall ryn ';,ycQncy'rrently.•,..'- - '•-.''•^. ::^ ';^::.1'1''''':':~;:.:'.1:111.1'',:... 2. Judgment is ehallenged QCT the groynd that without^any iota 6f ewdence, especially the gge ofthe.prosecutrixbrelow I6;yeare ; and in absence of; cori-oboration bf the staterrient ,of the^ •N '•i, (»(-' ^SIEWWWik^:^: ^SI^ ^ 'SlSSSs*; I" '•'•'^. »' •/ prosecutrix, the Court below has convicted and sentenced the appellant and thereby committed illegality. 3. Case of tbe prosecutipn, in brief, is that the prosecutrix (PW-8), who is aged about 13^years on the dateof inddent i.e. 19-6- 2005, at about 10 p.m. was sitting Qutof her house along with her mother, her mother directed her to alight lamp in the room, when she went inside ttie room and alight the lamp (D//a) she saw that the appellant was sitting inside the room and was smoking Bidi, the appellant demanded water from the prosecutrix anet while she wgs providing water t6 theappellant, .<?? ••' ' ' ' - : '': . : ^ : ' • ' he threw her down and affe'r pressing her hnouth & removing her clothes, he inserted his male organ in the private part of the prosecutrix, and at that time, her mother called heron which the accused left her. The prosecutrix narrated the incident to her mother. The prosecutrix was weeping. Thereafter, she.along wifh her mother went to the Potice Station and lodged the reporton 20-6-2005 atabout 00.30 mid night within 2 Vi hoursOftthe|ncidentvideEx.P-9.Aftertaking cQnsent, the prosecufrixwas sent for medical examination vide Ex.P-16. The prosecutrix was examined by Dr. Reriuka- Prashanto (PW-6) vide Ex.P-7 and her age was assessed as 12 years. Two abrasions werefound on her knee, she wasnot in a position tp wajk properly, her menstrualcycle has not started, pubic hair was not developed, secondary sexual characters werenot developed, hymen was ruptured inform of 8 O'clock position and there was pain on touch, cervixwas congested, spermlike discharge was present inside the vagina, rupture of hymen was within 24 hours of the examination. Two slides of vaginal smear were taken and sealed and handed over to the Constable. She was subject: to infercourse within 24 hours of her examinatioh. THe doctor also examined Salwar, Kurta & underwear of the proseGutrix having sperrhatic & btoodstains^ vide Ex.P-8. Spot map was prepared vide Ex.P-3. Clothes of • the proseeutrix were seized vide Ex.P-4. Patwari preparedspot ~ mapyide Ex.P-5. Underwear of theaccused was seized vide ^tfl 'STOe's^a'QSSEsa-isn^ -^ ii.' !• ,li!:l. [it;l" -^j' vf; Ex.P-5. The accused was also sent for examination and he was fourid capable 6f eSmmittirig sexual intercourse. Sperm of the accused was taken &sealedand seized vide Ex.P-6. Document relating to age of the prosecytrix i.e. Kotwari register (birth \ . • _ '^ ^ _ ^ - . 11' • • . . . regjster) was seized vide Ex.P-12. Copyof thesaid entry is Ex.P-11. Registerwas given inSupurdnama vide Ex.P-13. l-1er school admission register was also seized and copy of the register is Ex.P-14 and'copyof transfer certificate is Ex.P-15. Vaginal slides of the prosecutrix were seized vide Ex.P-t7. Seized articles were senfc foi'.chemical analysis vide Ex.P-Zland \tf- ".:.. ''•••••:' " . '-.' • •. '•••'. •' •• . . .. . presenee of sperm over (ifNderwear, Salwar, Kurta & vaginal slides of the prosecutrix and underwear of the accused was confirmed vide Ex.P-22 By the State F.S.L. Raipur. Stabements of the witnesses were recorded under Section 161 of fhe Cr.P.C.and after completiohof investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg who in turn committed the case to the Court ofSe§sions, Durg from where learned 1s Additional Sessions Judge, Durg, received the case ontransferfortrial. 4.1norderto prove the guilt of the appellant, the prosecution has examined as many as fourteen witnesses and statement of the .f"-^ appellant was recorcted under Section 313 of the Cr.P.C. in which he denied the circynnstances appearing against him, pleaded innocence & false implication. 5. After affording opportunity of hearing to the parties, the Court below has convicted &sentenced the appellant in the aforesaid manner. 6. I have heard learned counsel for the parties and perused the impugned judgment as also the re&ord ofthe trial Court. 7. Learned counsel for the appellant vehemently argued that aceording to the statements of the prosecutrix & witnesses, the present appellant was already present in the house of the ^, prosecutrixand he used to visit the house of the prosecutrix : .frequently, therefore, conviction &sentence imposed upon the .'h'sj "^; SBS£^!-SS!tSS^ !-&i ^: appellant under Section 450 of the I.P.C. are not sustainable. Learhed counsel furtHer argued that the prosecution has not proved theage of fhe prosecutrix below 16 years. There is discrepancy in the date of birth of the prosecutrix written in -\.-^:1 ,,'..,.. ! . . '. ' --'.-„. schoot register l.e. 10-7-9t andbirthregisteri.e. 22-10-91 and 1n absence of conclusive proof of age, age of the prosecutrix was not proved by the prosecution below 16 years. Evidence of the prosecutrix is fu'11 of contradictions, - omissions & discrepancies not safe to rely without any corroboration from independent sources. Therefore, conviction of the appellant for - ;;.t -" . - . '. .':..;'' -. ..'.' commission of offenee of rap^ is also not sustainable under the law. , - 8. On the other handy learned counsel appearing on behalf of the State/respondent supported the judgment and argued that age ^pf the prosecutrix has been proved by the prosecution by adducing birth entry. register and school admission register, although there is discrepancy of date, there is no cliscrepancy of year,and her age has also been ascertained by the doctoron the basis of her physical appearance. Therefore, the prosecutrix is aged about 12years on the date ofeommission ofoffence. Her evidence has been corroborated by her mother and independent sources, and fylly corroborated by medical evidence which .is suffident for drawing inference that the appellantis the person who committedsexual intercourse with the minor prosecutrix insider her house and thereby committed the offence punishable under Sections 450 & 376oftheI.P.C. Sentencesimposedupon the appellantare also proper. 9. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf ofthe prosecution. The prosecution has adduced ev^dence to prove age of the prosecutrix below 16 years. Smt. Jamna Bai (PW-2), mother of the prosecutrix, has deposed that the age of the prosecytrix is t2 years. Doman Singh (PW-3) has deposed that the age of the prosecutrix is 14years. At the time of examination of the prosecutrix, the Court has assessed her age as 13 years. The ii • I; •. r i ^ •v^" s-' -s' 5 proseeution has examined Kotwar Amar Das CPW-9), who has deposed that date ofbirth oftheprosecutrixis 22-10-91 onthe basis of entry in Ex.P-lt, the book has been seized vide Ex.P- t2 and the same has been given inSupurdnama vide Ex.P-13. Incharge MeadmasteiA Smt, Saroj Soni (PW-10) has deposed that dateof birth of the prosecutrix is 10-7-91 ahd her dateof birth has been recorded in school admission register Ex.P-14 and copy of the transfer certificate Ex.P-15.- The proseeutrjx .was examined by Dr. R.enuka Prashanto (PW-6) vyho assessed her age as 12 years. On her examination, her physical .&... ..':. ^ . . '.11'..' ; ;. appearance was noticed t?|? this witness and she has deposed that menstrual cycle of the prosecutrix has not begun, pubic hair was not developed and secondary sexual characters were not well developed. Defenee has not been able to elicit anything in the cross-examination ofSmt. Saroj Soni (PW-10), Incharge Headmaster, who has deposed the date of birthof the ; prosecutrix as 10-7-91. Amar Das (PW-9), Kotwar, has deposed her date of birth as 22-10-91, but has admitted in his cross-examination that he himself has recorded the date of birth of the child and also admitted that in Ex.P-11 name of the Ghitd was recorded as Kyleshwari not Duleshwari. 10.0n thebasis of date of birth recorded in birth register, age of the prosecutrjxpn the dateof offence could be below 14 years and ev.en on the basis bf entry in theschool her age would be below'14 years, Smt. Jamna Bai (PW-2) has deposed the age of the prosecutrix as 12 years. Doman Singh (PW-3) has deposed her age as 14 years. The Court has assessed her age as 13 years. lt.In the present case, fhere is discj-epancy in date & month of -birth of the prosecutrix but th^re is no discrepancy in year. Birth register is Gonclusive proof of age, if same is not found satisfactory, age may be ascertained on the basis of pther relevant factors like her physical appearance, age asGertained by mother, father & other persons, age ascertained by the doctor and date of birth recorded in the school register. •^v.::' VCWf'•.•aSSi-SS^'.:-'W^-^KSfl'sS'ilBt.VW^'': 'ii| ^,;i^aE"^,; .f'^y:s '! SSi'WSi;!)a r 7 I "V ;^bs^ -f-^ l2.In the matter 6f Sidheswar Ganguly v. State of West Bengal , the Apex Court has held that irl absenGe of Gonclusive proof of age recorded in the birth register, age can be ascertained on ttte basi's ofother relevant faets. Wliile dealing • \ . :: : '; ' . .' :' • , :\! ;1/ with the question of determination ofage, in the matter of State of H. P. v. MangO Ram2 the Apex Court has held that age of the prosecutrix shall be determined on the basis of all reievant factors, includirTg physical features. Paras tt & 12 of thesaidjudgmentreadasunder:- "11. We carefully^ considerea the rival contentions and al^i perusecl the records and the impugned judgments. The verdict of not guilty has been entered by the learned Sessions Judge mainly based on two grounds that the prosecutrix was aged above sixteen years and jf at all ttiere was any sexual act, it must have been with her cQnsent. Both these findings are erroneous and incorrect. 12. As regards the age ofthe prosecutrix/there 1s evidence of PW 2 Dr. Veena Sehgal who examined the prosecutrix and after taking note of the physical features stated that the prosecutrix must be of theage between 13 to 14 years.PW 3 Dr. Lokender Badotra, who examined the prosecutrix also supported this version. This view is more strengthened by the family historywhich sftowed that she was born in the year 1979. Therefore, in all probability, the age of the prosecujErix vat the time of the occurrence was about fourteen years. The •certificate of PW 13, the Medical Officer-cum- Radiologist, also gives oniy the probable age of the proseeutrix. Therefore, the finding of the learned Sessions Judge that the prosecytrix was above the age of sixteen is based on faulty reasons and is unsypported by evidence." 13.0n thebasis of aforesaid eVidence adduced on behalf of the pi^ecution' the Court below ^as assessed age of the prpsecutrix below' 16^^^y Finding of the Court below on the basis of evidence adduced on fc)ehalf of the prosecution is sustainable. 1AIR 1958 SC 143 2{2000)7SCC 224 s:-~:^. ,.„..--n^.a-'-»ks^SKSBasawwuBi^KsaiB.a'a*" •-— IN' ,^^.. '.f: ^; 5,y l4.As regards the question of commission of the offence of rape, the prosecutrix (PW-8) has specifically deposed that on the fateful day whenshe went inside her house to alight the lamp, she found the accused Inside her room, he was smoking, he .1:1"\-.'/1:. . !1 !. . ..: . ! • . *. .: demanded water and whileshe was giving water he caught hold of her, threw her down and removed his clothes and also her clothes, and inserted his male organ into her private part, at that fime, her mQther catled her on which the accused left her. She narrated the incident to her mother. Her private part was painful and blood was coming out from there. Her mother assaulted the accused with.tgtick and also narrated the incident to Kunwar Bai & other persons (members of the vicinity). Thereafter, she went fo the Police Stationwhere shelodged the report vide Ex.P-9. The prosecutrix was partlydeclared hostile for proving other documents. She has further deposed that after lodging the reportsKe was examined by the doctor and herclothes wereseized. " iS.Smt. Jamna Bai (PW-2), mother of the prosecutrix, wlio was present near the house pn the fateful day has corroborated the evidence of the prosecutrix and also supported that the accused was found inside the house. Smt. Kunwar Bai (PW-t) has nofr fully supported the case of the prQsecution, but has admitted that mother of the prosecutrix told her that the accused has commitfe'ed offehce (TraiT ^FT) with her daughter and she also assaulted the accused. Doman Singh (PW-3) has deposed that mother of the prosecutrix told him that the accused has committed offence (^^) with her daughter, at that time the prosecutrix was weeping and they went to the Police Station where they Ipdged the report. Poshan Lal (PW-5), father ofthe prosecutrix, has alsosupported th^ version ofthe prosecutrix. is.The prosecutrix was examined by Dr. Renuka Prashanto (PW-6) whohas deposedthat on 20-6-2005 at about 4.30 p.m. he has ^examined the prosecutrix, her hymen was torn in 8 O' clock ppsition, there was pain on touch, cervix was congested and -sperm like discharge was present. Injury over hymen was •i;;-:'=i.: ^-- /.-<!" - within 24 hours. Vaginal slides were taken. In her opinion,the prosecutrix was subjected to sexual intercourse within 24 hours ) . : : of her examination Ex.P-7. In her detailed cross-examination she has denied the suggestion that by squeezing with finger, \ . ^ . , . ... . .. . hymen may tear. In [Jara 11 she has admitted that excessive injuries were found over private partof the prosecutrix. This witness has in fact corroborated the commission 6f sexuai intercourse u pon the prosecutrix. 17^[n her detailed cross-examination, the prosecutrix (PW-8) has admitted in para 12 thatgfirstly she entered jn the house .M '. 1-..". . ' ,: 1' „.! '11. ..,' thereafter, theacGused.ent^red. The accused used to visit her house frequently. She has also deposed thatfirstly she cried on which her motl-ier came, but her mother has deposed that she has called the prosecutrix, on which the prosecutrix came out from the room. There are discrepancies in the statements of the prosecutfix & the mother of the prQsecutrix as to whether who has called first and there are also mjnor dTscrepancies, contra<J,icti6ns & ornissions in the evidence ofthe prosecutrix. l&.In the present case, the prosecutrix is aged about 13 years on the date of incident. iS.Corroboration bf evidence is not a rule of law, buf is a rule of caution ,and rule of prudence. In case of any infirmity, corrQboration is required from independent sources. While dealing with the necessity of corroboration, the Apex Court has he|d in case of State of Maharashtra v. Ghahdraprakash Xewalchand Jain that corroboration of the evidence of prosecutrix is not necessary. Para 16 of the judgmentreads as fotlows:-: ' . , '* ; , "16. A prosecutrixof a sexoffence cahnot be put on a parwith an accomplice. She is in fact a victim of the crinie. The Evidence Act, 1872 (in short 'the Evidence Act') nowheresays that her evidence cannot be accepted unless it is corroborated in material particulars. She is ^.990) 1 SCC 550 l^. '^^1?®^^ undoubtedly a eompetent witness under Section 118 and her evidence must receive the same weight as is attached tp an injured in cases of , physical violence. The same degree of Care and caution must attach in the evaluation of her " evidence as ^in the case of an injured Gomplainant OF' Witness and no more. What is necessary is that the court must be alive to and conscious of the^fact that it is dealing with the evidence of a person who is interested in the , outcome of the^charge leveled by hec. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there js no rule of law or practice incorporated in the Evidence Aet s|in]lar to Illustration (b) to Section 114 whieBI requires it to look for corroboration. If fof some reasoh the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurahce to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prose.cutrix must necessarily depend on the facts and circumstanGes of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence ynless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on.the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no tiesitation in accepting her evidence.........,...." 20.Evidence.Gf the prosecutrix reveals that the accused is the person who fell on the prosecutrix in her house andinserted his male organ in the private part ofthe prosecutrix. Factum of sexual intercourseis supported by Dr. Renuka Prashanto (PW-6) vide Ex.P-7. Presence of the accused inside the house of the prosecutrix at about 10 p.m. on the fateful night when nobody 'was present in the house and narcgtion of the incident by e prosecytrix to her mother is corroborated by the evidence of Smt. Jamna Bai (PW-2), mother of the prosecutrix. Evidence of the prosecutrix cannot be discarded only on the grQund pf discrepancy, contradiction and omission which are natural. Hier; , evidence inspires confidence^it is trustworthy and safe to rely. '...aa.'t g .^y 10 2l.After appreciatjng the evidence of the prosecutrix & other witnesses supported by medical evidence and also by th.e chemical analysis report Ex.P-22 in which presence of sperm over underwear, Salwar, Kurta & vaginal slides of the prosecutrix was corifirrhed, the Court below has convicted & sentenced the appellant under Section 376ofthe I.P.C. 22.As regards the question of conviction of the appellant under Sectjon 450 of the I.P.C,, admitteclly the accused was found inside the house ofthe prosecutrix. House trespass is defined in Section 442 of the I.P.C. reads as follows: - /?•? "442. House tre^pass.—Whoever commits criminal trespass byentering into or remaining in any building,teHt or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit ''house-trespass". 23.Admittedly, theappellant has committed the offence of rape with a minor, wHich 'is punishable under Section 376 of the I.P.C. and maximum sentence provided is life imprisonment. , The accused has entered into the house of the prosecutrix and remained present inside the house with intent to commit the offenceof rape and finally he hascommitted the offence of rape on the prosecutrix. The act of such house-trespass of the appellant squarely falls within the purview of the offence punishable under Section 450 of the I.P.C. Therefore, convicfion of the appellant under Sections 450 & 376 of fhe I.P^C. is based on credible and clinching evidence sustainable underthe law. 24.As regards the question of sentences imposed ypon the -^ .,. ' ;^ ; • '.'. ^ .- '1' ^. ; .'—. • :1 •: • appellant, taking intb consideration the age of the prosecutrix and injury foUnd over private part (Sf the prosecutrix, sentence of R.I. for ten years & fine of Rs.1,000/- under Section 376 of the I.P.C. and sentence of R.I. for 5 years & fine of Rs.l,OOP/- under Section 450 ofthe I.P.C. are rleither excessive nor unjust. •l!l-!;E';iZffit; 1 ^^ '^"1:-:"^,: I; Soma .•• » .11 ' " ; . ' 25.For the foregoing reasons, I do not find any scope of interference in this appeal. The appeal is, therefore, liable to be dismissed and it is hereby dismissed. Sd/- . T.P. Shasma Judee t fii .< 11-i1 i: ':