"F ^^ \\\v HIOH COURT OF CHHATTISQARH. BIIASPUR CrimiaalApoealNo.563of2004 APPELLANTS: (InJail) KESPONDENT: 1. Vyankat, S/o Kesui'aarDestetuteJi, aged 19 years, Occupalaon Panner, K/o ViUage Dudhali, P.S. & 'l'ahsil Balod, Distt. Durg (C.Q.) '2.. Savitri Bai, W/o Mohit DestamuJkti, age 22 years, Occupation Parmer, K/o Village Dudhali, P.S. & Tahsii Balod/Distt. Diirg. Versus State of Chtiattisgarh, Through P.S. Balod, Distt. Durg (C.G.) {Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973} Present: Mr. Suresh Verma, c»unseifor the appeltantsi Mr. Vinod Tekam, Panel Lawy^p for the State/respondent. Sinfide Bench^iioai>trfft Kfo. T.^. 81kanaa»J ORAL JimGMBNT (DeUvered on »thSeotember. 2008) l. This appeal is directed against the judgment of coiwlction and order of sentence dated 18-6-2004 passed by the Additionai Sessions Judge, Balod, in Sessions'1'rialNo. 160/2003 whereby leamed Additional Sessions Judge after holdmg the appettants guilty for commission of offence under Sections 363 read witli Section 34 & 366 read with Section 34 of ttie l.P.C., sentenced each of them to imdergo K.l. for three years & pay a fine of Ks.500/-, in default of payment of tme to further iindergo K.l. for two months on each count. Learn^i AdditionaA Sessions Judge also convicted appellant No.l under Section 376 (1) ofthe l.P.C. and sentenced him to undei^o K.l. for seven years & pay a fme of Ks. 1,000/-, in default of payment of fliie to further midei^o K.A. for four monttis and appeltant No.2 under Section 506 Part-1 of the l.P.C. and sentenced him to imdergo R.L tor two years Bs pay a fine of Ks.500/-, in default of payment of fi.ne to further undergo K.l. for two months. All the sentences were directed to run conciirrentfy. 2. The mipugned judgment is chatlenged on tlie ground that without any evidence pruna fade sujffident for conviction, leamed tilal Courfc has convicted and sentenced the appeiiants. 3. I have heard learned counsel for the parties and perused the impugned judgment as also the record ofthe trial Court. 4. Case of the prosecution, in brief, is that tbe prosecutrix (PW-4) was prosecuttng her studies in tier matenial grand father's house at Village Dudhali sinee last four years. At tAiat time, marriage of her uncle VishaA Desiimukh was going on. On 11-5-^003, Baraat has gone to Viliage Chirchar. The prosecutrix was in her matemal grand father)s house with her aiuit & other ladies. At about 8 p.m. on belng told by her aimt Savitri Bal, appeliant No.2 herein, that she wants to go to answar fhe call of nature, the prosecutrix went along with her aunt Savltri Bai to Kharkhara canal near the bank of river. InitiaUy, the proseeutrix was not inclmed to accompany her aunt Savltri Bal, but, the prosecutrix was compelled to accompany her aunt. Appellant No.l Vyankat Deshmukh was already standing there, he hold the hands of the prosecutrix on whlch the prosecutrix ralsed CTies whereupon Savitri Bai closed her mouth and dragged her ness the canal. Thereafter, Savitri Bai left the place and Vyankat tias committed rape on the prosecutrix and ran away. When the proseciitrix was coming to the house, on ttie way, her aunt Savitri Bai met her and threatened her not to tell about the mcident to anybody, otherwise, she would kill her by bringing ruffians flpom Bhilai and she forced the prosecutrbc to many Vyaiikat The prosecutrix reached home weeping and on being asked by aunt Mentea & matemai ^and mother Binda Bai, she narrated the incldent to them and also to her uncle Yuvraj who was in home at that time. 5. After the maniage in the house of the prosecutnx, the matter was reported by the prosecutrix in PoUce Station Balod vide Ex.P-8. 3 ^'i ^ '^,^^J After obtaining consent from the prosecutrix and Sub Divisional Magistrate, Balod, the prosecutrix was sent for medical examination before the Lady Doctor of Balod. Underwear of the prosecutrix was seized. Green colour Salvar Kurta of the prosecutrix stained witti sperm & her blue colour underwear were seized vide Ex.P-1. Statements of the witnesses under Section 161 of the Cr.P.C. were recorded. Appellant Mo.l Vyankat was arrested vide arrest memo Kx.P-13 and appellant Mo.2 Savttri Bai was arrested vide arrest memo Ex.P-11 in presence of the witnesses. 6. After recording the statemente under Section 161 of ttie Cr.P.C., and after completton of investigation, charge sheet has been filed before the Judiaal Magistrate, Mrst Class, Baiod, who in tum, committed the case to the Coiirt of Sessions Judge, Durg, J5'om where ieamed Additionai Sessions Judge, Diu^, received the case on transfer for ti-iaJ. 7. ln order to establish the guilt of the appetlants, the prosecutioii has examined as many as 12 witnesses. Statements of the accused/appellants have been recorded under Section 313 ofttie Cr.P.C. in which they denied the circumstances appearing against them in the prosecution evidenee, pleaded irmoeence and false tmplication. They have examined one witness namely, Mulsesti Yadav (DW-1) in their defence. 8. At is argued on behalf of the appellants that appeUant No.2 has not (X)minitted any otYence aiid appellant No.l has been falsely implicated in the case at ttie mstance of matenial uncle of the prosecutrix i.e. the husband of Menka who was having enmity with ttie appellants. The prosecution has not adduced any evidence to the effect that the prosecutrtx was aged below 16 years at the time of incident and she faas been subjected to seacual intercourse. 9. On the other hand, judguaent is supparted on befaatf of ttie ^ate/ respondent H WKis^.. '; ^ '^^ A: 4 :^^ 5^ lo.ln order to establish tlie guilt ofthe appellant®,the prosecution is required to prove the foUowing mgredients ofthe offen^i: - (i) At the tmie ofincident i.e. on 11-5-2003, age ofthe prosecutr^ was below 16 years. (ii) The appellants kidnapped the prosecutnx firom her gmaid parents, at the tune of the incident. (iii)The appetlants abducted the prosecutrix wlth intent to compel her for intercourse. (iv) Appellant No. 1 has committed sexuai intercourse witti the prosecutrix. (v) Appellant Mo.l Jaas committed sexual intercoiarse on ttee prosecutrix against her wiil and consent. l l.1n onler to establlsh that the age of the prosecutrix was below 16 years at the time ofoffence, the prosecution has adduced oral and documentaiy evidence. Age of ttie prosecutrix (PW-4) was ascertamed by the Court on 9-2-2004, aftar eight month®of tfae ineident, as 16 years. The prosecutrix herself has stated in her evidence that her date of birtti is 23-1-1988. in her cross- examiaation she has stated that her age on the date of recording her evidence is 16 years. The prosecutrix was e^amined by l.Nr'. Mrs. S. Claudius (PW-2) who has stated ta her evideaace that the prosecutrix has 28 tooth, both the breasts were fulfy developed and her age was aboiit 16 years. She was als@ examtaed by Dr. A.K. Sahu (PW-11) and on tlie basis of exaDainationt> he opined vide Kx.P-10 that the age ofthe pFosecutrbs: is about 16 years. l2.Thannulai Shrivas (PW-6), teaciier, has stated lii lus ewidcaice that accordmg to the school entry re^ster and certtficates Articles 'A" & <SB?, which are mark sheets of the Board r^lating to the prosecutriXy date of btrth of the prosecTOtrix is 23-1-1988. Although the prosecution tias failed to sh@w that wfao tias told or informed to the school regardir^ the date of btathi of tbe prosecutdx, but on a bare perusal of ttie evidenG^ of the prosecutrix hersetf as also the evidence of tfcie doctors, it is established that at the time of incident ttie age of the pn>seeutrix was below 16 years. ^' l3.As regards the commission of rape on ttie prosecutrix, the prosecutrix has specifically stated in her evideiice tfeat at the tune of incident, sfoe was living in the hoiise of har materHai graiid father, on 11th May, 2003 there was msrriage ot her matemai uncle Vishal and male members of the family had gone to tte Barat. At aboiit 8 p.m^ her matemal aunt (Mami) Savttrl Baiy appellant No.2 herein, told her tx> go to ea®eherseM, she refused to go, but ultimateiy, stie was compeUed to go alcxng witii her axuit and she accompanied her aiint, when they went to GQLSS near Kharkhara eanal, appeilant Mo. 1 Vyankat came to h^F and cauglit hold ofher hands. Thereafter, Savttri Bai alsocame and botti tjae appellants draggedhertowardstfeiEecanal. A^eliant jNo.2 Savtai Bai left her with appeUant No.l Vyaaka^ tie foix;efiiUy removed her clothes, she raised cries, ultiniateJ^, tie thiew her cm the ground and committed sexual intercours®with faer. After commission of tntercourse, appellant No.l Vyaiateat raii away. After wearing Jier clothes, when she was coniiiig baek, appeilaaat Mo.2 Savitri Bai met lier on the way and told her that if ^ie witt narrate the uicident to anybody, her biottier Vyanteat wiU call ruffians Irom Bhilal and they will beat her. Bfae came tp lier matemat grand fattier>s faouse and started we^pingj, on whieh her matemal grand mother Binda Bai & her eNer aiMit Mentea askeri het as to what has happened, but out of fear she did not tell anything to them. Thereafter, her mateaiial grand mother <teelcteF aunt went to her matemat uiK;le Yuvraj and all ©fthem asteed her whereupon she told the inddent to theni. Ther^ore, the persoias retumed lErom Barat and on 13th May, 2003, she lodged the F.1.K. vide Ex.P-6. She was exanamed by the dcx^tor for whk;fa she has given consent vide Ex.P-7. Her Salvar sult, Dupatta and underwear wfalch she was wearing at the time of ua@adent were seized vide Ex.P-1. The Patwari has prepared the site map vide Ex.P-8. The prosecutrix has furfctier stated that stae studied in the school at Vitlage Uudhali. She has also stated thert the doctor has taken her X-ray and prepared the report vide iix.P- 10. 6 l4.Vishal Singh (PW-5), uncle ofthe prosecutrix, has supported tfae version of ttie prosecutrix m detali. Ghasiiam (PW-1), father of the proseGutrix, h^ stated in his evidence that wh%i he csame froni the Barat, her daughter told the inddent to him. l^atwari B.S. Neta Swami (PW-7) has stated la tus evidcaiee that he taas prepared ttie site map Ex.P-8 and Panchnama Jfix.P-9. Marendra Harihamo (PW-8), Inspector, has supported ttie c^ise of the prosecution. Yuvraj (PW-9), Head Constabiei. wfao is iincle of the prosecutrix, has stated in his evidence that the prosecutrix has told the inddent to Nm and she lodged th.e report. His wtfe Menka @ Dharani Bai (PW-10) has atso corroborated the evidence of the prosecutrix. l5.The prosecutrix was examined by Dr. Mrs. S. Claudius (PW-2) who has stated in her evidence that on examinatlon she found one laceration in tfae size of ^ cm. x 1 m.m. x 1 m.m. over ttie vagina of the prosecutrix, there was tendemess & reddishness over her vagina. She got prepared two sMdes of veginal smear. She has examined the prosecutrix and prepared the report Ex.P- 3. She has also examined her clothes vide Ex.P-4. Her clothes viz., Satvar Kurta, Chunni & underwear were sei^d vide Ex.P-1, same were sent for chemicalexamination to the Forensle Scien^s Laboratoiy, Kalpur vide Ex.P-14 aad presence of tiuman spenn was conj5rm.ed on her Kurti 8& underwear vide F.S.L. report Ex.P- 15. l6.Both the appeliants had tried to establish that the prosecutrix was Uving with her uncle Yuvraj & others. There was illicit relationship between Savitri Bai & her present husband Mohitram, Savitri Bal conceived and lastly, she was married with Mohitrani. Savitri Bai was harassed & tortured by the matemal uncle and relatives of ttie prosecutrix. The proseGUtrix has falsely implicated Savitri Bai and her brother Vyankat at the tnstance of her matemal uncle ssid relatives. l7.The prosecutrix has admitted the illicit relatlonship of Savitri Bai & Mohitrain and their marriage, but she has denied the ^'^ ^ suggestion that she has faisely tmplicated the appellants at the instance of her uncles. Ohasiram (PW-1), Vishal Singh (PW-5) & Yuvraj (P\A»'-9) had also denied the su^estion of false ImpMcatlon ofthe accused/appellants Inthe cnme in question. is.Appellant No.l Vyankat has also tried to elicit in the cross- examination of the prosecutrix that she was having lllicit relattons witii him and also with one Devanand, but she has deided tfaie said suggestion. The appellants have cross-exainined the prosecutrix at length and tried to establish the theory of consent, but the prosecutrix has categoricalty denied the theoiy ofconsent in her cross-examination. Evidence of the prosecutrix is supported by the ocular evidence of Ghasiram (PW-1) - fattier of the prosecutnx, Vishal Sii^h (PW-5), Yuvraj (PW-9) & Menka @ Dharam Bai (PW-10) as also by the medical evidence of Dr. Mrs. S. Claudius (PW-2) which is sufiicient for drawing inference that appellant No. 1 Vyankat has committed sexual intercourse wlth the prosecutrix without her wi!l and consent. l9.As regards kidnapping and abduction of the prosecutrix, ttie prosecutrix Jhas stated in her evidence that her matenaal aiant appellant No.2 Savitri Bai compelled her to accompany her for easing to herself, she accompanied her and when they went to Kharkhara canal, appellant JMo.l Vyankat came to her and botti the appellants, who are brother & sister, dragged her towards tlie canal, Savitri Bai ieft her with Vyankat and Vyanteat committed rape on her and ran away. When Vyankat rssi away, stie started going towards her house, Savitri Bm who was standing on the way, met her and toid her ttiat if she will tell the incident to anybody, her brother will call niffiaas from Bhiled and they will beat her. This conduct of appellant No.2 Savitri Bai shows tbat this is not a sunple case ofaccompanymg Savitri Bal, but she has intentionally compelled tfae prosecutrix for accoiapazymg her and enticed her for coming out of the house, ttereafter, she has facilitated Vyankat for cominission of rape on ttie proseeutrix. Appeilant No. 1 Vyankat reached to the spot prior to Savitri Bai & the prosecutrix reaching ttiere. These fs^ta are suffieient for C^^OL drawing inference that both the appellants had kidnapped the prosecutrix for compelling her for intercourse and after kidnapping her appellant No. 1 Vyankat committed rsipe on the prosecutrix. 20.As regards the question ofthreat, Savitri Bai has tfareatened the prosecutrix that if slie will narrate the incident to anybody, Vyankat will call ruffians fi-oin BhMai and they wili beat tier as of result, the prosecutrix out of tear has not told the uacident tbr some time to anybody, but ultimately, she llas narrated the incident to her uncle & other relatives. This shows that Savitri Bai has threatened the prosecutnx and as a result of ttM-eat, the prosecutrix has toried to conceal the incldent i.e. the heinous ofience of rape for some time, but when her relatives came and asked the plea, she narrated the incident to them. Sl.After appreciating the evidence available on record, leamed trial Court has convicted & sentenced the appellants to the manner atbrejaientioned. Conviction of the appeltants is based 011 reliable and ciinching evidence which is sufficient for their conviction. 22.As regards the question ofsentence, appellant No.2 Savitri Bai is a lady aad matemal aunt oftfae pn)secutrix, it was her du1y to save the prosecutrix from any conttogency and harassmant, offence and incident, but instead of saving her, she has compelted her to go out of her house and facilitated appetlant Mo.l for commission ofttie offence ofi^pe upon the prosecutrix as a result of which appellant Mo.l, who is brother of appeUant No.^ - the matemai aunt of the proseeutrix, has committed rape on the prosecutrix. Appetlant No.2 Savitri Bai has not only committed the ofience of kidnappuig & abduction and criminal intimidation, but she has also brought down the pious relationship of brother, sister, aunt & niece. Both the appellants do not deserve any sympathy. 23.For the foregoin^ reasons, 1 do not find aay merit in tiiis appeal, same is IteLbleto be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge