BrSS^ HIGHCOURT OFCHHATTISGARH AT BILASPUR [SB: Hon'bteMr.T.P.Sharma.J.I Criminat ADpeal No. 538 of 2006 APPELLANT VERSUS RESPONDENT Ashok Sharma son of Shri Sharma agsd 27 yesrs, residsnt of jnamata i nana jneeipani, urnssa, presentlv residina in the house of Shri Om Prakash Banjara, Sanjay Nagar, Tatapara, Bilaspur, Thana Civil Lines, B'Saspur.Tshsi! and District Bitespur, CG -State of Chhattisaarh throuah the Collector, BHaspur, Tahsi! and District Bilaspur, CG. Shri Viprasen Aarawal counsel for the aoDellant- <Shn \/*n/y! Tiaii'^wt P! f/^r *h ^<An^<?*"kf( snrs vir.oa ieKam PLTorms responaansstate. CRIMINAL APPEAL UNDER SECTION 374(2)0F THE CODE OF CRSM1NAL PROCEDURE (ORAU JUDGMENT (16 .9.2008) This aDDeal is directed aaainst the iudament of convicBon and order of sentence dated 9-6.2006 passed bv the Special Judge. Bilaspur, in Sessions Case No. 90/2005 convicting the accused/appellant for the offence Dunishabte under section 376 of the Indian Penal Code and sentencina him to underao riaorous imnrisonmentfor 7 vears and Davfine of Rs. 1000.00, in defautt of oavment of fine to further underao riaorous imDrisonment for six months- 2. The iudament of the triat Court is chatlenaed on the ground that without there beina anv coaent and.i-'reliable evidence aqainst the accused/aDDellant to show that the accused/apDetlant has committed the offence of rape, tearned Special Judge has committed an illegality !n convictina and sentencina the accused/aDDellant as mentioned above. One of the arounds for challenaa is that one Om Prakash has committed the .ay' "s ilSSggglj ;Ji^^S;^ offence but the accused/appellant has been falsely impllcated in the crime in auestion. \, 3. Case of the prosecution in brief is that on 28-4.2005 at about 11 .30 p-m. when after watching a TV serial Drosecutrix Radha aaed about 12 vears went to close the doo( of her house. accused/aDDetlant who was residing in the house of one Om Prakash came there and asked her to accomoanv him to his room- When she refused. he forciblv took her in his room. oressed her breast. removed her clothes. made her Ite down and committed sexual intercourse with her and keot her in his house tilt 5-30 a.m- He also threatenefl to finish her if she disclosed the incident to anvon®. On 29-4-1005 at 5-30 a m. she came to her house and disclosed the incident to her aunt - Kamla. mother. father and the Dersons of the vicinitv. and thereafter FIR Ex- P-6 was todaed at about 9 a.m- She was medteallv examined bv Dr- Nilima Sharma (PW-4) who vid®medical reoort Ex- P-3 found that 24 testh were present in her both jaws. auxiliarv hair wer®not develoDed. Dubic hair were develoDed. libia minora and tibia maiora were vet to devetoD, there was abrasion between th& libia minora and libia maiora in the size of % x % c-m., old rupture was present in the hymen and the vaaina admitted one finaer. Two vaginal slides were preoared. After ossification test. the aae of the orosecutrix was assessed to be betuveen 12 and 14 vears vide Ex- P-1 - Accused/aDDellant was also medically examined by Dr- A.S. Khan (PW-3) who vide Ex- P-2 opined that the accused/ apDellant was caDabte of sexuat intercourse. Smeama was absent on the aland oenis of tte accused- Soot map Ex,.'P-5 was prepared bv Patwarl Stained Salwar of the Drosecutrix was seized vide Ex- P-8- Vaainal slides were seized under Ex. P-9- Investigating OfRcer prepared tha spot map Ex- P-11. Stained underwear of the accused/aDpellant was seized under Ex- P- 12- Caste certificate of the Drosecutrix was seized under Ex. P-13. Seized articles were sentfor chemical examination to Forensic Science Laboratoro •'.f and oresence of sperm on the vaainal slides of the Drosecutrix and underwear of the accused was confirmed vide reoort Ex. P-16. 4. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure and comoletion of investiaation the charoe sheet was filed in the Court of Additional Chief Judicial Maaistrate. BitesDur who in tum committed the case to the Court of Soecial Judae. Bilasour. where triat commenced. 5. In order to Drove the auilt of the accused/aDDellant the Drosecution has examined as manv as 11 witnesses- Statement of the accused was atso recorded under section 313 of the Code of Criminal orocedure in which he denied the materiat aDDearina aaainst him and Dleaded his innocence and false imDlication in th& case. He also took the defenee that due to a disDute between the Darents of the Drosecutrix and himself over fetchina of water from thetao. hehasbeer.falselviroDlicatedinthecrimeinauestion- 6- Heard counsel for the Darties and pemsed the material avaitabte on record includina the iudamentofthe trial Court 7. Counset for the aGCUsed/aDpellant argued that the real culorit is one Om Prakash to whom the Drosecutrix used to visit frequentlv and the accused/aDDetlant has been falselv rooed in the crime in guestion. He further submitted that after the incident. police took Om Prakash to the potice station but aunt of the prosecutrix namety Kamla who was residing in the house ofOm Prakash saved him and he absconded- He further argued that the Drosecutrix is a tutored witness.find she has deposed against the accused/aDDeltant at the instance of her oarents and some advocate of her acauaintance and she did not know even the name of the accused/appeltant. He argued thatthe prosecution has utterlyfailed to prove the age of the prosecutrix to be betow 16 yeare on the date of incident 'fr'Bii'eiia 4. On the other hand, counsel appearing for the respondent®tate supported the judgment impugned and submitted that the prosecution has proved 'rts case inGluding^theage ofthe prosecutrix below 14 years beyond reasonabte doubt. It is argued that the statement of ths prosecutrix that the accused committed foroible sexual intercoursewith her, inspires confldence- 5. As reaards the aae of the Droseeutnx. it has been assessed bv the Courtto be 12 vears- Prosecutrix has stated in DaraaraDhs 13 and 22 of her statement that her aae at the relevant time viras 14 vears. She was msdicalh/ examined by Nilima Sharma (PW-4) who has categorically stated that the auxiliarv hair were not develooed. libia minora and libia majora was vet to develoD. breast was devetopina. only 24 teeth were oresent in her bofc iaws. Dr- Gopal Singh Kanwar fPW-2) who conducted the ossification test has stated in his evidence that on the basis of radiological examination the aae of the Drosecutrix has been assessed between 12 and 14 vears vide report Ex. P-1. Prosecution has not filed any birth certificate or the schoot certificate which miaht be conclusive in nature. However. the Court has assessed the age of the prosecutrix as 12 years- In the matter of Sidheswar QaRQU'v v. Stats ofWestBenss!, it has besn hs'd by ths Apsx C-ourt that the aae of the victim-mav be ascertained on ths basis of ora! testimonv and phvsieal features of the raped airl- 6- As reaards commjssion of forcibte sexual 'ntercourse bv the accused/aDDellant. Drosecutrix Radha fPW-1) has stated in Daragraph 3 of her evidence that when after watchina TV serial she wsnt to close the door. accused/appetlant pressed her mouth, took |ier inside his room, opened her Salwar. made her tie down, Dr^sed her breast and let her off. However. in DaraaraDhs No. 4 and 5 she has stated that accused removed her clothes and committed forcibte sexual intercourse with her bv inserting his mate Bl •AlK.ly:>SSU 143 :S|. 1 •gasiss organ into her vagina. When she tried to teave, he threatened her not to disclose the matter to anvone. In the next mornina she came to her house and narrated the storv to her aunt and oarents and thereafter FIR was lodaed in Police Station. Civil Liens. Bilasour- 7- Panchsheela (PW-8).mother of the Drosecutrix has stated in her evidence that at about 10 D-m. she went to sleeo and her dauahter Radha was watching TV. When she woke UD. Radha was not found in the house and she came in the next morniria and narrated the storv to her. Sukudu Sahare (PW-9) has stated in his evidence that while he was s!eeDina. his wffe told him that Radha was not in the house- Next momina she was found in the house of accused/appellant. On beina asked. she told that the accused/aDDellant took her in his house bv threatenina her- 8. Prosecutrix Radha at the first instance has stated that the accused/aDDellant onlv touched her breast but later she stated that he committed forcibte sexual intercourse wth her- tn her cross examination. she has admitted that she did not know the name of the accused/appellant and therefore. while lodaina the reDort she had not totd the name- Prosecutrix has stated in DaragraDh 15 of her evidence that she was tutored before makina the statement and she has stated as was told to her bv the advocate who was with her when she came for aivina statement. She has admitted that her aunt Kamla was residing in the house of Om Prakash and the Police took Om Prakash to the Dolice station- She has also admitted that there was some aareement between her aunt Kamla and Om Pratesh to the effect that she shoultf Durchase the house" of Om Prakash in whjch she wias residina but reDort should not be todaed aaainst him. 9, Panchsheela (PW-8) mother of the Drosecutrix has admitted in Daraaraoh 13 of her evidence that Om Prakash left his house- She admitted that Dolice took Om Prakash to Dolice station- Defence has tried to show that rape has been committed bv Om Prakash and not bv the accused/aDDellant but she has not stated anvthina aaainst Om Prakash as aareed to between her aunt and Om PrakasH: Nothina is suaaested to the defence that the offence has been committed by Om Prakash and not by accused/appellant or that she was known to the Drosecution witnesses- Moreover. the accused/aDDellant has taken the defence that on account of disDute between the oarents of the Drosecutrix and himself over fetchina of water from the teo. he has been imDlicated in a (ialse case. 10. First Information Reoort reveals that accused was the tenant of Om Prakash. It aDDeare from the statement of the Drosecutrix and her mother that offence has been committed in the house of Om Prakash and for this reason he was interroaated bv the Police- Over the vaainal slides of the Drosecutrix and the underwear of the accused. Dresencs of soerm was confirmed- Doctor who examined the accused has ooined that the accused was caDabte of havina sexual intereourse. tt was noticed that smeama was absent which is suaaestive of the fact that after intercourse male organ was washed. Accordina to the doctor who examined the Drosecutrix. ther®were abrasions in her Drivate oart which is atso suggestive of the fact that the Drosecutrix was subiected to sexuat intercourse- Even otherwise, intercourse with a woman below 16 vears of aae with or without consent is raoe as defined under section 375 which is punishabte under section 376 of the Indian Penal Code 11. After aDDreciatina the evidence availabte on record learned Special Judae has convicted and sentenced the Accused as mentioned above by the iudamentimDuaned. 12- After hearing counset for the parties and ctosely exafnining the evidence avaitable on record Darticulariv considerina the factthat accused has committed forcibte sexual intercourse uoon a minor girt below the age of 16 years, I am of the opinion that the judgment of the trial Court being based on coaent and retiable evjdence does not calt tor anv interference. \. 13. Conseauentlv. the appeal beina devoid of merit is liable to be dismissed and it is herebv dismissed- Judament of the trial Court is maintained- Sd/- T.P. Sharraa tit» ^ ^R--s--i