HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I CRIMINAL APPEAL No. 821 of 2007 APPELLANT (iNjAlL) VERSUS RESPONDENT Vrindawan S/o Khetro aged about 25 years R/o Gautam Nagar, Supela, Polioe Station Supeia, District Durg,CG State of Chhattisgarh through Pollce Station Supeia District, Durg, CG. Shri Arun.Kochar counset fbr the appeiiant Shri Vinod Tekam, PL for the State/Tespondent. CRSMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRSMINAL PROCEDURE JUDGEMENT (Passed on S .8.2008) This appeal is directed against the judgment of conviction and order of sentence dated 3.9.2007 passed by the Sessions Judge, Durg, in Sessions Trial No. 74/2007 whereby the appeliant has been convicted for the offence punishable under section 376/511 of the 'lndian Pena! Code and sentenced to undergo rigorous imprisonment for three years and six months and pay fine of Rs.500/-, in defauit of payment of fine to further undergo simpie imprisonment for three months. 2. Judgment of convlction and sentence passed by the trial Court is chaltenged on the ground that without there being any evidence avaiiable on record to connect the accused/appeltant with the orime in question, learned triai court has convicted and sentenced him as mentioned above. 3. Heard Shri Arun Kochar counse! for the appellant and Shri Vinod Tekam, PL for the State/respondent and perused the impugned judgment and the evidence on record. 4. Case of the prosecution in brief is that on 8.1.2007 at about 12.30 p.m. when victim Karlshma (RA/-1) aged about 7 years at the relevant time, was standing in front of the gate of the accused/appeliant, he called her to his house and provided her bread. Thereafter, he made her sit in his lap, removed his undergarments as also that of her and inserted his penis into her private part. Her undergarments became wet. She narrated the story to her mother and FIR Ex. P- 2 was lodged on the same day. Spot map Ex. P-1 was prepared and she was sent for medical examination to District Hospital, Durg where Dr. Manjusha Umredkar (PW-8) examined her and submitted the report Ex. P-19. She opined ^-3^ - -2 - ^ 0. - that no injury on the private part ofthe victim was found. According to the doctor the age of the victim at the relevant time was six years. Vaginal slides were prepared. Stained undergarments v^ere seized and sent for chemica) examination vide Ex. P-20. Ossification test ofthe victim was conducted according to which the age of victim was assessed to be between 5-6 years. Accused/appelianf was also medically examined on the same day vide Ex. P-8 by Dr. K. Gopinath (PW-6) who opined that the accused/appeliant was capable of committing sexual intercourse, and smegma was absent. Stained underwear of the accused/appe!!ant was seized under Ex. P-7 which was sent for chemical examination. On examination of the underwear of the accused, presence of sperm over it was confirmed vide Ex. P-21. 5. After completion of investigation charge sheet was filed against the accused/appellant in the Court of Judiciai Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions where after trial took place. 6. In order to prove the guilt of the accused the prosecution has examined seven witnesses. Statement of the accused/appeliant was also recorded under section 313 of the Code of Crlmina! Procedure in which he denied the materia! appearing against him in the prosecution case and pleaded innocence and false implication in the case. Appellant also examined Mohan DW-1 and Sevti DW-2 in defence who have deposed that the accused/appeilant was having inimical reiatlonship with the mother ofthe prosecutrix on account oftaking water from the public water tap. 7. it is argued on behalf of the accused/appellant that the statement of 7 years old prosecutrix does not inspire confidence and she is a tutored witness. Her statement is self contradictory. He further submits that in the absence of any interna! or extemal injury on the person of the prosecutrix, her version that the appellant inserted his penis into her private part and shook himself does not suffice the case of the prosecution. Defence has tried to cast doubt on the prosecution stop/ on the ground of animosity. Appeilant is not required to establish the defence tike prosecution and reasonable doubt is sufficient for the defence. Lastly it is argued that at the best the offence committed by the accused/appellant fails within the ambit of section of 354 IPC for using criminal force with an intention to outrage the modesty of a woman. Reliance is placed in the matter of Tarkeshwar Sahu V. State of Bihar fNow Jharkhand^1 in which rt has been he!d by the Apex Court as under: "21 !n v/ew of the catena of judgments of Indian and English Courts, it is abundantly clear that slight degree of penetratlon of the penis in vagina is sufficient to hold ' 2006(4) Crimes 171 -3- accused guilty for the offence under Section 375 IPC punishable under Sectkan 376 IPC. 22. In the backdrop of settled legal position, wten we examine the instant case, the condusion becomes irresistibie that the conviction ofthe appellant under Sections 376/511 IPC is wholly unsustainable. VWiat to taik about the penetfBthn, there has not jbeen any attempt of penetration to the slightest degree. The appeilant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence ofany attempt to penetrate, the conviction under Section 376/511 IPC is wholly illegal and unsustainable." 8. tn the instant case the age of the prosecutrix to be below 16 years is not disputed. Moreover, it is established from the state of the prosecutrix Karishma (PW-1). Her age has been estimated by the Court as seven years. From the statements of (PW-2) Vandana Vende, the mother of the prosecutrix, PW-5 Dr. A.K. Sahu, PW-8 Dr. (Smt.) Manjusha Umredkar and also from the X-ray report Ex. P-6 it is ctear that the prosecutrix was aged between 6-7 years on the date of incident 9. In order to establish the use of criminal force with an intention to outrage the modesty of the prosecutrix, the prosecution has examined FW-1 Karishma Vende - the victim, PW-2 Vandana Vende, the mother of the victim, R^V-3 Smt. Ganga Bai Meshram and PW-7 J.P. Chandrakar. RA/-1 Karishama, the victim is a child of seven years. She has stated that when she was standing in front ofthe gate of the accused/appeliant she was calied by him, he gave her bread, made her to sit in his !ap and after removing his undergarment and also that of the victim, inserted his penis into her private part and shook himself. According to her statement when the accused/appeliant did ai! this, she did not raise any alarm nor did she inform it to anyone. When after wearing her clothes, she felt some wetness in her private part she informed her mother ofthe same and when her mother saw her undergarment, she narrated the incident to her. Uitimateiy the matter was reported to the Police. Statement of the prosecutrix is supported by her mother Vandana Vende FW-2 and Smt. Ganga Bai Meshram PW-3. Doctor Manjusha Umredkar PW-8 who examined the victim has stated in her cross examination that there were no external or internal injuries on her person. She has further stated that in case of sexuai intercourse with a six year girl, the injuries are sure to be present in her private part. ^s^ "%. ^^y ";":^^s^"' -^- '^ 10. Accused/appellant was atso medically examined by Dr K. Gopinath PW-6 on the same day. Smegma v/as absent on his pens and he was found to be capable of having sexual intercourse vide report Ex. P-8. After chemical examination ofthe undergarments ofthe accused as also ofthe victim, presence of sperm on the same was confirmed vide FSL report Ex. P-21. Prosecutrix was cross examined at length by the defence but she denied the adverse suggestion put to her and admitted that when the accused/appellant removed his undergarments and also that of her, made her !ie on the floor and made penile penetration, she did say anything nor did she raise any alarm. Mother of the prosecutrix PW-2 was also cross examined at iength but she denied the suggestion that she has faisely implicated the accused/appellant on account of animosity between them. PW-3 Ganga Bai Meshram has also denied that the mother ofthe prosecutrix and wife ofthe accused/appeltant werehaving inimical terms. Mohan and Sevti Bai DW-1 and DW-2 respectiveiy are examined by the accused/appellant in his defence. Mohan DW-1 has stated that prior to the incident there was some quarrel between the wife of the appellant and the mother of the prosecutrix but since he remains busy in his hotel, he cannot tell the year or month of the same. Likewise, Sevti Bai DW-2 has also stated about some quarrei between the mother of the prosecutrix and the wife of the accused/appeltant. In her cross examination she has admitted that she did not go to the place where wife of the accused and mother of the complainant use to take water. It appears that the defence witnesses have not seen any quarrel and they have just supported the accused/appellant. 11. This apart, statement of the prosecutrix PW-1 who was aged about 7 years at the time of incident is supported by the evidence of her mother PW-2 and Ganga Bai Meshram RA/-3. Merely in the absence of injur^ on her private part, her entire statement cannot be discarded up to the extent that accused undressed himself and also the prosecutrix, mounted over her and shook his penis in her private part, and the same inspires confidence. Moreover, on chemicai examination presence of sperm was confirmed on the undergarments of the victim as also that of the accused. 12. After appreciating the evidence available on record, the trial Court has convicted and sentenced the accused/appellant as mentioned above. 13. The act of the accused/appeltant squarely falls within the ambit of making an attempt of penetration which is punishable under section 376/511 irc. Moreover, the prosecutrix who was below 16 years of age on the date of incident, no question of consent of wittingness on her part arises. 14. For the forgoing reasons, l am of the opinion that the finding of conviction recorded by the trial Court are based on clinching and reliabte evidence and they do not call for any interference by this Court. / ••/' ^Si^^^ ti '•^-•^ '^./y.^' ^^- 15. As far as sentence part of the judgment is concerned, the accused/appellant has been sentenced to undergo rigorous imprisonment for three years and sixmonths and pay fine of Rs.500/-, in default of payment offine to further undergo simple imprisonment for three months which comes to be half of the minimum sentence provided for commission of rape. Thus no leniency in sentence is possible and the sentence imposed cannot be said to be disproportionate to the gravity ofthe oifence. 16. In the result, there is no merit in the appeal. The same is liable to be dismissed and is hereby dismissed. | Sd/- T.P. Sharma Judge