CF0000057274 °.=.'? ^-a... - ; 1^^ ^ S[.^t"a^gm^ IB T8@ HXGH OBORT OF H&OHYA PB&DBSH ATsJAaa.?DR 21 years ^o..GraiB»ei<3harl s> ';/ 'Wersus k^l' 3\' -fr- BESPONEENT » state ,o£ Madhya DlettSWlpur ME ©PAPgE&t, iys/378' W 'EHE fieDE. OP fifiSHBI&X^PiSCE&ros.— A— -a «-— • —-«^-rtnfi; ^iThi* ;;!=<», ^ i;SB;'tS""a""«ssi',^ HI6H COURT OF CHHATTES6/kRH AT BILASPUR Sirgte Bench : Hon'ble ttr. Justic* Pritinkcr biwcdter Criminal Aptwai No. 242 uf 19ai APPELUtNT CEn jail) RESPON&ENT ©ameshson of DflluSotnwni VTSUS 5tate of Madhya ProKlesh ^iow Chhottisgairh) Mr. Dharmesh Shriva»t-ova,counsel foRtheap(»l|cmt^ | Mr. Pankdj Shrivastava, Panel Lawyer for the State^ CRIMINAL APPEAL UNDER SECTION 374 (2) OF TH6 CO&E OF CRIMINAL PROCE&URE JUDSMENT (18.03.2010) This appeal is directed against the impL^ned judgrnent dated 09.03.1991 pa^ed by 3rd Addittond asssionfs Jydge. Raipur in Sessions Trial No. 201/1989 cpnvicting the accused/q)pellant for the offences punishabte ynder Sectj|ons 450 and 376/511 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 5 ^nears with fine, ef Rs.100. in default of payment of fine to furt-her ynctergo rigorous imprisonment for one month y/S 450 IPC, to under^o hatf of the life imprisonmentu/S 376/511 IPC.boththe sentence were ordered to run concurrently 2. Brief facts of the cose nre that on 09.03.1989 jat about 2.25 pm F.I.R. (Ex.P-1) was lodged by the pros^utnx (PW-1), aged about 12 yecrs alt^ing in it that on 8.3.1989 when she vros ali alone in the house, was performing househgld vrork, accused/appellant aimethere.caught hold of her,threw tier on the fietd and after removing his ond her clothes compiitted forcible sexual intercourse with her. It is also alleged that when the accused was committingrapeonher,herfltatemal 2 W^^kssy uncle Ramanand (PW-2) reached thepe cind afterseeiBg kimi the accused/appelloint fled owcy. On the basus of Ihe a(>ovp, report as alleged by the prosecutrix, police has regnsteifted^t-he offence under Sections 450 and 376 of tte IndicBT PenrfGode and the charges were dso framed for the said affjeneeKanc^ the appellant was prosecuted by the trial Cour(frfory('heg9nic( offences. 3. So as tohold the accused/appelkirrt' gtailty, (r<}se<ajl-KM]^ has examined as many as 09 witneases.^Staterrwfr^1|te occused/appellont was also recorded under Seet!on Slg^of 1-1'je Code of Criminal Procedure in which he denied the (iTgpEtes leveted against him and plieaded hisJnnGcen<:ti^d»'|oils^ implicotion in the case. This apart; wjtnesse^ rtgm^^^ Ramprasad (DW-1) and l^erastegh (I>\V-2) hgve^^tso" beeft examined bythejslefenceinsupppr'tofitsccse.]J " ' 4. After hecrmgthe parti^ the trigl^urt'l^ and sentenced the accused/ap(»tlant as inen1'ipned_ obq^e. Hence this appeal. 5. C9unselforth?oppel|<!u^tstibrniti|,that|raise^t'jSflitc®e wheire the accused/appellant has been f^il^^ in(pliicatyd. Attention of this court has been drawn fo the ssl'at'erpeRt irf prosecutrix (PW-1) where jn poragrapVh 11, .slii^ hc^ ladi^N-tiat the fact that about 8-9 days prior to thie dote. of <mcytent^ there was some dispute betweenthe accused/appetlartt andth^ fother of the |yosecutrix.;He furt-l'iersubmits th^f cd,peRthe stcrt-ement of the prosecutrix, nuffbep of vi|l|igers had gathered near th®ploce of incident but^rwn^ ofJ'hemj Navp been exomined, though tte prosecutrix has morie stotemerft to this effect that number of persons h<^ gcEther^jtayt^suc^ :,+:;. f wyT i!.;i,;;-^.^-ii."::r-^;;'^ iNP;^iK^':sis'-^'jru:^ •-S statement has been made by her motemal uncle Rlnmanand (PW-2). He further submits that there is f»FSl. r^ptPl'arr record and, therefore, the benefft of the gtimiBshoulck be.j extended to the appellcuTt. .. l 6. On the othep hcnd. cour»el for •t-he re^wnderri^State supports the impugned jud9ment and aibm»tsttKrt?c*^thtftime1 of commission of offence the pro^cutrix was mjrwr 0M,,cged about 10-12 years and m the mamer in which mode to rovish her, no leniency cein be shown to+he i He submits thcrt- ingredients of Section450of their|tian?ffenal Code have been duly prov«l by the therefore, the conviction of the appelldBTt' inJbothc"t;|te»eiCtio|is inoiccordcmce withtaw. i 7. I have hecu%l legmed .ssunsel IOP th<| partjes |rt leriflth; and perused the mat-erial avajlabje on record taclBidjft3,g ttie judgment jmpugned. 8. Prosecutnx (PW-1), C^d pboult 12 ycp^Jo hi^ cojLyt stort-ement has stat-ed thort- on the dat'efff jnic»sNntJ<®RU<otNl'' and father both have gpne out aml she wad.all ,a|an9 in the hoyse. She stortTes thcrt when she wy chaaimfj iffffns^sf aecused/gppelkint came in the caurtycrdl byWQjSsilig ;feri<^; cciught hold of her, threw her on the fiiBld oitd fffter*iream^4ng, his and her ctothes, cpmmjtted rape on hw. Stest^rt'esyhaj: ct that- point to time her matemal uncle RamanarMi (PW-2) reached there ond after seeing him, the qccused/appellcuTt' fled away. She narrated the entjre jncidiint f9 her^motemql uncle RamarKaTd (PW-2) cnd/tlwrea^-er^after'-th^cnTNciliof her father andrnother on the ne^ d<^ BI-^31n:]ta, l<KtS^(^?n .ai?^'?' BlWK'tsisNifc^ -ii^e;.^^^..-;^.. the cross-exonnination prosecutrixstoodveryfirmandthere|s.| no moterial devioftion in the scme. She hasfupther clflrffied^gs to in what manner she was ravished by thedcciiisecl/appetlant.;' "^ She has stated thort' her mouth was 9agged by the? accusedAippellant and, therefore, srfie could net pai®e"^ery voice. She soites that after the commission of offenee,when».r the door was opened by her matemal imcle,tiumbep;pf <yiik®tfsyr had gathered thepe. Though, in paragraph 11 of her* cr<c><sit examination prosecutrix admits ft-hat theTe; wssKs^n^ d|sput^t ^ between her father and the OKXUsed/appelkint abptiit'S^da'jgsrf | ppior to thedcite of incident but she hascalfe^ricptMydcyiied^'j the foct thort- on account of the said disputeste ts menfdning' ! the nome of the appelknt in the pr^ent cas& l^dn'ic^;' | (PW-2) - Matemal Uncle of the prosecutrixhos aiso ^upporled ? the prosecution by saying ^hal- when for some wor^ he Ivri gone to the house pf the prgsecutrix,*he door was ctesedrcmd ^ he could hear some voice of the [yoseicutrixand, •I'hpreftire. he; | jumped the wall and errter^ ^hs house <md S(M^^ aGcused/a|:ipeltant. He.ajbmits that immediate^ <^|er pp<^ng^ him accused/appellcnt f|ed.awoyfro(nthespot<andthqia't-he prosecutrix has narroted the CTitire story to hitnl'Rioujgfei, thi? witness has st'dted thort- except liini no other person.was present there. Gayaram (PW-3) <s the fother of ; the prosecutrixand he also ajpportsthe prosecytion case. Bqnkelqf (PW-4) is seizure witne^ of underwear (^x.P-4). Kabiram (PW-5) is the teacher of the Schoot, who has iproduced Transfer Cert-ificffte Ex.P-6 of theschpol stigwing•t'he dateof birth of the prosecutrix is 05.07.1978;; Dr, lArchna 4?kry (PW-6), who hoid examinal the prosecutrix, has foynd^io: injury on the body of the prosecutrix and has stated that no opinjon 1# ^^-^..•v.a^ f j ^-.•"--l* '! 'ti^-»<-»il?\^ '^^^."^1* ^ ^ "<:i3»-/"''^ ^,,. '^/ ••^n-!»y,^,.-^-' eo-n be given about the commission of ro.pe. She states that her hymen was intact. Dr.T.K, Benerjee (PW-6) - Radiologist who has performed the ossification test of th.e prosscutrix has stated that she was aged about 10-12 yesrs, Vijay Kumor (PW-7) - Police Constable who had taken the occused for* his medical examination. 9. According to the considered opinion of this Court the inspires fut! confidence and nothing hos been record by the defence to discredit or discard the 10. Accordingty, the conyiction jxirt of the impugned judgment under both the Sections i.e. 450 ond 376/511 of the Indion Penal Code is maintained. Sentence impsed upon the appellont under Section 450 of the Indian Penel Code is dso maintained. However, as regords sentence imposed for the offence under Section 376/511 IPC is concerned, the ssntence imposed on the appeiiant is reduced to r'igorous impr'isonment for five years. Appellant is reported to be- on bai!, his bail bonds stand cancetted. He be dispatched to jo.il to serve out th®remaining porl' of the sentence imposed upon him. 11. Appea! is thus part'ly aiiowed. Sd/- Pritinker Diwaker Judge