^ t.. ^> CF0000064533 XIM88/(JaiI) CJ.P.R.—5,000-9-81 ^? l..ta IQ^-'^i 2- Q *t..,^~7^ £--^~' fs~~ ''2 ".n-::-. ,3 ^E"-, .^^ .'" ^- 7 ^3' NO.——S-S-L——_ Name -BllLUTM^ ^oJlu' @ L^lj^ OT' Fatlier-s name —S.a-sia—EjSLQ3__kfiJjLU——- Residence-^ni^?-CJ24--QliA-USAge--^£—,^————-— Sui^^l^. ' / ~ ,„. Senteneed to—]-,—^-,-^—n—,=—on —&—4—^XC2:S— ' ^- i' ; ^. _ , /-I _^.._ t i ,^ 1. Under- section —-y-^^ by -^a^—^h.CLKya±AL^J^O^_ .^cU.}:; S7Uflj!.. ^•&^Si'??:^..4 IA.^ ^.e.,.. ^;uf^ ^- -s^c^o^. j Lud^e D u rg- ^ n,.lp.^ 0. if is explained to the prisoner that if be states or wishes to be represented by s Jegai practitioner tLe AppeJate Court will hot proceed with t.he base for seven days unJess the legai practitioner appears. If the legai praetiiioner does not appear with m seven days he may not be heard at all If tlie prisoner states that lie does not wish to be represeoted by iegal practitioner the court inay proceed Sii once with the case and will not be obliged to give a hearing to any lega] praetitioner who should appear. Dafe of Application for copy of Judgement .Hate ofwhich copy received Date on which A^peat seiit .g%s&*. th.^.-{Y:-:-:—:'^'w''tKivKI"'w'1W*'?,-efr.V(it— Yes/No. i WfieniSH^^somrTwIsEes'i^e^resglS^ "9I'" "S'"D- ; ..,C?',iJ~'..l':X.:'-?-^.^";^ '..~--- "s"''v^s!MK:My'^^:^v No.——2-£^____^ : Continued in— ——£LS;hl.£_L_ja,|__^^[^-(^/ ' - . ' .No.—--?Q^^^__^—^ —^^-^COZ^ Rorwarded to the CHIEF JUDICIAL MAGISTRATE ——-^-UJ=^____ ls^wl&.a.copy °{.^me»or orfer pa,sed in the case for f^vour o. trammissionto theproperAppiUiateGourt. ^" '"'"" "" T""°" '"' '"our 01 _5gBeTin(endea^ Date ofreceipt in C. J. M.'S Office- Dateefreceipt ofrecord to accompany- Memo of ApDeaI oJLtIu—Ar.nr.i.-.^-ci. i_-- so Itewssy iJ.i'-...i.i.;^..i^il.i:ia.iiU.;. HI6H COURT OF CHHATT[S6ARH AT BILASPUR Cr. Awwal No.2403/2000 Single Bench: 1-lon'ble Shri t>ilip Raosaheb beshmukh, J. Bhurawa Lodhi Versus State of Chhattisgarh Smt. Savita Tiwari, Counsel for •the oppellant. Shri Ashish Shukla, ©overnmentAdvocate/Addl.Public Prosecutor for •the State. JUD6MENT (Delivered on 28th of March 2006) This appeat is directed against the judgment dated 5.4.2000 delivered by Smt. Shakuntala bas, Additional Sessions Judge, Durg in Sessions Case No. 263/99 whereby the oppellant wcis convicted under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.500/- omd in default to undergo additional ri9orous imprisonment for three months. 2. Factualmatrix in brief is that on 3.5.99 the prosecutrix, aged 12 years was living with her parents as a tenant in the house of the appellant herein situated at Contractor Colony, behind Lal Bahadur Shastri Hospital, Supela, District Ourg. At about 2.30 P.M. mother of the prosecutrix was sleeping. Father of the prosecutrix had gone to work. While the prosecutrix went to the room for drinkin9 water, the appellant canne there from the adjacent room and forcibly took the prosecutrix to his rooni ond after making her lie on the cot, the appeltont herein lifted the lahanga of the prosecutrix and committed rope on her. The appellant gogged her mouth when she attempted to -^' ^ i,l VS - K- shout. F.I.R. was lodged by the prosecutrix at Police Slution Supela on 3.5.99 at 5.15 P.M. narrating that the appellant was forcibly trying to effect penetration but in this effort the semen got ejaculated and her tidiangagoi stained with the semen of the appellant. 3. The prosecutrix was sent for medical examination. t>r. Smt. D. Chakravarthy P.W.7 on 4.8.1999 <md did not fine ony marks of violence on her person. She opined while testifying before the Court- •that deep penetration had not taken pkice. She prepared two vaginal slides <md after sealing •Hiem, advised chemical examination thereon. The lchcnga of the prosecutrix was seized vide Ex.P.2. One Janghiya wds seized from the appeltant on 4.5.1999 vide Ex.P.3. On being sent for chemical analysis to the F.5.L. vide report dated 8.7.1999, presence of semen and human spermato2oa was confirmed on the kihanga (pett'Jcoat),J<OTgA^(underwear)andthevaginalslide. T1ie appellont was medically examined by &r. I. K. Wadhwoni P.W.8 who did not find any injury on the private parts of the appellant. 1-te opined that the appellant was capable of performing sexual intercourse. After completion of investigation, the appellant was prosecuted for offence under Section 376 I.P.C. 4. The cppellant abjured the guilt, pleaded false implication due to non-payment of rent by •the mother of the prosecutrix tind further asserted that he was incopable of performing sexual intercourse. No evidence in defence wos adduced. Leamed trial Judge relying upon: the testimony of the prosecutrix, Asha Bai P.W.2, the mother of the prosecutrix, Niranjon P.W.3, a neighbour and also the report of the F.5.L. dated 8.7.1999 and the medical evidence convicted and serrtencsd the oppellant as aforesaid in para -1. 5. Smt. Savita Tiwari, leamed counsel for the appeltant has assailed the conviction of the cppellant on the ground that the f< 0,9^' -9- L? absence of any injury on the penis of the appellant and also on the prosecutrix renders her testimony unworthy of credit. Relionce was placed on Rahim Bea y. The State ofU.P. reported in A.I.R. 1973 SC 343 wherein it was hetd that in a case of rope alleged to have been committ-ed by a fully developed man on a girl of 10 or 12 years who was v'trg'm and whose hymen was intact, absence of injury on the male orgtin of the accused would point to his innocence. Smt. Savita Tiwari, leamed counsel for the oppellant prayed in the altemative that the appelloint was in jail since 5.5.99 ond had already undergone incarceration for a period of over six years and ten months. She proyed that in the facts ond circumstances of the case, the sentence awarded riiould be reduced to the period already undergone by the appeltant. On the other hand, Shri Ashish Shukla, leamed Sovemment Adwcate argued in support of the impugned jud9ment. As regards the prayer for reduction of sentence is concemed, he drgued that in view of the commission of rape on a minor girl aged about 12 years, the sentence awarded by the trial Judge is adequate cnd does not call for any interference. 6. Having heard the rival contentions, I have perused the record of Sessions Case No.263/99. F.I.R. Ex.P.1 lodged by the prosecutrix shows that after making her lie on the cot the appellant was forcibly trying to penetrate his male organ inside her vaginal orifice and in this process ejaculation of semen had taken place which had stained her kihanga. She has given a minute description of the monner in which the appellant forcibty took her to his room adjocent to the tenonted premises ond after makin9 her lie on the cot, ^aread her feet and placing himself in between, inserted his'male organ inside her vagjnd and committ-ed rape on her. The testimony of the prosecutrix is futly corroborated by the report of the F.S.L. cbted 8.7.99 which shows s..1 ^ -1-1- •<st that the vaginal slides of the prosecutrix as also her hhanga (petl-icoat) we.re found to contain semen and human spermatozoa. The testimony of Sub-Inspector Sopinath 5and P.W.6 in para 5 clearly shows that the report of the F.5.L. had been tendered during his evidence by the prosecution. The mere fact that the document has not been exhibited would be of no avail to the appellant. The testimony of Asha Bai P.W.2 fully corroborates the version of the prosecutrix regard'mg the rope committed upon her by -the dppellont. I have minutety perused the testimony of the prosecutrix. She has stood the test of cross-examination and her testimony is wholly reliable ond worthy of credit. Medical evidence of Or. Smt. &. Chakravarty P.W.7 also shows the possibility of penetrotion of the male organ, -riiou9h not comptetely in -rtie vaginal orifice. This also finds corroboration from FJ.R Ex.P.l. The evidence of Jasumnta Bai P.W.4 and Asha Bai P.W.2 also shows •rtiat bo-th feet of -Hie wife of the appellont we crippled ond she eams her tivelihood by begging. It oppears that it was on this count that the oppellont strongly felt a surge of lust and committed rope on a hapless minor girl aged 12 years who wcis livin9 in his house as a tenant. 7. For constitutin9 -riie offence under Section 376 I.P.C. mere penetration within the vulva or vagina is sufficient. Deep penetration of -rfie male orgcn is not necessary for constituting the offence of rape. Considering the medical evidence of Dr. Smt. O.Chakravoa'ty and also the facts nientioned by -Hie prosecutrix in the F.I.R., it appears thot comptete penetration had not taken place and the appetlant had ejacutoted soon after his male organ was introduced in the vaginal orifice of the prosecutrix. In the facts and circumstances, it wns therefore, not necessary that the appellant would have sustained any injury on his male orgon. Oue to these reoisons, case of Rdiim Beg B R1 Mi ii%3" liffi MK • '^ ^ I? sfSi ^>^s^?4^'p'' iB'] 111 li !iy]i..;iisi (supra) cited by leamed counsel for the appellant is of no avail to the appellant. 8. The defence that the oppellant was wholly incapable of performing sexual intercourse is rendered false by the testimony of Or. Wadhwoni P.W.8 who found that the uppellont was copable of performing sexual jntercourse. The defence that the prosecutrix had falsely implicated the appellant due to non-poyment of rent is not even ptausible. The testimony of the prosecutrix, aged about 12 years, is wholty reliabte, mspires confidence and in view of the corroboration from Asha Bai P.W.2 and the medical evidence of &r. Mrs. Chakravarty P.W.7 ri9htly formed the basis for the conviction of the appellant under Section 3761.P.C. 5o far as the sentence awurded by the leamed trial Judge js concerned, considering the monner of rape on 01 hcpfess girl aged 12 years by the appellant, the mere fact that the oppellant has undergone incarceration for a period over six years and ten months would not in any manner entitle the appellant to any leniency in the sentence. In a tradition bound and conservative society, the shame of sexua\ o^sault on a girl aged 12 years cannot be lost sight of. The Courts have to diq>lay a greater sense of responsibflity and to be more sensMve whjle dealing with charges of sexual assault on women, particularly of tender age and children. For such heinous offences, such a sentence has to be awarded which would discourage wolves in the society who are on the prowl for eosy prey, more so when the victim of crime is a minor child. 9. Havin9 thus considered the rival contentions and the evidence ted by the prosecution, I am of the considered opinion that the conviction of the appellant under Section 376 I.P.C. and the sentence .EiiiliHa. awarded thereunder by the trwt Judge are well founded and call for no interference. 10. In the result -rtiis appeal being devoid of merit is dismissed. Sd/- Dilip Raosaheb Deshmukh Judge Aiidrt. u t •\