S"3fe Bench [Crimlna^ IN THE HIGH COURT OF JUDICATGRE AT JABALPUR. CRIMINAI. APPEAL NO^S'feoF 1997. ht-tl on- ?y ^hri.' c^ P(^ f7 ^--A<-O CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRBtINAL PROCEDURE. IVQCbtti ^^ 'hoolchand, son of Shri Laganram, aged about 25 years, resident of Jhinki Police Stataion Bagicha, District Raigarh, M.P. APPELLANT ACCUSED (In Jail) VER S U S. The State of Madhya Pradesh, through the Station House Officer, Police Station Bagicha, District raigarh, M.P. RESPONDENT >. / ^z HIGH COURT OF CHMffTISG&HR s &T^>ILaSPOR Crim.lnaiaopeal No<>?58_ of_J._997 Pboolcband, S/o shri Laganram ... Appellant VS. The State of'Madhya Pradesh ( Cbhattlsgarb) Respondent •-•'s-'. * ****** 3'udgmeat Post for _^_/05/2001. Sd/- R.S. Garg Judge •y^^'r-A^' r^ ^ o s / ^y\ !&' KtGH, COURT OF CHBCTTISGARH 8 &T BIXASPUR. Crjjainal tooeal Ho.958 of 1997. Phoolchand, S/0 Shri Iiaganram ... ^ppellant. The State of Madbya Pradesh ( Chhafet.Lsgarb ). Respondent **-***** / J y d gm e n t By Hon.Shri R.S oGarg.J.: The appellant being aggrieved by tbe "^udgment dated 7.2a97. passed in Sessions trial No. 217/1996, by the leamed AdditionalSessions JTidge. iTaspur Nagar. convicting the appellaat under Sections 450 and 376 I.P.C. and sentenclng hua to undergo R.I. for 7 years under each count and to pay fine of te»l»000/~under eaeh count; in default oS payment of fine to undergo S.I» for 3 months for each default, has filed this appeal. ,i). s. / Tbe proseeution case in brief is that .on 12.5.96 at about 2«00a.m. when Kaleshwari- pros^utrix was sleeping in ber house wltfa Nebru, Harjlram and one Saapatibai, tbe accused who was diEUnk; opened the door, eatered in the house and slept with the proseeutrix. As the prosecutrix woke-up, he went and slept withSampalabai., But after about balf an bo'ur he again caiae to the ^ S T 2 - . proseeutrix and ecnunitted rape upon ber. yhen the progeeutrix raised alanas ber.brother Nebru woke-tqi and bolted the door from out-side. The brother Brought fche villagers to the spot; the ' *<" ~ father of the acciised took-away the accusedwltb him.. The proseeutrix narrated the entire incident to the villagers. The matter was reported to tbe police after about 13 b.ours. The girl was sen-t for ber aedical examination. Sbe was examined by the doctor Smt. Bhakala (P.W.3) who sulaaitted her report at ESc.P/5. The clotbes of the proseeutrix were seized ,slides of tbe vaginal swa^rwere also prepared and the same were sent to tbe F.S.L. Certain PanchaHamas were prepared aad tbe statanents o£ tbe witnesses were recorded. The F.S.L. vide tbelr report dated 26.6.96, reported that under-wear of the accused and slides were -^ot' stalned with blood, wbile petti-coat. and Saree of the prosecutrix were stained witb blood and sperms were also foond on the said artiele. On corapletion of the investtgation, tbe police filed the cballan. As -fche accused abjured the guilt, be was put to t.Aal. Aft.er recording the evidence and hearing \ /'fc.be parties. tbe leamed trial Court convicted Bfael sea'itenced tfcie accused as referred t o above. 3). I»earned counsel for the appellant sutanits that tbe facts would clearly sfaow tbat tbe preseat was a cas« o£ consen-t; but. as the bretber of the presecutrlx woke-up, a false report was lodged. I-t. i.s also submitted that._£caa_b.he report of C)1 Y / 3 - . ' the doctor, it does not appear tbatsexual assault was made o& tbe prosecutrix. Xt is further sub- mltted tbat the appellan-b is entltled toacquittal. "c 4). Learneac.ounsel for tbe State bas contended that fran tttae- -Esc.P/S, ttiemedical report^ and the stateaents of tbe witnesses. so aiso from tbe Serologica-l report, it would clearly appear tbat a sexual assault was made on -the prosecutrix. He sulaaits tbat the appellant. was rigb-bly convieted by the learned Coart below. 5)» EBc.P/7- the First Information Report was lodged by P.W.5 Kalestawari. In the said report, __®hebad clearly stated that the accuseel coniaitted rape upon her. In th,e F.I.Ro it is clearly ~ mentioned that the accused was caugbt oa the spot and her clothes were stained with blood. 6). Kalesbwari was exarained as P.W.5. In ber examination l.n ctiief, she clearly stated that. tbe accused made a sexual assault on ber and canBiitted rape upon ber «, She had also stated ,/tbat on laer alanas, ber brotber boited tbe door fr-can the outside and tbeceafter she iedged tbe report. It was suggested to faer in tbe cross- exainiraatioa that ttie report was lodged after gtbout; 4/5 days. S&e denied the suggestion tbat the aSeused was sleeping outside tbeir faouse. But her brother and she berself invitei tbe accused to sleep inside» In tbe cross-examiiiatlon, sbe adnitted tbe factthat after hearinq^ her alanns, &* - 4, - hec brotber ou-t of fear le£t tbe room and bolted the rooBt £roa out-side. Sbe deaied thesuggestion of the defence tbat under tbe tbreat.s of sane villagers, sbe lodgedf-the false reporta 7). P.W.2 piltise Kujur bas proved tbe age of the prosecutrix. Accord.Lng to bim, the date of birbb of t b.e prosecutrlx was 15»8.82« In the cross-exaiaination, be.bowever, 'sliH.kit'ia actal.tted that the pareats raigfat have given the date of birtb on certain irapression» P.W.6 sampatibai.who was also an in-mate o£ the house. was declared laostile by the prosecutio&» P.W.7 Nebru is the brother ofjfcbeprosecutrix. AccQrding to bJn, after heartng sbrielcs of b»y sister, tie woke-up and bolted the door from out-side, thereafter be invited fehe villagers and infaraied theia about tbe iacident. &t aboat 6.00 a.m. tbe father of the aecused came to bis faouse aad took-away tbe aGcused witb bim« In bis cross-examination. the defence could not bring out any substance whicb chould support the aeeused» P.W.^sbivnat.h is tbe persoa wbo carae ./ -. . . .. . . -. . . ..' '. . Vo tbe spot inanediately after bearing the alaEas raised by: Behru(P.W.7)o Aecording to htm, tbe ^" • . : . . .. . . ^ • • accused was bolted inside the .house and in the moming, the fatber of tbe accixsed •to<2ik the .aeGusea-xitb btn. P.W.ll 'T.P.Slag^^faaid regisfcered tlie F.T.Ro aad referred the prosecutrix £or her medieal' ®ta»ination« 8) P.W. 12 Dr-. M.D.Joslai bad-p^Sormed the Cb !."• ' i.: ,-. s^ ^ -5 - ' ossificatioa testo He stated before tlae Ceurt tliat the age of the proseeutrJLx "could be betweea 14/15 years. He.howewer, stated befca^e the Court tbafe there cbuld to^*a aargin of error of about 3 years OB eitberside. P.W.3 Br. Siat. Bhakala had examined tbe proseeutrix oa 14.5.96. she fourad that the grivate parts of tlsie proseeutrlx were swollen; tbe vagina was admitting two fingers witb diffieulty; the byraen was ruptured and on toucb wd*te bieeding. She also reported that there were serat.ch marks on both sides ef lebia majora. She also fQund a braise of red/brown colour . Her further report was tbat there was swelling on -'t.b.e peirineum » Aeeording to ber, petti-coat and Saree of P.W.5 Kalestawarl were stained witb blood, She was certain that inter-course was commit-ted with tbe girl. 9)« Frcm the abbve evidence, it does not appear tbat. no rape was conuaitted vpoa tbe prosecutrix. The witnesses bave clearly stated tbat the aecused entered in tbe house and made a ^escual assault'upon tbe prosecutrix. Behru (P,W»7) /is a young boy of about 15 years? it was nofe ' expected 6f biia that at -the tlme o£ the Incideat he was to take scaae steps to saye his slster fcom tbe clutcbes of the aecused. The aceused is sbojre to be a grewn-up aan of about 25 years. He was ' drualc and had already aade an assault on ;, the pi-ivacy o£ the proseeutrix* , In a situation Xike-tbiSt bow a young boy _would rea^t would ^ ~^ — 6 - depend upon the imderstanding of sueb a boy« I£ P»W«7Nehru came out of tbe bouse and bolted the door, then it canaot be held tbat present was a case o£ cons'eat. In facfe the villagers were invited on tbe spot, ttie accused was bolted Inslde and immediately thereafter the report was lodgedo 10). I am unable to bold that the prosedutrlx was a consenting parby. EvenassTBntng that, the prosecutrix was abQut 16 years or above 16 years of age, then too the defence would not be benefitted, becauss tfae present is not a case of consento The learned Courl^below have given cogent reasoas for liolding that the accused had coramitted the crj.me. Even^ If the jail sentence awarded undec Section i 450 l.P.c. is reauced t<& scae lcwer teria, tbe same 1 agaln would not belp the accused because under | Seetion376 I.P.C. tbe minlmum awardable sentence 6 would be 7-y.earso 11). I find no reason -bo Interfere in the matter either on tbe merits or on the question of s^ntenceo The appeal is dlsmissed, >. / Sd/- R.S. Garg Judge £^ /Subbu/.