^) .^ •3j4y''' ^•^"•'y tfssm pa Jail) COURT OF CHHATTIS^iARH, BILASPUR ^iminal Aspe^So.Tl.4oi200S Chopiram @ Rainesh Yadav s/o Bhagela Yadav, aged about 20 years, R/o vfflage Anaiban.d, P.S. Takbatpur, District Bilaspur (CG) <t ,;^ The State of Chttattisgarh through District Magistrate, Biiaspur (CG) CRJMINAI^APFEALJJ/S374 (21 OF THE CODB OF CRIMINAL PROCUDESS Shri Malay Shnvastava, counsel for the appeUaat. Sm.t. Madhu Nisha Siagh, Panel Lawyer tbr the State. Hoa'Me Shri T.P. Sharma & Hoa'ble Shri R.L.Jfaaawar,JJ Per T.P.Saarma, J. (10.5.2011) Challenge ui ihis appeal is to fhe judgnient of conviction and order of senlence dated 21.06.2005, passed by fhe Special Judge, Scheduled Castes asd Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur in Spec.ial Crmiiaal Case No.47/2003, whereby and where uuder the leai-ned Special Jiidge, after holding the appeUaiit gllilty for comiTiission of rape vvitti a girl below 12 vears on flie ground that she is a meiaber of Scheduled Caste aiid aft.er fhreatening her, -convicted the appeBant under Section 376 of the IPC, Section 3 (2) (v) of the Scheduled Castes aad Scheduled Tribes (Prevention of Atrocities) Act and Section 506 B.ofthe IPC and sentenced tbr Ufe imprisoament and &ie of Rs.2,000/-, iii default ofpayiaeat offine to fiirther undergo S.I. for "^/ 6 m.onths; Itfe impnsonnrent and fine of Rs.2,000/-, in default of paynient offine to furfher undergo S.I. for 6 inonths; and R.I. for 1 year respecuvely. 2. The conviction is impugned on the ground fhatwithout tliere bem.g any iota of evidence sulficient for conviction of fhe appeUant, flie learaed Special Judge_ has convicted and sentenced tbe appeUant as aforeinentioned aad thereby coiainitted iUegaUty. 3. As per case of prosecution, ou 9.12.2002 in betroeen 11-12 am, present appellaiit forcefuUy took 11 years aged girl- prosecutrix PW-1 (naiue aot xuentioned) in fhe field aad after givins threat, cominitted forceful intercoui-se wifh her. She narrated the incident. to her relatives and lodged FIR on same day at about 1.30 piu vide Ex. P/ 1. Her.clofhes were sized froia fhe prosecutrix vide Ex. P/2. She was sent for medical exainiaation and was examiued by Dr. Smt. Manju Tirki (PW-8) vide Ex. P/13 and found foUowiaj syinptoius : i. Breast under develop, pubic aad auxiliary hairs not grown (uot develop) ii. Hyinen is teared off irregularly ui. Sweltuig aad congestion aU around the hyiaen. iv. Vagitia admits one finger Accused was taken into custody. He inade disclosure statenient of clofhes vide Ex. P/6; same was recovered at the iiistance of the appeliaat vide Ex. P/7. SUde offhe prosecutrix was seized vide Ex. P/8. Docuiueiits relatmg to age of the prosecutrix were seized vide Ex. P/9. Spot xnap was prepared vide Ex. P/ 10. Accused was sent fcr inedical examination, where Le. was examined By Dr. Katlam Smgh Dhurve (PVV-9) vide Ex. P/ 14 aad tbund fhat he was capatole to coiam.it illtercourse. Stateinents of the witaesses were recorded under Section 161 of fhe Code of Cnmuial procedxire, 1973 (in ffz t=i short fhe Code). Seized articles were sent for cheniical exaaunation. 4. After coiupletion of inve'.stigation, charge sheet was ffled before the Judicial Magistrate Pirst Class (SC/ST Act), Bilaspur, wbo in tum, coinsiitted tha; case to fhe Special Judge Scheduled Caste aad Scheduled Tiibes (Prcvention ofAfcrocities) Act, Bilaspur, who conducted the trial. 5. In order to prove the guilt of the accused/appellant, prosecution examined as aiauy as 13 witaesses. Accused was exaraiaed under Section 313 ofthe Code, in which, he denied the circuiastances appearing agaiust him, innocence aiid false iiupUcation in criiae iu question was claimed. He exaitiined defence witness Rajesh (DW-1) and taken plea ofalibi. 6. After affording opportuiiity of heariiig to ttie parties, tlie learrted Special Judge convicted aad sentenced the appellant as aforesaid inentioned. 7. We have heai-d Shri Malay Shrivastava, leamed counsel for tlie appellant and Siut. Madhu Nisha Siagh, leamed Paael Lawyer tbr tbe State, pei-used fhe judgnient inipugned aad record of fhe trial Court. 8. Aiter soine arguinents, leacaed coansel for fhe appeUant subinitted that in fhe light of evidence of prosecutrix PW-1 (name not mentioned), PW-2 Sanat Kumar, Dr. Smt. Maaju Tirki (FW-8) aad niedical exaoaination report Ex. P/ 13, he is not disputiag fhe fact fh.at age of the victim. was below 12 years aad presenr appeUaat has cominitted iatercourse/rape with her.' He sutoiuitted fhat prosecution bas not proved the fact that fhe appellant has coiuinitted rape .with fhe victun on the ground fhat she was a ineiaber of Scheduled Caste. Prosecution has also not proved fhe fact that she was threatened by the appeUaat at the time of couiiuission of such offence, interalia, he subiaitted fhat virtuaUy evidence of fhe prosecution witnesses revealed that the appeUant has com.mitted rape on fhe ground that the victim was a girl aad she was found ia lonely place, therefore, conviction and sentence of the appeUant under Section 3 (2) (v) of the Scheduled Castes ^.j'. aad Scheduled Tribes (Prevention of Atrocities) Act and Section 506-B of ttie IPC are nof sustainable luider the law. He furfher subniitted ttiat at tlie time of coininission of oflence, age of the appeUaat. was only 20 years aad no crmiuial antecedent has been proved by the prosecution, therefore, the appeUaat has not coiaiuitted any ofFeuce. As per Section 376 (2) (t) IPC ia case of rape with a girl below fhe age of 12 years, sentence prescribed is not less fh.an 10 years but inay be for life, therefore, flie sentence of life imprisoninent is sine quo non for fhe atbresaid offence. He argued that considenag ftie aforesaid circum.staD.ces, particularty fbe young age of the appeUant, sentence also requires reconsideratioii. 9. On fhe other hand, leamed counsel for fhe State veheinenUy opposed fhese ar^uinents and subniitted fhat prcsent appellant has coininitted the afol^said offence on the ground that the victun was a lueinber of Scheduled Caste aad has coinmitted rape with her; she was below 12 years of age; aud after appreciating the evidence avaiiable on. record, fhe leamed Special Judge has rightly convicted aad sentenced fhe appeUaat as aforesaid inentioned. 10. In onder to appreciate fh.e argunients advaaced on behaif of fhe parties, we have examuied fhe evidence adduced on behalf of tlie prosecutiou. 11. Evidence of fhe PW-1 prosecutrix (naaie not uientioned), Saaat Kuinar (PW-2) - fafher of the prosecutrix, evidence of Dr. Ssnt. Maaju Tirki (PW-8) and inedical examiuation report Ex. P/ 13 is sufficient to estabUsh/prove the fact that present appellant has i 7 coiainitted rape wifh tfae'prosecutrix, who was aged about 11 years at the tiiae of com.m.ission of such offence, but the evidence adduced on behaif of the prosecution does not disclose the fact ttiat the appeUaut has coiniaitted the aforesaid offence on fhe ;round of caste of tlie prosecutrix, alfhough she was a inem.ber of Scheduled Caste. Preseiit appellaat has coTnmitted forcefal iiitercourse with fhe prosecutrix, but has not coiiunitted such offence under tfareat. Consequenfly, conviction aad sentence of fhe appeUant uuder SectionS (2) (v) of ftie Scheduled Caste aad Scheduled Tribes (Prevention of Atrocities) Act and Section 506-B of the 1PC are not sustainable under fhe law. su-nira- 12. As regards fhe question of sentence is concenied, considerirLg fhe circuiD.staaces, in which, the offence has been com.iu.itted and age of fh.e appeUant, sentence requires reconsideration. 13. Consequenfly, fhe appeal is partly allowed. Conviction asd sentence of fhe appeUant under Section 3 (2) (v) of fhe Scheduled Castes aud Scheduled Tribes (Prevention of Atrocities) Act aad Section 506-B of fhe IPC are bereby set aside. Conviction of fhe appeBant under Section 376 (2) (1) of the IPC is hereby m.aintained. Considering fhe age of fhe appeUant and other circuinstances, iastead ofsentence for life impnsonment and fine ofRs.2,000/-, he is sentenced to niinimuiu sentence i.e. R.l. for 10 vears aad fiae of Rs.10,000/-, m. default ofpayinent of fine to further undei^q_R^I. for2years, ' c,ji i Sd/- R.L.Jhaswar T.P. Shayma Judge