HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. CJ. & HonLble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 590 of 2004 Surendra Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^G^)/<-6- rf Sd/- Chief Justice Post for Judgment :^/0<g/2009 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha. J. APPELLANT RESPONDENT Criminal Appeal No. 590 of 2004 Surendra S/o Adhari Sahu, aged about 18 years, R/o Gopalpur Police Station, District Rajnandgaon (C.G.) Versus State of Chhattisgarh through Station House Officer, Police station Chhuria, District- Rajnandgaon (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Hanuman Prasad Agrawal, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (S .0^.2009) Following judgment of the Court was delivered by Sumj Kumar Sinha. J. (1) Appellant Surendra stands convicted u/s 376 IPC and sentenced to undergo imprisonment for life by the Additionat Sessions Judge, Rajnandgaon (C.G.) in Sessions Trial No. 151/2003 on 13.4.2004. (2) The facts, briefly stated, are as under:- The prosecutrix (PW-1) was a minor. She was aged about 8 years. The appellant was a co-villager. On 12.9.2003 at about 10.00 a.m., the prosecutrix was waiting for her friends, outside her house, for going to school. The allegations are that the appellant came there, took her inside the house, laid down her on a cot and thereafter committed forcible intercourse against her. After completion of intercourse, when he was tying his under garment, Criminal Appeal No. 590 of 2004 (S1 incidentally, the aunt of the prosecutrix namely Devali Bai (PW-2) came inside the room. She saw that the prosecutrix was weeping near the cot. The prosecutrix narrated the story to her aunt. She also complained pain in her private part. The aunt of the prosecutrix saw wet spots on the skirt of the prosecutrix. The story was disclosed to many villagers including the parents of the prosecutrix and a First Information Report (Ex.-P/1) was lodged by Devali Bai (PW-2) in the concerned police station on the same day. Skirt and chaddi of the prosecutrix were seized under Ex.- P/2. The Investigating Officer reached to the scene of occurrence, prepared map Ex.-P/4. The under garments of the appellant were seized under Ex.-P/5 and P/6. Another map was prepared by Halka Patwari under Ex.-P/3. The prosecutrix was sent for her medical examination to District Hospital, Rajnandgaon and was examined by Dr.(Smt-) Sushma Kumre (PW-9), who prepared her report Ex.- P/7. She found hymenal tears present at 6', 7' & 2' O clock position. There was swelling and redness on perineal region. Tenderness was also present on perineal region. She opined that forceful intercourse was done with the prosecurtrix. The appellant was also sent for medical examination. According to his MLC report Ex.-P/7a, he was capable to perform intercourse. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Rajnandgaon, who in turn committed the matter to the Sessions Court, Rajnandgaon, from where, it was received on transfer by the Additional Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (3) The conviction of the appellant is based upon the testimonies of the prosecutrix (PW-1), her aunt Devali Bai (PW-2) corroborated by the medical evidence of Dr.(Smt.) Sushma Kumre (PW-9). "^. g) Criminal Appeal No. 590 of 2004 (4) Mr. Hanuman Prasad Agrawal, learned counsel appearing on behalf of the appellant, argued that the version of the prosecutrix as also other witness appear to be unreliable. He also argued that the sentence of life imprisonment appears to be disproportionate. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) Prosecutrix, PW-1, deposed that on the fateful day, she was waiting for her friends to go to school. The appellant came to her house and took her inside the room. He laid down her on a cot and after removing her underwear, he penetrated his private part into her vagina. Thereafter her mother came there and the appellant ran away from the house. She narrated the story to her mother. In the evening her mother narrated the story to her father and then she was taken to the police station, where the F.1.R. (Ex.-P/1) was lodged. In the cross examination, she clarified that when she was crying, her Badi-Ma (Aunt) had entered the room. She further clarified that in the examination-in-chief, she had said about her mother (Ma), which in fact means Badi-Ma (Aunt). She denied the suggestion that the appellant did not perform sexual intercourse against her and she is deposing on the tutoring of her mother and aunt. (8) The above evidence of the prosecutrix is fully corroborated the evidence of Devali Bai (PW-2) who saw the appellant tying his under .^-^ Criminal Appeal No. 590 of 2004 garment and when she asked as to what he is doing, he ran away from the room. She further deposed that the prosecutrix (PW-1) narrated the entire story to her that she was subjected to sexual intercourse by the appellant. The evidence of these 2 witnesses are corroborated by the evidence of Dr.(Smt.) Sushma Kumre (PW-9) who noticed the above injuries in the vagina of the prosecutrix and opined that she was subjected to forcible sexual intercourse. (9) These witnesses have been put to lengthy cross examination by the defence, but the defence has not be able to elicit any such circumstance, on which, it may be said that either their testimonies are doubtful or they are falsely implicating the appellant in crime in question. Why a girl of tender age would falsely implicate a person of her own village. Nothing has been brought on record which would shows that there was previous enmity between the two families or there was some reason for the family members of the prosecutrix to falsely implicate the appellant in such a heinous crime using their 8 years daughter as an instrument. On the medical evidence of Dr.(Smt.) Sushma Kumre (PW-9), it has been established that the prosecutrix was subjected to forcible intercourse. Why these witnesses would leave actual culprit and would bring the appellant into picture. We do not find any reason to disbelieve the testimonies of these witnesses and hold that the Sessions Court was fully justified to hold that the prosecutrix, who was aged about 8 years, was subjected to forcible intercourse by the appellant on the fateful day. (10) Now question arises as to what should be appropriate punishment for the appellant who was aged about 18 years on the date of incident. Keeping in mind that the punishment must not be disproportionately great ^^ m Criminal Appeal No. 590 of 2004 is a corollary of "Doctrine ofjust deserf which is governed by the same principle which says that there cannot be a punishment without guilt and the basic element behind the principle is the proportion between crime and punishment, we deem it appropriate to award the sentence of 10 years rigorous imprisonment to the appellant which would serve the ends ofjustice being the quantum "just deserf'. (11) Accordingly, the appeal is partly allowed. The conviction of the appellant u/s 376 IPC is maintained. However, the sentence of imprisonment for life is reduced to rigorous imprisonment for 10 years. It is stated that the appellant is in jail since 14.9.2003. He shall be entitled to set-offthe period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti