Crmai Anneai No.9 of (106 iin 2 2 PT: , Bhagim'fhi; 5/0 Moan Rawaf, aged 20 years, Rio ViiEage Mafhaia‘abr-i, Poiice Sfam‘m Songari, Bis?‘r. Rajnandgmr. {cm Versus RESPONDENT : 5mm of Chhaf?ésgar-h'. Through Paiice Sfafion Dongargaon, Disfi'. Qajnangaon (deg {Crignnai appeal uncler Secfion 374 ) of fhe Code cf Criminal Procedure: 1W3} é (Z ‘n-s n 7 f’resen‘i‘ : $ Mr. A.L. Singmui: Advoca're appears on behalf of Mr. S.C, Vermo} counsei for fhe anneHcmt. r F Miss Sangee‘m Mishro, Panel Lawyer for The Sfa‘fefrespondent Sinqle 3ench: Hoa‘bha Mr, T‘i’. $harmao i 'ORAL 3UD$MENT (341-2008) . This jail appeai is direc‘red agains? The judgmenf of convid'Son £1 order of semence dafed 29-10-2005 passed by The Sessims Judge; Rajnandgaon in Sessions Triai No.41/2005 whereby iearned Sessions Judge aHer hoiding fhe appeHam' gum-y for commission of 'khe offence of rope: convicfed him under 5ec1'ions 342 (ii 376 (63 of The I.P.C. and sentenced ‘ro undergo imprisowmen? for six mon‘ths 6: #o unoergo RI. for Teri years and pay a fine of RSZiOOOf—t. in defoui‘r of poymenf of fine ‘ro fur'Hner undergo simoie imprisonmenf for six months, respecfiveiy. Bo‘rh fine semences were direc'red To run concurren'riy. 2. The judgmenf is choiienged on fine ground i‘ho‘r wi'fi'iou‘r any evidence reioiing To commission of fine offence of rape: The Trial CourT has convicTed & senTenced The oopeiiom in The aforesaid manner. HIGH CQURT (3F CHHATTI56ARH BELAEEPUR APELLAN h rgae d A b). 3. Case cf #ze prosecu'n‘ion, in brief, is Tha‘r ‘fhe prosecu'rr-ix (PW-Z) is aged abouf 5 year-S on fm da‘re of inciden? Le. 16-3-2005. On fhat day af abou'l' 12 man, when she was playing wi?§1 (mail-law child Arum she was caiied by The accwed fhr'oug'h anoii'iar' chiid Rani for providing Samosa. The prosecufrix citing wi‘ii’s Arum wam +0 fhe house of The accused. Her- grand- mofher Sur‘jn gai was sif’l‘ing in fram' of her house. Af‘?er seme‘i’ime: fhe prosecui‘rix came fmm “me house of ‘ihe accused and sfarmd weeping near her grand—mofher. When the pmsecu?rix was asked by her- grand—manner Surja Bail she Toid her inn? The‘éccusea‘ provided her one Samosa and af'ferjending ofher chiidren ouf of his house’ he iay down her over the co‘r and offer removing her undergarmen‘r as aiso his ciofhes, he siepf over her and comrnitfed rape on her‘ Surja Bai (PW-1) saw The priva‘re part of +he prosecufrixifhere‘was sweiiing over i‘r and sfain of sperm was present; “(her-e She came out of her house and caiied apon The accused on which fhe accused ran away. She immediaTeIy narra'l'ed the inciden‘r f0 ‘rhe villagers and lodged The FER. on The same day vide Ex.P—1. The e. prosecui'rix was sen‘l' for medical examination vide EXP—8A and she was ’ /v£« examined by Dr. Smifa {PW-12) vide Ex.P—8. The do’cfor found fha'l' fhe sexual characfers of fhe proseeu‘rrix were no? well developed. 28 tee'rh were presen‘l' in her jaws. Labia magor oedema‘rous and Tenderness was present Red colour abrasion was presenf over labia minora. Tenderness was presen? over clitoris and hymen was infacf. Vaginal orifice is nof admif‘ring even “rip of lif‘i'le finger. The docfor opined Thaf The nrosecufrix was abducted so affemp‘r sexual infercourse. Her frock & undergarmenf were seized vide ExP-Z. Undergarmen? of The accused was also seized vide Ex.P—3. Spof mop was pregaared by The Pafwari vide EXP-4. The accused was also examined by “the doc-for 'vide EXP—6 and he was found capable of commiffing sexual intercourse. Slides of vaginal smear of +he prosecmrix were prepared and same were seized vide EXP-10. Seized arficies were senT for chemical exominai'ion 1'0 Forensic Science Labomfory: Raipur vide EXP—14 and presence of human sperm was confirmed over frock. (ii underwear of fhe prosecu‘i‘rix and also on The undergarmem' (underwear) of fhe accused vide ExP-lo. re 1 a \w . AfTer compieTing The invesTigaTion, charge sheeT was filed before The Chief Judicial Magisfr‘afe, Rajnandgmn who ir: mm commi‘r‘red fhe case to The Cour? of Sessions Judge: Rajnandgaan. . In order To establish 'rhe guig'f m‘ fhe accused} The prosecu‘rion has examined as many as 12 wi‘i’nesses. Smi'emen? of 'fhe accused was recerdad under Szcfion 313 of The Cr.P.C. in which he denied the circumsfances appearing agains‘k him, pieaded innocence and faise implicafion. . Afier affar-ding opgmr-tunify of hearirag 1'0 ‘rhe parfies, learned fria! Couri’ . I haveé heard iearned cmmsei far We parfies and perused ‘rhe impugned Judgmenf as aiso +he record of The triai Caur'r. . Learned counse! for The appeiianf argued fha'r fhe prosecu‘rrix is a 5 years aged chiidi rm infernai injury was found aver her bady/griva're gar‘rs. r r n has wwvia‘i‘ed and semenced The appeiiam‘ as aforemen‘rioned. W\NI Accused famiiy d: campieinanf famiiy are in inimicai terms and ihe accuSed‘ (5 has been faiseiy implicafed in fhe crime in ques‘rion a1- fhe instance of 1'he grand-mother cf The prosecui‘rix namely: Surja Bai. Even The doc‘i'or has no? opined commission of sexuai intercourse wifh The prosecufrix. . On The oTher handr The judgmenT is supported on behalf of The STaTe/ responden? and if is submit-red Thai The appeiiani‘ has commiTTed sexual inTercourse wiTh The prosecuTrix, aged abouT 5 years. Injury was found over erivafe par-T of The grosecuTrix which is suggesTix/e of sexuai inTercourse. 10.In order To consTiTuTe The offence cf rape: compieTe peneTraTion is noT required, even 9arTia3 aeneTmTion is sufficienT To consTiTuTe The offence. In order To prove The guilT of The accused The prosecuTion has adduced ocuiar and medical evidence. The prosecuTrix (PW-2) who is aged abouT 5 years has sTaTed in her evidence ThaT while she was playing wiTh oTher children, she was caiied by The accused on which she wenT To The house of The accused where The accused provided her Samosa. She has also sTaTed Tha? me accused after bying her 9n The floé?‘ commi'r‘l’ed sexuui infer-caurse with her. She came ouT af his house and nor-mfed 1he incidem’ To her grand-mg‘rher Surja 3aif Thereaf‘rer‘ hzr grand-mother abused The accused and The accused ran away‘ They wenT To Dongargaon and ThereafTer', They wem Ta Ragnandgaan where she was examined by The docTon Surja Bai (PW 1) grand—mafher of The pmsecuTr‘ix, has sTaTed in her evidence ThaT on The faTefui dav her grand daughTer (The prosecuTrix) was caiied bv The accused on which she wenT To The hause of The accused Af’fer some Tame The prosecuTrix came ouT 6f The house of The accused wiTh a piece of Samosa aT ThaT Time she was weeping and afTer oaemna her xinderwear she Toid her ThaT The accused lay down over her: Then she saw her undergdrmenT There was sTain over her undergarmenT & buTTock. Thereaf’rer, she shouTed on The accused on which The accused ran away‘ 5he caiied The KoTwar and wenT Ta Poiice STaTion Dongargaon where she lodged The reporT. Her grand-daughTer has been examined by The docTor and her underwear & frock were seized by The Poiice. 2 Komai (PW-3), faTher of The prosecu‘i’rix, has supported The version of his daughTer and his moTher. Dr. 5miTa {PW-12) has sTaTed in her evidence ThaT on 16—3-2005 she has examined The prosecuTrix aged abouT five years vide ExP—S. Her secondary sexuaE characters were noT weii develo‘ged. Z8 TeeTh were presenT over her jaws. There was Tenderness over labia 1L 1 . majara; iT was undeveloped. Tenderness was eresenT over iabia minora and ciiToris. Her vagina did noT admiT even Tip of iiTTle finger. The docTor has opined ThaT The prosecuTrEx was subjecTed To aTTempT of sexuai inTercourse. She prepared The shdes, GT vaginai smear of The prosecuTrix and handed over The same To The Poiice. She has also examined The sTained undergarmen‘i’ (Si frock of The prosecuTrix. 13.0r. Praveen Goswami (PW-8) has sTaTed in his evidence ThaT he has examined The accused on 16-3-2005 vide EXP—6 and he found ThaT The accused was capable of commiTTing sexual inTercoursen He has also @ examined fhe underwear af The accused vide EXP-7 having some sperm iike smins over- i‘r. 14‘Nmmee1' Pcd'ii (PW-11L Sub Enspecfor é Sfm‘ion In-chm‘ge of Poiiaa 5m?ion Dongargaon has sfcn‘ed in his evHence fha? he has conducfed invesfigafion and 3am fine seized ar‘ricies f0 F.5.L. Rojpur for chzmicai examinm‘ion v§de Ex.P—14. Presence ef sperm aver frock ‘34 underwear of the prosecu‘i‘rix and underwear/Chkaddi of fhe accused was confirmed vide Ex.P—16. x v 15.Age of 'I'he prosecufr'ix is nof dispufed: same is esfabiished by 'rhe evideace of: Dr. 5mm {PW-12) The? fhe prosecufrix is aged abouf five years‘ Frock éi underwear of The pmsecui‘rix and underwear of ‘i'he accuseafwere exariiihed by fhe F.S,L. and presence of sperm over fhe said, clo‘ihes was confirmed. <‘5 c 16. The prosecufr-ix (PW—2) has admi'r'red in her cross-examination Thai 'iinere i is enmi'ry between i'ier grand-marker 8i mofher of the accused. She has aiso admif'red Tim? her grand-mo-i'her has ‘ru‘i'ored wha’r "ro say. She has " also s‘rai'ed ‘ihaf a? The time of incident moiher of ‘rhe accused and oi'her chiidren 6anga 61 Rani were presen? in ‘i'he house of 'rhe accused. 5he has fur'i'her admi‘f‘i‘ed Thai she has no'i’ s‘rai’ed any‘ihing in ‘i'he Police STa‘i'ion and #he eni’ire incidem' has been narra‘red by her grand-mofher. Bui- she has denied The suggesiion Thai she is teiiing lie a1- ‘I'he instance of her grand-mofher. .Deiience has cross-examined i'he prosecui'rix & her grand-mo‘rher a? lengfh. Surja Bai £PW-1) has admi'd'ed previous enmiTy’ buf she has specificaiiy s’ra’red shat The accused has Taken 1-he prosecufrix inside fhe room, rhe prosecufrix came f0 her and fold ‘I'he inciden‘i’ whereupon she saw her undergarmenf éi bu‘r’rock which were s‘l'ained wi‘rh sperm. 18. Dr. Smi‘ra (PW-12) has s‘i'a‘red The? somebody has a'h‘emp‘i’ed 1’0 commi‘r sexuai infercourse wi‘rh fhe prosecu‘i'rix. She found tenderness over iabia ”ima‘iora of The prosecuTrix, redness é abrasion over iabia minora and ”rendemess over cii'ror-is. She has admiffad in her cross-examinnfion ‘rhat The lgr-osecu'rrix is a Teenager and she has denied The sugges‘rion The? The injury found over privme parf of The prosecuTr'iX may be seif-inflicTed. There was infernal injury over her iabia minora which was noT possibie by sweiiing. Injury over iubia minom which is inTernuI perT of vagina shows parTial peneTraTion and The prosecuTrix has specifically si'aTed ThaT afTer iaying her down, The accused slap-r over her and commiTTed rape on her. 19. Evidence of The prosecufrix is supgorTed by The evidence of her grand- moTher and also by The medical evidence. Para 3 of The evidence of Dr. SmiTaQQPW-lz) shows ThaT The accused has noT commiTTed comgleTe inTercourse wiTh The prosecuTrix. In order To consTiTuTe The offence of rape par-Teal peneTraTion is sufficienT and injury found on her privaTe parT is suggesTive of parl’ial peneTmTion which is sufficienT for commission of rape. There are some conTradicTions éi omissions in The evidence of The prosecuTrix and her grand-moTher. The prosecuTrix. is aged abouT 5 years and iT is noT possible for her To sTaTe everyThing in deTail: buT herijj evidence has been supported by The medical evidence which is sufficienT for drawing inference ThaT The accused has commiTTed sexual inTercourse wiTh her and has porTially peneTraTed and inserTed his male organ inTo her privaTe parT which is sufficienT To consTiTuTe The offence of rape. 20..The prosecuTr-ix hos specifically sTaTed ThaT she was called by The accused and when she wenT To The house of The accused, he Took her inside The room and commiTTed sexual inTercourse wiTh her. She is aged abouT five years. Presence of human sperm has been confirmed by The reporT of The F.S.L. ExP—lé which is also suggesTive of commission of sexual inTercourse E. § g okg . \ on The prosecu’rrix. 21. AfTer apprecioTing The evidence available on record]. learned Triol CourT has canvicTed The appellanT under SecTions 342 <3: 376 (6) of The I.P.C. and senTenced him in The aforesaid manner, ZZVThe evidence available on record is sufficienT for drawing inference Thai" The accused has confined The prosecuTrix aT The Time of commission of offence and commiffed rape on her who was aged abou? 5 years af *he Time of commission of offence. Rape on a woman undar fwelve year-s of age is punishable under Section 376 (2) (f) of ‘i'he I.P.C. bu‘r the Trial Couri‘ has convicted 'rhe appellan‘r under Secfion 376 (6) of The I.P.C. IT appear-s 'i'ha? instead of 6+h ciause Le. sinuse (f) of sub—section (2) of Section 37.6 of the I‘P.C. the Triai Cour‘r has meniioned Sec‘i'ion 376 (6) of ‘ihe I.P.C. which appears To be a band fin/e misfake. 23.Learned Triai Cour‘i' has senfenced 1he apyeiianir 'ro undergo RI. for Ten years é: pay a fine of Rs.2:000/- under Secfion 376 (6) of fhe IIP.C, and to upéergo imprisonmen? for six. monfhs under 5ec1'ion 342 of fhe I.P.C. The friai Cour? has sen'renced fhe accused wi‘i‘h minimum punishmen'r provided under 1'he Indian Penal Code. The a'npellan‘r has commi‘r‘red rape wi‘rh a child of five years age. His aci- is inhuman and he does no? deservefany sympafhy. 24.Consequen1’ly, fhe appeal is parfly allowed, Technically. While convicfing 'l'he appellan'r under proper Seci’ion of The Indian Penal Code, The appéllanT is convicTed under SecTion 376 (2) (f) of The I.P.C. insTead of SecTion 376 (6) of The I.P.C. and senTenced To undergo R.I. for Ten years 6i pay a fine of Rs.2;000/-, in defaulT of paymenT of fine To furTher undergo simple imprisonmenT for six monThs‘ However-E convicTion a senTence under SecTion 342 of The I.P.C. are mainTained. Sd/ l ..\i\ TIP. SHA , Judge l /