HIGH COURTOF CHHATTISGARH AT BILASPUR (SB: Hon'ble Mr.T.P.Sharma.J.I CRIMINAL APPEAL No. 1010 of 2001 APPELLANT (IN JAIL) ?j^1 1 VERSUS RESPONDENT Bunki Ram alias Bnuneshwar S/o Raghunath Ahir, aged about 22 years, occupation Agriculture, R/o village Patkura, Ghatonapara, P.S. Lakhanpur, District Surguja, CG State of Chhattisgarh through Police Station Lakhanpur Distrtot, Surguja, CG. Shri A.K.Prasad counsel for the appellant. Shri Vinod Tekam, PL for the State/respondent. CRIIWINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRi PROCEDURE JUDGEIVIENT (Passed on 5.8.2008) This appeal is directed against the judgment of conviction and order of sentence dated 22.9.2001 passed by the Sessions Judge, Ambikapur, in Sessions Trial No. 165/2001 whereby the appeliant has been convicted for the offences punishable under sections 363, 366 and 376 of the fndian Penal Code and sentenced to undergo rigorous imprisonment for four years u/s 363 and 366 each, to undergo rigorous imprisonment fbr seven yeare u/s 376 IPC. 2. The judgment of the trial Court is challenged on the ground that without there being any credible and clinching evidence available on record against t.he accused/appellant, the trial Court has committed an illegality in convioting and sentencing hlm for the offenoes punishable under sections 363, 366 and 376 IPC. 3. Heard Shri A.K. Prasad counsel for the appellant and Shri Vinod Tekam PL for the respondenfState and perused the material available on record including the judgment impugned. 4. The case of the prosecution in brief is that when prosecutrix Parwati aged about 14 years on the date of incident i.e. 28.2.2001, went to the forest for grazing cattle, the aocused caught hold of her, took her to some Sangwa forest where he committed sexual interoouree with her on the promise of marriage. Thereafter, he. took her to village Marya and kept here there for three nights and during all this period he us.ed to have sexual intercourse with her against her consent or will. Some how after four days she escaped from the forest, oame to her village and narrated the story to her parents and neighboura. Meanwhile, when the prosecutrix did not return home her father Rarhlal PW-2 lodged a missing report .3 iCTI ® vide Ex. P-6. Thereafter, FIR Ex. P-7 was lodged. Prosecutrix was medicalty examined by Dr. (Smt.) Shakuntala Khalko (PW-5) who opined the age of the prosecutrix as about 15 years. She also noticed 14 teeth in each jaw, secondary sexual characteristics were developed, and no external or internal injury was found on her person. Old healed rupture in the hymen was seen and the prosecutrix was accustomed to sexual intercourse. Vaginal slides were prepared. and sent for chemical examination. Accused/appellant was also medically examined by Dr. P.S. Kerketta PW-6 who opined that the accused was capable of sexual intereouree vide Ex. P-9A. Statements of the witnesses were recorded under section 161 of the Code of Criminal Procedure (for short the "Code") and spot map Ex. P-1 was prepared. 5. After completion of investigation charge sheet was filed against the accused in the oourt of Chief Judiciat Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions where the trial took place. 6. In order to prove the guilt of the aocused/appellant the prosecution has examined as many as 7 witnesses. Statement of the accused/appellant was also recorded under section 313 ofthe Code ofCriminal Procedure in which he stated that he is innocent and has been falsely implicated in the case. Accused has taken specific defence that the prosecutrix has not been examined by the Court but in her place her younger sister Ramratja has made the deposition. 7. After affording opportunity of hearing to the parties learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned above. 8. It is argued by the counset for the accused/appellant that the appellant has not kidnapped or abducted the prosecutrix nor has he committed sexual intercouree with her and he has been falsely implicated in the case. 9. In order to establish the guilt of the accused the prosecution has adduced. ocular and medical evidence in support of its case. Prosecutrix (PW-1) who age on the date of incident has been estimated by the Court as 14 years, has categorically stated that on the date of incident when she went to the forest for grazing the cattle, accused/appellant came there and caught hold of her and asking her not to raise cry or.else he would press her neok, took her to Bangma forest and committed sexual intercourse with her against her consent or will. Thereafter, he took her to village Marya where he kept her fbr three nights and during all this period he used to have sexual intercourse with her. However, after | four days she managed to escape and after ooming to her village narrated the ] incident to her parents and neighbours. According to the statement of PW-2| Ramlal, thedate ofthe prosecutrixon thedate ofincidentwas 14years. Pamnani! Bai PW-3, the mother of the proseoutrix has also deposed that on the date of| incident the age of prosecutrix was between 14-15 years. She has stated that her] i ».,. S' M "^ •rils^..-,-<:'" ^ daughter Parwati went to the forest for grazing cattle and at that time the accused came and foreibly took her away and when she did not come home, missing report was lodged. PW-5 Dr. (Smt.) Shakuntala Khalko has also stafed that on 5.3.2001 she examined the proseoutrix aged about 15 years. 14 teeth were found in her each jaw, secondary sexual characteristics were developed and no external or internal injury was noticed on her private part, vide report Ex. P-8A. In her cross examination this witness has stated on the basis of presence of sperm in the vaginal slides it is difficult to ascertain the time when the last intereourse took: place. According to the order sheet at the time of examination of the prosecutrbc the accused was in custody and Mr. Jagrup, Singh Advocate was appearing for him. Victim was cross examined at length but nothing has been asked to her whether she Parwati or Ramratia. Prosecution has not examined the younger sister of the prosecutrix namely Ramratia. It is in the statement of the accused recorded under section 313 of the Code he has stated that the prosecutrix was not examined in the Court and in her place her younger sister Ramratia has been examined. This defence taken by the accused erroneous and baseless. Defence has not brought forward anything in the cross examination of the prosecutn'x to disoard her testimony. However, the defence has tried to establish that the prosecutrix was a consenting party to the act of the accused but her father was not prepared to get his daughter married to the accused. Defence has' also cross examined Ramlal PW-2 and Parmani Bai PW-3 but' nothing has been asked to them which discredits their testimony. Proseoutrix has cat^orically stated that as she was helpless when the accused took her away and subjected her to forcible sexual intercouree and for this reason she oould not offer resistance to his act. Thus if the evidence of the prosecutrix is looked into in its entirety it inspires confidence and the reliance on the same can safely be placed as she has stated in unequivooal term that she was not a consenting party to the act of the accused. Had she been a consenting party, there was no occasion for her to escape ftom the clutehes of the accused and inform fhe incident to her parents and neighbours. The act of the accused squarely falte within theambit of the offence punishable under sections 363, 366 and 376 IPC. 10. After taking into oonsideration the evidence available on record learned trial Court has convicted and sentenced the accused/appellant as above. 1 do not find any illegality or infirmity in it which warrants interference from this Court. 11. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. '' S&l- -—!'' \ T'.V. Sharma Judge S1tiil