\ \ wmummf IN TEE HIGH CGURT OF MWHYAPRADESE A? J'A'BALPUE. Criminal ‘Ayeal No. ‘ 7 g3 0f 95. Mmellgng. nu haSh‘Kumar son of Han kam aged abont 19 years, QMQQ‘LJ ‘ A W Shankarsrarh resident 0f Village DlSurlct B=cr1w:r, $argu3a 391nm (II P) Statuon f, -Versus- Fescondent .V atate of Madhya Pradesh through Pollce Statlon Shankergarh Dlstrict SarguJa (M P) Conv ict 1cm U/s 8’76 (2) (f) read with kbD ectlon 5’11 of the Indian “ g )L%enal vOde. Sentence R.I.for 5 grears. AkPPF‘AL UNDER SECTION 3'74 g2) OF LEE uODE OI‘ CRTMINAL PROCEDURE J CODF‘ * p HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1789 of 1995 APPELLANT Subhash Kumar S/o Hari Ram VERSUS RESPONDENT ‘ State of Madhya Pradesh Ms. Sharmila Singhai, counsel for appellant. Shri Pravin Das, Dy GA for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (18.02.2010) This appeal is directed against the judgment dated 21 .12.1995 passed by Sessions Judge, Ambikapur, in Sessions Trial No. 175/1995 convicting the accused/appellant for the offence punishable under Section 376 (2) (f)/511 IPC and sentencing him to undergo rigorous imprisonment for five years. 2. Case ofthe prosecution in brief is that on 7.3.1995 FIR (EX. P- 1) was lodged by Suresh Thakur (PW-3) — the father of the prosecutrix alleging that on 4.3.1995 when his daughter (PW—1) aged about 8 years was playing outside the house, accused/appellant who happened to be the brother of his neighbour namely Laibabu forcibly took her to his house and after closing the door removed her underwear as well as that of his own and made an attempt to commit rape on her. It is alleged that on haring the cries raised by the prosecutrix, her mother started shouting and knocking at the door. On door being opened by the accused/appellant, prosecutrix came out weeping. It is also stated in the FIR that the prosecutrix immediately narrated the entire incident ti) her mother complaining pain on her private part. 3. So as to hold the accused/appellant guilty, prosecution has examined-06 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 cf the Code -2_ of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Panter (DW-1) has also been examined by the defence in support of its case. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 4. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that present is a case of false implication on account of some previous dispute between the family of the accused/appellant and that of the prosecutrix. She submits that a very unnatural story has been put forth by the prosecutrix and other witnesses examined by the prosecution which does not get support from the medical report Ex. P-5. According to the ’counsel for the appellant, Dr. (Smt.) J. Kujur (PW-4) has categorically stated that the injury which was found on the private part of the prosecutrix was 15-20 days old. Counsel for the appellant submits the prosecutrix is a tutored witness and the defence witness has correctly stated in detail as to what had transpired on the date of incident. She submits that appellant had merely scolded the prosecutrix which unfortunately led to some verbal altercation between him and the mother of the prosecutrix but to make the case graver, this false report has been lodged against the accused/appellant. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that there was no occasion for the minor prosecutrix aged about 8 years to implicate the accused/appellant in a false case. He submits that theastatement of the prosecutrix makes it clear as to in what manner an attempt to forcible sexual intercourse 'was made on her by the accused/appellant. He referred to the medical report Ex. P-5 ..—g_ showing the injuries sustained by the prosecutrix, which reads as unden “Pubic hair not developed. Private part does not matted With blood or semen iike stain Redness in the vagina Small tear at 8 O clock posmon In the hymen Sign show pOSSIbilIty to sexual Intercourse He submits that the statement of the prosecutrix has been duly supported by her mother Girja (PW-2); father Suresh Thakur (PW-3) as also the medical evidence. 8. From the statement of the prosecutrix (PW-1) it is clear that on the fateful day at about 4 p.m. when she was playing outside her house, accused/appellant called her saying that she would be taken in a bus, took her inside his house and after closing the door from inside threw her on the cot, removed her undergarments and that of his own and made an attempt to commit forcible sexual intercourse with her. lt is alleged that when the prosecutrix started crying, her mother had come there, She has stated that when the accused opened the door, her mother had scolded him. Thereafter, the prosecutrix had disclosed the incident to her mother complaining pain on her private part because of the act of the accused/appellant. According to this witness she was taken to the doctor for examination where she took treatment In her cross examination this Witness has stated that 15 days prior to the date of inCident there was some dispute between the accused and her mother in respect of theft of hen. According to her, even on the date of incident some altercation between the accused and her mother had taken place but she has categorically denied the suggestion that she had implicated the accused in a false case because of the dispute between her mother and the accused. Girja (PW-2), mother of the prosecutrix has also supported the statement of the prosecutrix and stated that after hearing the cries of her daughter, she rushed to the room where the prosecutrix was taken by the accused and there she narrated the entire story to her This witness has further stated that she herself had seen the injury on the private part of the prosecutrix and had called midWIfe for giVing some treatment to her Suresh Thakur (PW—3), father of the prosecutrix has also supported the g, _..(’__ statement of his daughter (prosecutrix) and wife Girja (PW-2). Dr. (Smt.) J. Kujur (PW-4) who had medically examined the prosecutrix and given her report (Ex. P-5) has stated that her secondary sexual characteristics were not fully developed, no external injury was there on her body, pubic hair were not developed, no blood—like or semen- iike spots were there on her private part, there was redness in her vagina, there was a small tear injury on hymen which was at 8 O’clock position. According to this witness, there was possibility of sexual intercourse with her. Though, in the cross examination this witness has stated that tear of hymen could be 15-20 days old, she did not give any opinion in her medical report whether the said tear in the hymen of the prosecutrix was recent or old. Dr. F.R. Nirala (PW-5) who had medically examined the accused has stated that he was capable of performing sexual intercourse. S.S. Patel (PW-6) who investigated the matter has also supported the case of the prosecution. Though, the sole defence witness namely Panter (DW— 1) has made an attempt to say that on the date of incident when he was playing along with the prosecutrix she started crying and then the accused/appellant took her inside the room and at that time mother ofthe prosecutrix had come and started abusing him. He has stated that there used to be some altercation between the accused and the mother of the prosecutrix, nothing substantial can be presumed from the statement of this witness to take a view contrary to one taken by the Court below. 9. In view of the aforesaid detailed factual discussion, this Court has no hesitation to form an opinion that taking advantage of the helplessness of the prosecutrix, the accused/appellant has made a brutal attack on the chastity of the prosecutrix but could not succeed in his aim due to unexpected arrival of her mother. No lenient view to such mentally perverted persons is desirable. The view taken by the Court below being the only desirability of law needs fortification. 10. Appeal, in the result, being without any substance is hereby dismissed. Judgment impugned is left undisturbed. Appellant is reported to be on bail. His bail bonds stand cancelled. He be sent to jailforthwith to undergo his remaihing sentence. ' Sdl-v / Wtttnker Diwaker Judge