® ^33S| ••!^it':'>:; mjflE HOS'SfcE HIGHCOURT OFJUBICATURE AT BttASPUa C.-.A.Na.:-)-^ -^•isIIJf:CJI?3?l;-.:~ 'uijail) .0\ .... .^6.,. \'o' -A9 w^^y^^ 11'lEi P""^?;>r i^*" y^is^:"'"'T^o^ F^ l"t0.j-/"' l' i ^ \o ,<•*' o. Tularais s/e BIiookssc r'an Yadai'" agtd -50 yrs. .R/o Mawan P.S. Balodabaja^ dsstt- Saipar ! v/s1 Stats ofChattissarii i; 'V- .il.lll*atltiiaihdiasl;iIluA MO OF APPEAL SECTiON .374 0¥CODE OFCBl,?SO. CODE .i:;C-11 M' ";;':^';t'; a>a Kr• ffi:! B • 'Eii • KH8 B8E n /^ ' 7/ 's MGH COURT OF CHHATTISGARH AT BILASPUR O.Appeal No. 1006/2001 TuJaram Vs. State ofChtiattisgarh Sliri Abhay Tiwari, Coiiusel for the appellaat. Shri U. N. S. Deo, G.A. for the State. JUDGMEMT (2^.11.2005) The foUowing Judgxaent of ihe Court was deHvered by DUip Raosaheb DesluanUi, J. This appcal is directed agaiast fhe judgment dated 27.09.2001 delivered by Shri B.L.Tidke, 2nd Additional Sessions Judge, Baloda Bazar, District Raipur, ia Sessioiis trial No.99/2001 whereby the appeUant was convicted under Section 376 (1) for coimiiitting rape on Trilochani Bai, a inentaBy retarded girl, a^ed about 18 years on 26.11.2000 and was seuteuced to r^orous anprisoiunent for 7 years and a SDE of Rs.500/-, in defaiilt of which, to farther undergo R.I. for 6 nionths. 2. Briefly stated fhe prosecution stoiy is that Trilochani Bai P.W.5, daughter of Mehatm P.W.1 and Bhagmati P.W.2, is a mentaUy retarded girl. Dhaneshwari P.W.3 and Mamta P.W.6 are the playmates ofTrilochani. On 26. 11.2000 Trilochani Iiad gone to fhe plant area for plucking mushrooms. Mamta P.W.6 aad Dhaneshwari P.W.3 had also gone to pluck the mushroom ia thc plant. The appeBaxit findmg Trilochani alone committed rape on her. Mamta P.W.6 aud DhaDeshroari P.W.3 whfle retuTDing finom the plaat saw the appeUant cominittmg se?cual intercourse with 1<~--Z- -z. Trilochani and infonned Tikeshwan Bai P.W.4, fhe daughter-in-law of Bfaagmati about the incident. Tifceshwari Bai iaformed Bhagmati wbo in tum informed her husband Mebatru. Mehatru lodged F.I.R. m P.S. Baloda Bazar on the same day at 09.30 P.M. Trilochani was medicaUy exainined by Dr. Mrs. N. Bajpai P.W.8 who found that she was a inenfaUy retarded person due to an iujury to brain duruig birth. There was generalized taflai&ination and congestion aU. over fhe private parts. Hymen had Baore than fhree weelra old scar oflaceratk>n. Super&cial iU-defined laceration ofposterio-lateral part of iatToitous was seeu. White discbarge was present on vulva. Vagma adniitted one finger wifh diE&culty. Dr. N. Bajpai opiiied fhat Trilochani Bai might have undei^one act of iatercourse for fhe first timc ia her life before.inore than 3 weeks aad uijuries on hcr private psst could be due to fhe act of iatercourae cotimiitted wifhia 24 to 48 hours. The age of Trilochani Bai was opined to be between 16 Va to 18 years. Tbe appeUant was also sent for laedical exanunation. Dr. P.K.Tiwari P.W. 10 on examination found that accused-appellant was capable of performiag sexual uitercourse. There were ao iajuries over penis. Sniegma was present. After completion of invest^ation, the appeUaat was prosecuted under Section 376(1) I.P.C. 3. The appellant abjured the giult, pfcaded uuiocence aad led no evidence iri. defence. The prosccutk»nexamined as inany as 12 witnesses. The trial Couft relying on the piosecution evMencq convicted the accused-appellaat Uiider Section 376 (1) oftbe I.P.C^ and awarded sentence as aforesaid ia paragraph 1. r '5- 4. Shri Abhay Tiwari, leamed counscl for fhe appeUant has contcnded fhat the prosecution has failed to estabUsh the charge under Section 376 (1) I.P.C. agaiast fhe appellant since the age of prosecutrix-Trilochani is shown to be abovc 16 years and the evidence of Dhaaeshwari P.W.3, Mam.ta P.W.3 and Trilocham. (PFosecutrix) P.W.5 goes to show that fhe prosecutrix Trilochaiu. Bai was a consenting party in fhe sexual tntercourse. On the other hand, Shri U.N.S.Dco, leamed coiinsel for fhe State has argued iu support of the impugned judgnient while contending fhat the niedical evidence of Dr. Mrs. N. Bajpai P.W.8 as well as fhe deiaeanor of Trilochaxii Bai P.W.5 recorded by the trial Cqurt coupled with the evidence ofiarents Le. Mchatru P.W.l and Siat, Bhagmati P.W.2 estabUshed beyond doubt that Trilochani was, at fhe tinie of occurreace a nientatly retarded girl. Under clause 'FiflMy' of Section 375 I.P.C., consent of the prosecutrix in the sexual intercourse conunitted by the appeHant is whoUy urelevant since the prosecution has estabUshed beyond doubt that by reason of i.msoundness of mind she was unable to understand the nature and consequences offhe sexual act to which slie m^ht have given consent. 5. I have heard nval contentions and havc also perused the recordofsessiotistrialNo.99/2001. Mehatru P.W.l aad Sint. Bhagmati P.W.2 have testified fhat their daiighter Trilochani is a nientaUy retarded persou. Tikeshwan (P.W.4) also corFoborates fhe above fact. Dr. Mrs. N. Bajpai P.W.8 has also stated that upon examination she found tbat TnloGhani was a mentatly retarded girl possib^due to aa uguiy to the brain at the tiine of birth. This_ -c,- u evidence Ls wholly unrebutted iu cross-examiaation. tu cross- examination para 6 of Dhaiieshwari P.W.3, a speci&c defence was taken that Trilochani was a inentaUy retarded person. Besides, the leamed trial Judge lias very succiactly noted fhe deineanor of Tnlochani Bai at the time of evidence which shows beyond doubt that Trilochani was a nientaUy retarded girl on the date of occTurence. 6. Section 375 of fhe I.P.C. which defines rape is as foUows: 37S. Rape.—A ninn is said to coiiunit "rape" who, except in fhe case hereinafter excepted, has sexual iatereourse with a womaa under cireumstaaces faUmg under any ofthe sbt foUowing descriptions;— First.— Against her will. Seoondly.— Without her consent. Thirdly.— With her consent, when her coasent has been obtaiaed by putting her or any person in whoia she te uiterested ia fear of deafh or ofhurt. Fourthly.— With her cousent, when the man kaows that he is not her husband, and fhat her consent is given because she belicves fhat he is anofher rn.au to whom. she is or believes berself to be lawftiUy married. FiftMy.— With her consent, when, at the time of giving such consent, by reason of unsoundness of nund or intoxication or fhe adinimstration by him persoBaBy or fhrough. anofher of auy stupefyin.g or unwholesome substaace, she is unable to understand the nature aad consequences of fhat to whicb. sbe. gives consent. SixChly.— Wifh or wifhout her consent, when she is under sixteen years ofays, Explancttion.— Penetration is sufEcient to coiistitute the sexual iutercourse neGessaiy to tbe offence ofrape. Exception,— Sexual iatercourse by a inan s with his own wife, the wife not beir^; under fifteen ^ears of age, is not rape. ) -5'- -'S'r- o Dr. Mrs. N.Bajpai P.W.8 has testi&ed that fhe age of the prosecutrix on fhe date of examination was between 16 Va to 18 years. Howevcr, Clause 'fiflhhf of Section 375 clearly shows that consent of fhe prosecutrix in fhe sexual intercoiirse woiild be whoUy iminaterial where the prosecutrix is unable to understand fhc iiatiu-e aad coi^equences of fhe sexual act due to uiMouadness of mind. In view of the unsoundness of miod or inental retardedness ofTrilochaui Bai, her consent, ifany, in. the sexual act coiumitted by tbe appellant would be whoUy immaterial and the offence of rape under Section 376(1) I.P.C. would be established where the prosecution evidence eatablishes fhat the accused-appeUaat cominitted sexual intercourse with Trilochani Bai P.W.5, a meDtanyreta[dedgirl,ou 26.11.2000. 7. Ovcrwlielniuig evidence^ Ilas been adduced by fhe prosecution wtdch establishes beyond doubt the prosccution stoiy of sexual mtercourse.by theappellaat with Trilocliam P.W.5. Trilochani has in para 1 of her testimony stated that ftie accused made her to Ue dowu on the grass aad reinoviag her underwear slept on her which caused pain on her private parts. In cross- exaiDiaation, a suggestion was given by the defence tliat the under garaaents ofTrilocbaiu faad got staiaed with blood. The testimony ofDr. Siat. N. Bajpal clearty shows that on the vaguaa ofTnloGhani Bai P.W.5 there was a superficial ill-defined lacerated woimd and ! fhe vagna admitted one fmger wifh difiSculty. There is absolutelyj nofhing va. her testiinony wtu.ch would go to su%est fhat TrilochaDi Bai was nienstruating at fhe tune of occurrence. She tes cleariy| opin.®^that the injuries on the geDitalia ofTrilochani Bai could bf •Jt- :- sj^ei^f^^^1^^- : i] -6- caused due to act of scxual iatercoiirse. The above tcstunony furthcr finds fuUest conoboration fioin Dhaneshwari P.W.3 who has given a vivid description of penetration during fhe sexual intercourse coiamitted by fhe appeUajut with Trilochairi. The unrebutted testiinony of Mamta P.W.6 who also saw the sexual iutercourse comiaitted by fhe appellant on Trilocharu iuUy conoboiates the prosecutrix. 8. The above inentioned wholty uurebutted evidence led by prosecution clearly estabKshes beyond aU reasonable doubt that on 26.11.2000 the appeUant had conuiutted sexual iatercourse wifh a inentaUy retarded girl Trilochani Bai, ayed between. 16 Vz to 18 years. The sexual iatercourse fhus comfflitted by the appellant with a mentaUy retarded girl brings the offence withia the ainbit of exptaixaticm.'fifthly' to Section 375 I.P.C. and thus constitutes the offence ofrape under Section 376 (1) offhe I.P.C. 9. Having thus considered fhe evidence led by tfae pnosecution ia its entirety, I am offhe considered opiniou that the trial Judge has rightly convicted fhc appellant under Section 376 (1) of fhe I.P.C. So far as £he sentence awarded by the trial Judge is concemed, it is appropriate and does not caB for interference. The appeal is thus devoid ofsubstance, fails aad is hereby dismissed. Sd/- Dilip Raosaheb Deshmukh Judge \ i