^^ Cr. Aooeal Mo.959/2004 Ramsharan Soru, S/o, Balmukund Soni, Aged about 43 years, Resident of Indira Awas Graha Gorakhpur P.S. Gorela, Distt. Bilaspur(C.G.) Versus State ofClLhattisgarh tnrough P.S. Gorela, Distt. BUaspur (C,G.). Appearaace: Shri P.S.Khare, counsel for the appeUant. Shri G.K.Beriwal, Dy. Advocate General for the State. 12S.05.20071 ^•^ Heard. This appeal is directed ^aiast tfae judgment of conviction aad order ofsentence dated 27.10.2004 passed in S.T. No. 217/2003 by ftie Court of Additional Sessions Judge, (FTC) Pendra Road whereby the appeUaat was convicted iinder Sections 376 (1) aad 506 Part II IPC aad sentenced to vmderyo RI for ten years aad to pay a fine of Rs. 500/-, ia detault of payment of fiiie to furtfaer imdergo SI for three luonfhs and RI for fhree years aad to pay a fine ofRs. 100/-, ia default ofpayment offine to further undergo SI for one inonffa wifh a further direction to run fhe senteuces concurrently. The tacts of fhe case are that the prosecutrix namely Ku, Raxua Soni, a gni aged about 15 years, is the daughter of the appeUant Ram Sharaa Soni. She was residinR wifh him in Bhatta Tola. She made report (Ex. P-1) on 25.01.2003 that ia the nionth of August 2002, when they were residing in Bhatta Tola, one day her father had tried to catoli her but he could iiot succeed. However, at'ter few days, he caught hold of her and coituaitted forceful sexual intercourse agaiitst her. After conipletion of sexual iatercourse, he had -2 - Cr.A.No. 959 of2004 ^ threateaed her for not d.feclosing the inatter to otlier persons aad fhereafter on 5-6 occasions sbe was subjected to sexual iatercourse by hun, On one day, her elder sister namely Biiidya Basiai (P.W.-15) came to her house, she narrated to her aad thereafter, the story was disclosed to other pei-sons also aad \vhea it was kaowu to all, fhe report was lodged. On this report, the oflence uader Sections 376 (1) aad 506 Part II IPC was registered agamst.the appeUant aad fhe iavestigation coiumenced. Duxing the course of investigation fhe prosecutorix was sent for niedical exainination to Dr, Nidhi Korram (P.W.-8) on 28.01.2003 who prepared her report Ex.P-7, according to which fhe girl was aged ui between 14-15 years, there were no exteraal iajuries, fhere were no injuries on the pnvate parts, fhe hyinen was old ruptured and the girl was habitual to sexual iutercourse. The prosecutorix was also seat for ossi&cation test, which was conducted by Dr. R. Jeetpurey (P.W.-ll), who prepared his report Ex. P-9, accorduig to which fhe giriwas aged in between 15-17 years. One school certificate was also cc.llected vide Ex.P-6, accoiding to wlxich the date of birth of tbe prosecutrix is 2-7-88. After completion. of usual uivestigation, the charge sheet was filed iu Court of Judicial Magistrate First Class, Pendra Road who iu tura coiiiautted fhe m.atter to fhe Court ol' Sessions at Bilaspur froin where the niatter was i^ceived on n-a&sfer by the Court ofAdditional Sessioas Judge (FTC) Pendra Road who couducted the trial and passed tlie impugned judgment dated 27.10.2004. It is agaiast tliis judgnient of conviction and order of sentence passed by ttie Sessions Court, fhe appeUant has filed this Crmunal Appeal. The Sessions Court recorded the linding that tlie prosecutrix was below 16 years of age on Ihe date of incident and it also held fhat she was subjected to fbrceful sexual iatercourse by her father aud he has also threateued her Sbr not disclosing the jaatter to any ofher persous. -a~ Cr.A.No. 959 of2004 @ Learaed counsel for the appellaat ai^ues fnat the prosecutrix was not a reUable witness and tiie conviction based on her testimonv should be set aside. On the ofher hand leamed State coiuisel opposes these arguments aad supports the judgment of conviction aad order of seiitence passed by fhe Sessions Court. I have heard leamed counsel for fhe parties at lengfh aad have also perused the records ofthe Sessions trial. Por determination of the age, troo sets of evidence have been produced by the prosecution. Fii'st is fhe certiticate issued by fhe school proved as Ex.P-6 aud the ofher is the copy of fhe register of school adiuission proved as Ex.P-5-C. TIiese dociunents have been proved by Sint. M.MuMierjee (P.W.-5), Pnncipal of fhe school, who deposed that according to the entiy iu. the school adnussion i^gister fhe date of birth of Uie prosecutrix is 2.7.88. According to fhe said date fhe prosecutrix would be aged about 14 years oue inonth aad 29 days ia fhe monfh ofAugust 2002. There is no cross examiaation of this wimess regarduig fhe entries proved by ber. The ofher set of evidence is fhe couteiits of laedical examiaation of the prosecutrix Ex. P-7, ia which, the doctor tias observed her cliaical age about 15 years aiid has referred fhe case to fhe Radlologist. The Radiologist Dr. R.Jeetpure (P.W.-ll) has proved his repon as Ex.P-9, accordiag to which, tbe prosecutrixwas aged ia betweea 15-17 yeai-s on the date of examimation i.e. on 28.02.2003. It is a case ia which fhe pareuts Iiave not been examined because the itather himseU' is aa accused and the niofher of the prosecutrix had died two yeai-s prior to fhe date of iacident. So far as the evidence pertainiiig to tbe eatries of fhe school register is concemed, in Bril Mohan Soiii Vs. Prtwa Srat Nesrtwgfi. Stnha. ared others. Am 196S SC 2S2, it has beeu held by Uie Apex Court that ia actual Ufe, it often happeas that persons give false age of ttie boy at fhe tume ot~ his adinission to a scliool so fhat later in life he would have aa advantage when seeking pubUc service for which a rnmimiirn .^•— Cr.A.No. 959 of2004 age for eligibiUty is often prescribed. The Apex Court furfber said that tlie Court of fact caunot ignore this lact wliile assessiiig the value of flie entry and it would be iraproper for ttie Court to base aiiy conclusion on the basis of the enuv, whea it is alieged fhat fhe entnr was m.ade upon false intbrmation supphed witli fhe above ino ive. In the matter ol Umesh Chandra Vs. Stdte of Seyeasthem. {A 'O ^Sf^ >4(5 ^^ i) f»ara^IS. it has been held that ejztries in the School Register are not of inuch value unless fhere is evidence to show that on what luatei-ial aiid at wbose iastauce, it is based. In this case, fhe prosecution has been failed to adduce such evidence and m.uch reMance cannot be placed on fhese entries. About fhe Ossi&cation Test, in the Modi's Jurisprudence (20t11 Edition), it is stated fhat too inuch reMance should not be placed on fhe table showing fhe age aad years of the appeai-ance saicL fasiou of soiae of the epiphysis as observed by diS'erent aufhors as it uierely iadicates fhe average and is likely to vary in uidividual case even of the same proviace owing to the ecceutricities of developinent. It ^ further stated that recent work has shown fhat fhe raiige of error aiay be up to 3 years ou either side. Therefbre, in the Ught of ftie above evidence it caaiiot be said fhat the prosecution has been able to prove that the proseuctrix was below 16 years and the findiag recorded by the Sessions Court in fhis regard caanot be sustained. So lar as fhe cornmission of rape is conceraed, fhe conviction is based upon the testimony of the prosecutrix Ramaa Soni (P.W.-3). She has deposed iu para one that her luoffaer has died two years back. They are two broftiers aad two sisters. The elder sister namely Bindya Basini Soni has already got married and she along with her two brothers and fafher were residiug ia the house at the relevaut tnne. She has furfher deposed fbat wlien her two brothers had gone out froin the house, she was subjected to forceful intercourse by her fafher. The Sessions Court has observed vide para 3 of her deposition fhat at fhe tirue of narrating regardiag sexual iatercourse, the ^s- Cr.A.No. 959 of2004 prosecutrix started weepiug in the Court aad she aayhow narrated fhe nianner of coirunission of sexual iatercourse. Vide para 4 she has deposed fhat after coininissioa of sucti intercourse for fhe first tune, as she has deposed in para 3, she was subjected to frequeut iutercourse for three-foiir thnes niore by ttie tather who also used to ;ive her fhreatenuig for not disclosing the stoiy to aaybody. However when she felt soiue paias ta the stoinach and blood started oozia^ out froin her private part (due to xuedicines given by her father), the inatter was disclosed and eveiybody came to know about fhis fact and thereafter, she lodged fhe report. She has also deposed vide para 8 that when ftiis inatter was kuown to the viUagers and ffaey became agaiust her fafher, her tather contessed before them that he had coiaiuitted the luistake aad prayed for pardon. This evidence given by fhe~ girl is supported by the FIR, which was lodged by her on 25.01.03. Now fhe question arises as to whefher reliaace can be placed on such a stateinent given by tfae prosecutrix? The law ia this regard is well settled, principaBy, if the version of the pii3secutrix iaspires the confidence of fhe Court aad the Court feels it proper to depend upon the testiiuony of fhe prosecutrix, then fhe Court laay rest fhe conviction on her sole testtm.ony aad the law does not require that such tesumony of fhe prosecutrix should be supported or con'oborated by ofher evidence. If we examine the evidence of the proseuctrix, ffae fil-st questiou anses as to why she wfll depose against her father. Adnuttedly, fhey are lower class labour grade people aud fhere appeais to be no reasons with her to depose agamst her own fafher aad to drag him in a false case, because in no nianTier it is goiag to benefit her. Adnuttedly, she was uiunarried ou the date of iucident and if she wffll choose to niake false report agaiust her own fafher for commission of rape agaiast her, it was goiug to effect her entire Hfe aad in such case, iu fact, she alone was fhe victiia. Even othenvise -e- Cr.A.No. 959 of2004 also, it appears to be quite uiuiatural fhat for no reasons aa unmarried daughter wiU make a talse report agaiast her owii lafher. In the opinion of this Court, fhe version of fhe prosecutrix, appears to be reasonable. Firstly, she did not disclose the matter to aaybody else but when the appeUant started frequenUy using her for fuffiUaient ofhis sex lust and she was adiniuistered inedicines by her fafher due to which blood started ooznig fi-oin her vagiaa and it was noticed by her elder sister, she was constrained to give report to fhe poUce and also to disclose fhe stoiy to others. Her evidence iaspires confidence of this Court so as to depend on her such statement and to sustaia conviction uader Section 376 IPC. There appeare to be no fllegality ia fhat part of fhe judgment whlch held the appeUaat guUty ofthe offence puaishable under Sections 376(1) & 506 Part II IPC. The judgnient does not require any iaterference by fhis Court. The appeal has no laerits. The same deserves to be disiaissed aad accoi-diagly it is disiaissed. The conviction and sentence awarded to the appeUant are laaiatained. .c_ Sd/- SunU Kumar Sinha Judge / L<. .7 L.e