XI—HC 78 WWW m W URAL .J ‘ SB: HON’BLE Shm unmnNuxA mum-ERA. J. 31m Abnay T1war1. Advocate for the a} s UUhiVlLlV 1 30-S-2M7 umrenara Mlsnra. LL the judgment of conviction and order of Hus appsal 1s an‘ectea against sentence dated 27-8—2§03 passed by 16a med Addi. Sessions Judge, Manendragarh 134i‘wUz Wherebv leamed Addnional ed ourltv Ior conmnssron ol oifence under Semen 3’/b(2)(i) 01 LP.U., sentenced rim to undergo RJ. for 10 years and to pay a fme of Rs.500/— and in defauit of payment of fme, to funher undergo additiondi KJ. Ior Hve monihs. District Korea in Sessions Trial NC. Sessions Judge after holding the accus ‘2. Ailegation against the appeliam he committed rape with prosecutrix a; Slui Sqtish Gupta Dy. Crow Aclvcoate rpeuant. is that on 20-12-2001 at about 1130 am. ged 1f) years Case of the prosecution in L'nmmal Ang‘eal 1V0. 9/9/10U3 . _PELLAN'_ Hafihar §Prasad a?! Hari Kewat. Sfo Budhsen Kawgt. Rg€d 25 wars, R/e Kane-hm “afai, Khongapani, RS. Manendragam iaistggt Roma (LU). V 'f / V9rsus KESYUIVJJENI' State 01 Chhauisgarh‘ through PS. Maneudragarh Tshsil Ivlansndragarh‘ Distuct Kare-a (CG). , s Wm W W (W) WWW T€ém §wifcmailé$r with her cousin (sister) Pooja had gone to brisf, is that the prosecutrix aiong attend caii of nature towards ground that time the appeiiant came there a cmmnunicated by Pooja, a ‘Ji/z ys Whemupon Munni (T’W-3) and iwr h1 the piaca of inmdent and saw the p1 Later the‘ pi'OSecutn‘X informed Mum father Chowiai (T’W-Z) wa$ aiso in (ExPx'8) was iodgec‘l by father Chow treatment to S.E.C.L. Hospnai: m Contra, Manenciragarh Where iady D her and gave her report of EX.Pf11. EX.P/"7, spot map of EXP/10 was appareis of the prosecutrix, underw were taken into possession woe EXJ EXP/'9 was registered. The accused of EXP/’13. Test identiiication para bv Executive Magistrate RK. Shri‘» her sister Anuradha @ Pooja correct After cornp‘ieting investigatt Judiciai Magistrate First Class, Man the Court of Sessions Judge, Amml for trial 1w the learned triai Court. was framed against the appeiiant win 3 abjured his guiit. re «R 5. of Bhavankar C‘.H.P. No.3 Khongapani. At nd raped the prosecutrix. The incident was its 01d giri, to her, mother Munni @1173) Is‘band Shimath (f’W-éi) immediateiy went to oseeutrix iving in an unconscious condition. ithat one person has forcibly raped her. Her formed and after his arrivai, Dehati Nahshi 1:11 (T‘W-‘Z). Frosecutrix (PW-1) was sent for ongapani and thereafter t0 Primary Health (Smt.) N. Yadav Rohan (PW-ii) examined Vagina slides were taken into possession vide aiso prepared by Haika Patwari. Wearing ear, petticoat stained with biood and semen f6. On the basis of the Dehati Naiishi, FE of was arrested on 23—12-2001 wide arrest memo de was conducted after arrest of the accused astava (PW—9) in which the prosecutrix and y identified the appellant. on. charge sheet was fried in the Court of endragarh. who in turn committed the case to Laput and the same was received on transter Zharge under Section 376(2)(f) of the LEC. % [ aw—w 37 2393m 200 mmiwm m %a=ifawan%¥r § 4‘ Prowcution in order to e$tabhsh the chargfz against the accusedv’appeiiant axamined i2 witnessss in aii and thsreafter statement of accused was recorded under Section 313 of the Cr.P.C. in V hich tho appoilant donieci the circmnsmnces appsaring against him in the pro§ecution case and pleadeciirmocence and false impiication. However, iearned triai Court after hearing the respective parties: Convicted and sentenced the accused‘ peliant as mentioned above. D. lh€f€ IS n0 dlsputé [hat 1116 p 0S6011t1‘1X Was a 10 yGal'S Old gll'i. It iS MSG not in dispute‘that on medioai exam nation it was found that the appeliant was capable ol committing mtercourse nd that the test identiiication parade was“ conducted bV Executive Magistrate .K. Sinivastava and at that time five other p€fSOnS W6T6 mlXEa Wlth th€ appdlla 6. Learned counsei for the ap ei‘lant submits that the report was iodged against an unknown person and the a )peuant has been prosecuted in this otfence only on the basis of test identificati n parade in which the prosecutrix and her sister identified him as-perpetrator o the offence, though the identification itseif 1s doubtful because details of the per ons mixed w1tn the appellant at the time ol identification parade has not been entioned in the identification memo. He further submits that the appei‘tant is '25 years o‘ld young boy and therefore the triai Court While imposing the sente 0e ought to have considered the age of the appeiiant and accordingly, some les ‘ punishment ought to have imposed upon min. a ,. § I 7. On the other hand, learned c unsei for the State submits that the hrutai mariner in which the offence has be n committed upon a 10 years; oidA girl has m f p n . s XI—HC—78 WW, m,W W 111m m 200 mm (W) \‘v WWW ammm r; WWW ' Wmikétm §rafdnm ,M’ C: been estabiished by the prosecutrix and considermg the manner in which the onence has been comittsd, no ‘mcy is wan'antec‘i and the triai Coun has US6G. rightly convicted and sentencsd {ha 1 ‘ t 8‘ ihava heard Earned counsei or the parties. .: 9. ‘To estahiish the charge a ainst the appeiiant, the prosecution has the victim of the offence, compiainant uhhoteiai (Evy. 2): the father of t1 e prosecutn'x, Munm' (FW. 3), aunt of the mosecutrix, Shivnath (PW. 4), uncl of the prosecutrix and Dr. (Smt.) N Yadavi Kohan (PW. 11'), who has examined he prosecutrix after the incident. 10. PW. 11 Dr. (Smtl) N Yada Rohan has stated in her deposition that she naa examined the prosecutrix on ' 2-2001 and has found that secondaw sex character of the prosecutn'x were ot fuiiy deveioped, however no signs of injuries were round on her person. S‘ e was compiaining pain in Waiking and urine and biood stains were present over r private parts and thighs. A cioth's pad stained with hiood oozed from her rivate part was given to SECL Hospital. Her internai examination was con ucted after administering anesthesia. On examination, her hymen was found om, vagina was full of hiood and compiete perineai tear from vagina was pre ent invoiving rectai mucosa and externai sphincter were aiso invoived. inju was of size of 5 cm in 1ength. Biood was oozing from the sides of injuries and tymen. Sweih'ng and reddishness both were present. Vagina tears on right side size of '2 cm and on ieft side in size of 5 cm were present. Corners of tears were woiien, tendemess was present. On removal of ciot acute hieeding was present om edges. Two slides were prepared from examined the prosecutrix (PfW. r‘\\ mwezvgmmmga e... C 1 , 2 4 e i ' XI—HC 78 (VA: Mm a 7j/Qom W m in 200 WWW 1aa1mm vagma and rectum; tha same were handed over to the concemed Consta‘bia after seahng them. injuries were repaired uneanscious conéition of the prosecutr'ni. She has given a positive opinion a out the rape and has stated that definite symptom of penetration is present. ,6‘ L1 The triai Court after preii ry examination of the proseemrix has reeorc‘ied her statement Without achn nisten'ng oath. The prosecutrix has stated that she identifies the accused tho she does not know his name. who is a rehident of Khongapanj. She had go e to attend the eaii of nature at about 10.00 to 11.06 am. At that time the aecu caught hoid of her, gagged her mouth and‘ after throwing her inseited his fmge in her urethra as a resuh of which blood staited oozing from her private part. Thereafter he inserted his penis and kept it inseited for sufficient time. Her yo ger sister aged ‘2 - 3 yeais was present at that time and thereafter the accused ent away from there. Her sister went to her home running and narrated the incid t to her maternai uneie Shivnath etc. He came to the piace of incident and to k her to home. Her father was also cahed and thereafter she went with her fa her to the Poiiee Station and from Poiiee Station to Manendragarh Hospital ere she was examined. In the cross— examination she has stated that she l d seen the accused on the date of incident and thereafter she saw him in the utt and in between she never saw him. Identification of the accused was conducted in the hospital and in that identification her sister Pooja had sa that the accused is the same person who had committed rape. She has r stated that she is also identifving the accused. She has also stated that at th time of incident the appellant was wearing n 4k r ' a u s "h ‘o " ‘ e W 3am, m, @ mm . ......(X RM9979/2999 mm (Wet) In 200 mmmm Arg_ mmiwm asafmaném baniyan and fuii pant. The incident putmc. FW—E KK. b‘hrivastava, E 12. occurred beside: the road. which is used bv Kecutive Magistrate: has conductsd test identitication parade on 23-12~2UL1. He has aiso stated that in the test s. adentmcation parade the accused wat correctly identified hy the prosecutrix and d identified the accused by pointing finger :d in the test identification report of EXP/‘2. ttion that 4-5 persons were mixed at the time details of persons are not mentioned in the (i’W—l) finds eorro‘boration from statements {mini—Aunt & PW-4 Shimath—uncie. ail of of incident Pooja came and informed that net when they went to the piace of incident 'ing in unconscious condition and thereafter d suhsequentiy to the hospital. The version d by the statement of PW-ll Dr. (Smtf) N. ries described in the foregoing paragraphs. L5. her sister Pooja and both of them h; towards him, which has been record: z He has 0i test runner stated in eross-examim . idemmcation. However. the The version of the prosecutrix repon. or BW-‘Z Chiloteiai —fathen PW-3 IV Whom have stated that on the date prosecutrix has been raped and therea they found that the prosecutrix was 13 she was taken to the Police Station ar of the prosecutrix is aiso corroborate Yadav Rattan, who has found the inju Thus, from the evidence of ah‘ that the prosecutrizg who is aged 10 yr sustained grievous injuries over her 1 the accused in the test identification p Executive Magistrate. on 23-12-2GOL. accused correctlv on test identificatim )ve Witnesses, it is estabiished beyond doubt :ai‘s. has been raped, as a resuit of which she )rivate part. The prosecutrix has identified arade conducted bv PW—9 RR Shrivastava. Her sister Pooja has also identified the k’W—B KJx’. Shrivastava. The prosem 1 parade as is evident from the statement of utrix has also identified the accused during ‘20 §¢§K \‘i avg/m www W m ' 1n 200 \ L‘ ._n ’ Ui§A~ ”in amt m (13W) & WWW ammm I g mat 111%?!m - ' www 1t€rm §a‘ aimm ; trial in the dock. Thus: on the basis )f above evidence: the identity of the accusec‘t ' as perpetrator of the offence is esta‘hiished heyond reasonabie cioubt. Therefore in the considered opinion of this Court, the trial Court has not committed any i iilegahtv in hoiding the appeilani guiity of committing rape with a 10 years 01d i prosecutrix and convicting and sentencing him under Section 3'76 (2)(f) of the a f I.P.C.. i4. So far as the sentence is concerned, as per Section 376(2)(f) of i.P.C.: itiinimum sentence to be imposed upon the offender is 10 years. Looking to the age of the prosecutrix and aiso considering the manner in which the offence has been committed and the injuries sustained by the prosecutrix because of sexuai intercourse: there is no adequate reason for making any concession in awarding ot sentence as the accused has been sentenced with minimum sentence prescribed under the law. 15. In the aforesaid circumstances, the appeal being devoid of substance is dismissed. T Sd/- DHMNDRA MJSHRA I i Judge