.l!Sfi^t^li HISH CWMT OF CHH.4TTISSARH AT BILASPUR Criminol Aspesi NB. 1227 fff 1993 (SB; Hon'btottr. T.P.SHARMA. J) Sultardhan Vs. State of Uadhya Predesh Q^tow Chhattis§<u-h) POST FOR JUD6 NT ON 28/6/20l0 Sd/- T.P.Sharaa Judge 1 HE6H COURT OF CHHATTISeARH AT 6ILAa>UR Cr'mfrmt APB<BQ| .1227 $f l?93 SukardKan aon vf Dosa Ponka e^»d obout 20 yeors, reaidsnt ef Bondhawapara, Purani Bcs^i. Raipur. ^.P. ^Jow C.©^ Versus Stote of rtadhya Prsdesh O^iow Chhattis^arh} (Criminat <q)ped undsr Ssction 374 of Cr.P.C.) SB; Hon'bte sr, T.P. Sherms.J. Present:- ffirs-Indira Tripathi, counssl fop th? (ypsltant. Mr-Kakssh Kumar Jha, E>y,6ovt.Adwcate for the Stute/nespandent. (Oeliwred an 28th Jyse, 2010) . Chattengs in this appeal is to the judgment of conviction & orcter pf aentenes dsted 21.9.93 poassd by the 5* Additiana! Sa^tens Jud9e. Raipur, in Ssssions Tria! No.406/91,whsreby & whereundsr leamed 5*^ Aelditional Ssssions Judgs aftBr holdm9 the appellant 9uilt^ for the offence punishobls undsr Ssctions 363. S66 & 376 iscd with Sectton 511 of the Indicn Penal Cod| ssntenesd him fo undsrgo rigoreus •HBprisonmenT for three yeors, on each count. _2, Conviction is.-chaiter^sd ®nthe greund thct wlthout wy ieta of evidence ^ / syffJcienT for cenvicticm of ths oppelkmt, 1+ie tricl Coupt has convictsd "ife' and aentsnced the appelfant as aforementwned and thsreby comm'tted ifegatity. 3. Ccse of 1-he prosecution. In brief. (s th.at on 14,8.91 at cbout 6,30 p.m. '(•heprosecutptx PW-2 {name not osntioned) toft her houss fw the '"<." '' -. ' . ' - "' hbuse of Bhaiyaial for watching T.V., th®sppellant who i®eta entice the ..•<-""wa»^. •i t%^ 1 K -^: prosscutrix woss stcnding near the house of the prosecutrix, he calted the prosecutrix and took hsr wth him in hu; heyse, te ctossd the house from instds. After soms convsrsation the appettafff pressed broast of the prosecutrix which she opposed, then appellant told her thfit he wBI morry with her, she resisted. then 1tw appeftant thrccstened hsr. Thesreafter. ths sppeffant j^moved hBr undeigarment cnc! trted to msert his mats orgcn in the private parf- of the prosecutrix. Whlfe the sppslfant was ttying ts commit 'ml'epceww with the prosccutrix, some person kFiocted from outsick. Potfce came into the h<»ss of the appsllant. When father of the prosecutrix namefy. Bholarwn came to know that hep doughtsr ts rwt pressnt in h's hou^, thsn after wme ^srch he Ipdgsd the reprt at about 0.30 a.m. on IS.7.91. wftWn s'x hours of hsr migsmg vids Ex.P/3, Her fcther alerg with pfice flched to th< house of The appeilaRt andrecovsree! the prosecutrjxalong with ths accused vjde pecovery meino Ex.P/9. Undsrgorment of the prQSBCutrix containmg som®stssinsd was ssizsd wd®Ex.P/2. She ws® ssnt for medlcal examin<rt''on victe Ex.P/11. No injury w(®fiEHind over the body or privats part of the prosecutrix, Two slides of voginal snwap wsrs taksn vlde Ex.P/llA. School admission regfste!' of ths prosecutrix was seized yids Ex.P/t2 which rsvscts that dats of birth'of ths prosecutrix was 11.12.77. Undergarmsnt of ths accused was atss seised vids Ex.P/4, Accused was s?nt fe" reedlcal exQmination. Hs was examined by &r.Subh<Kh Pandey 0>W-1) vids B(.P/1. Hs was fousd c^)abte fer committing intercourss. Smsgma wis missmg. Ssi^d eu'ttctes wers ssnt fof chamiea! examination vide Ex.P/14. Spot m<y was prepared bythfe in-t'sstigstjr^ offieervide 6x.P/!S. 4. Statefflsnts.of ths w-tnesses were recorded under Ssctioti 16i of the Cod® of Crimma! Pr'ocsdups. 1973 (in shwt 'ths Code^ emd after eomptetfon of inyestgation. charge-shest w®fited before The .Additjpnal Chief Judisi.al AA%is^pate, Raipur, who In ture coramifted the \ ^^-^o the Cour't of Sessicns, Raipur, froni whsre tearned 5H' Additiona! Ssssions Judge. Rcipur r'ecsived the cose on tronsfer for tria!. 5. In ordsr to prew the- guilt of ths accussd/appellaRt, the prosecutiCTi has examined os many as 12 witn®ssss. Tl^e accuged/flppeltant was examined under Section 313 of the Cocte triiers he desnied the circumstcmces appearjn9 (^ainst hlm and ctaimed mno^nee wid fabs impftcatiQR in the crime jn qusstion, 6. Aftsr providing ej^ortunfty of hearing to the pa"tiss, tearned 5th Addftional Sessions Judge, ftaipur eonyicted & sentencsd ths agpettant QS aforemsntfoned. , . 7. I havs hecrd ieamed counsel for the parties, perused the judgment impt^ned and record of the Court bstow. 8. Leamed couns.si for the appeHcnt vshsmsntty ai^ued that the prosecutrix is adroittsd fove fetCers Ex.0/1 te &/16 which revsai that thsy were h.avJRg tove offair and on.cccount of theh' reltrt'ion. the pro»cutp!xhersslf has teft Tte heuss ef her father' and gons to the house of ths sppetkmt. Ths appeHsnt has rot committed anyoffsnce. Jhe prosecution hfls not proved ths ags of the prosecutrix bsbw i6 9. On ihe other hond. teamsd Stnts ceurKel supportcsd ths judgmsnt •i:-. •• ' impugned <md ai^ued in the prssent ca«,ew'dencs adducsd on bshaff ®fths'prosecution is suff'CBnt for drawing (nference that at tte trms ~^ of eommission of'the offencs, oge of the proaesutr'ix was below 16 -. / ysars apd the appsllaft has tried to commtt intercouree wjth her after kidnapping and abduction. The trial Court has rightly eonyieted & sentenced ths appeliant as aforementioned, ro.In srderto cypreciote ,the ai - part-ies,- I; haye examined the advcnced on iaehalf of the adduced on bshdf of the 11. As rsgards the ags of thc prosecutr-ix, sg«?of the prosecutrix has been assessed by the Court os 15 years on the dats of h®revietence. Her father Bhotaram hoe spacificslly deposed IR his evidence that shs born on 1142.77. Teacher Shanti Verma (PW-10) hes dspossd in her svidsnce that birth csrtificate of the prosscutrix wos ssizsd ytde :x,P/12 and w per transfer certificflit? Ex.P/9.4; her date of birth is 11.12.77. In ter cross-examination shs has admitf-ed that she is not in a position to say thst whfit was th«bes? ^arding the date Qf birth of Ths prosecutrix. Bhoterom P>W-3), fcther of th< proseCTtpix, hsss spscifically depossd irt hss syictence thst eicte of birth sf the prosecutrix is lt.12.77 which finds supprt- from the schoof documsnts. &efsnc6 has not cross-examinsd Bhotaram relating to dats of birth of the presecutrix. His evicfence is wett aupport'ed by the docitmsnlnry evidencs and 's sufftetent for drawing infepence that dats of bipth of the prosecutrix is 11.12.77 cmd thsreby <sn the dat®of inci<feiit i.s. t4.8.91 she was below ths ege of 18 ysars, 12.In ths present cose. evidence addu%^ on behalf ef ths prosecution is sufficfent for drawing infsrence that on 15.8.91 at about 4 am. i:«. intsrvenirg ni'ght of 14.8.91 aid 15,8.91. tl'» prosscutrix was found mside ths hous®of the appellont ond she wcs recoveped vlde resovsry memo Ex.P/5. As per evidsnce of Bholaram (PW-3), when he caras to krsow that his deughter is present in ^he houss of ths appeliant, then he went tg ths pplice statiQn and !od9sd the F.I.R. vtde 5x.P/3. The prosecutrix (PW-2) has categoriealty depossd in her evidence that while . shs vias retungir®back to her houss aftsr wntchmg T.V. the accused met in & wcy <md aftsr giving tAreat te her, he took her irwicte his house, The appslfant tried to rtsnwve his ctothes and ctothes of the proaecutrix a"d tried to corismit inte-course {"''rer '%PT}, at that time -~ polics.cam?, In psra 6 of hsr eross-sxammation. shc has admitted - tetters Exx.C>.i'.l to E>/16 which-ctearly rswal that the prosecutrlx was I jTwirg few affain;w?Th ths flppeflant. t-teir evidencs also rewais that previousiy they used to mest. In posra 18 of her detail cress- sxaminatfon, she has deposed that the sppeltunt wos trisd to touch his mats orgcn "to fsmGie organ of the prosecutrix, drt- that tiras.poHce cams and recoversd the prosecutrix. In pcra 14 of hsr crosa- excBninortion, shs has deposed that the oppsllont inserted his mafe orgai •R her fsmate organ, Undergarmsnt c*f the aecused wcs seized sn 15.8.1991. he was sxQmined by the doctor on the ssms dcy. Smegma was missing ow his 9'ans psris whish is sa^estive of the fact that n&bmg of penis or washmg of penis. Detcil evidenee ef ths prosecutrix reveals that the accussd hos trisd to insert- his mate orggn in ths ppivate part' of the prosscutrix. but he faiied to msert- the sams. The accused/appslisnt h« not offcrsd <my explanfft-ion that how ths prosscutrix was found in his houss, that too in the night. intsr alia, he hos fited Sovs Isttsrs EXS.&/I to &/16 to show prsvious rsiattonship of the appetlant with the prosecutrix. l3.'I1ie svidence of the prosscutrix (PW-2) is wslS corroborglsd by the evidenceof hsr fathsp Bhotaram, promptiy fod9ed FJ.R. Ex.P/3 and recovcry of ths prosecutrlx from the houss of the appeltarrt' vtde Ex.P/5. These al! circumstancss ars sufficisnT for eh^wii^ irrferencs 1+iat the accused/appeilant hos a+tempted to commit intereoures with the prosecutrix. The ags of th®proseeutrix cn ths date of mci^rrt' was below 15 ysars, thsrsfors, th& cct of ths appellant squapely falls withirrthe cmbit of at^empt to commit r^s punishAle urKter Ssctfon 376 read with Sectten Sll of ths Indian Psnal Co<te. -. / 14.As pegards ths qusstion of cbAietton and kidnoippmg, tbs age of the pro^ecutrix at the ttrae of.incident was below 16 yeors: Msr evidence pevea!s that' white she was coming back aftsr watehm3 T.V., at the instanGs of the appetlaRt shs M«ntts the hvuae of the appellwit, even theywsre siftihg in ths 9011^0, Exs.6/1 to 0/16 show that they wsrs bSvir^ ppevioys loye affair. ^9®of the presssutrix wos within 14 to 1S /. •...•• ':\ yeaps. M psr the evidence of Smt.Rajkumari PoTKtey p>W-12). hsr secondary sexual characters were deveteped. IS.Considsnng the aforssaid avidence. especially 16 lovs tetters, it is dtfficult to hotd that ths appetlent has kldnopped or dbducted the presscutrix, but it appears that the proseeutrix hsrsfrlf hee left her parentat shsh'er and went to the houss of the appellant; but th® appeilant hos not kidriappedor abdueted her, The appeltant snd the prosscutrix were inside the house whers no third person we8 ppgsent. Ths prosscutrix was yjrgin at the time of commission of intei^eur-se. Pc>li<» Qnd other person ccime; thersfore. the (ypellant has not succescted in commissfon of intercourse. 16.While convictiry ths <ippettant under Ssctiore 363 A 366 ofths Jndicin Penal Cocle, the tricsl Court has rwt conajdered the aforssaid fnct and evidence of the cose ond thereby csmmitted jtlegatity. but convictkin of the sppetlont under* Scctfon 376 recd with Section 511 of the Indtan Penal Cods is bassd on tegal, clinching <md r-stlabie evicterK;®aiatainabie under ths law. 17. For ths foregoing reasons, the apped »partfy atlouwd. CQnvistior! & sentsncs of ths appeltant under Saetions 363 & 366of the Indiciin Penat Code are hersby set aside. The trwl Court hos awarded miniraum ssntence of thrss )%ars for att^npt to comrait rape, therefore. convictjw & sentence of the appeflant under Section 376 read with Sectton Slt of ths -Jndfan Penal Ccde is hereby matntained. The appeiksnt ;s dn/bcH. he shal* surrendsr forthwith before ths 5th Ackfitjonat Sessions Jud9s. Rdlpur for servi^ I'emammg pert of sentsi'ic®impossd upon him, Sd/- T.P. Sharma r Judge i! -»/.