•'JSlfh^^ /', CF0000058302 IN THE HIGH COURT OF MABHYA PRADESH, JABALP0R Crimlnal Appeal No, )'Sifi O of 1995 ^v •^- APPELI.ANT l," cl! (11L1 „.>.-..-.-'— .SSu< ^-^-c'^^'^^""" ....-f\^'°:-^s BALIA ALIAS MOHAN..,., '' : ^s-^^ Son of Enilaru, aged aboyt 20 years," resident of Village Labhandi Poliee Station Civj.1 Lines,'" Tahsil .and Bistrj.et Ra.i.pur^M.P. R.tor.'- plb—"~RESPONDENT VERSUS Tbe State o£ Madhya Pradesh<<.-- APPEAL UNDSt SEGTION 374<2) OF THE CODE OF CRIMINAL PROCEBtJRE (Against the judgemeat aR)a findings 6£ Shri M.R. JolheT^IIIrd' Addltional Sessions Judge'7"fiaip»t" passed in Sesslons Trial So,^9S of 1993 dated 4th day of September 1995)*.—--" *-.«K(lLlrtel^frl;tri- -»>»- HIGH COURT OF CHHATTXS6ARH ATBILASPUR (Mon. Mr. Justlce Pritinker Diwaker) Criminat Appeal No. 1360of 1995 APPELLANT RESPONDENT VERSUS Balla @ Mohan State of Madhya Pradesh. Shri M. D. Dhote, counsel for appellant. Smt. Smita Ghai, P.L. for the State. CRIMINAL APPEAL UNDER SECTION 374 f2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (14.02.2011) The present appeal arises out of the judgment and order dated 04.09.1995 passed by Third Additional Sesslons Judge, Raipur in Sessions Trial No. 198/93 convlcting the accused/appetlant for the offence under Sections 376/511 of IPC and sentencing him to undergo rigorous imprtsonment for two years. 2. Brief facts of the case are that on 14.02.1993 at about 7.05 p.m., unnumbered FIR Ex.P-l was loctged by the prosecutrix (PW-1) aged about 11 years. On the same day at about 10.05 p.m. FIR Ex.P-2 was atso registered victe Crime N0^133/1993 against the accused/appetlant under Secttons 376 (2) (f) 4"d 511 of IPC. It has been atleged by the proseputrlx that when she was taking care of her vegetabte "-*,. r garden, the accused/appeliant came there, inqulred about her pargnts, asked for plters and when she went to take the same he entered her hrbuse, bolted the doorfrom irlside, threw her pn fhe fleld and after removing her and his underwear tried to commlt rape but could-not succeed tn tt and then the appeflant leftthe place. Thereaftsr she went to the hpuse affd narrafed the entire incident to her mother and then the U-(. 1 ^ .".^^•s^^^. '^:.iv. .S^^^S^Si;: < =;^^s^^^^s^i^^^'i^^NS^li^ II lli ^ ft< \ y" ff!t -:• \ -2.- report was lodged. After investlgation challan was fited pn 15.04.1993 and charges were framed on 25.07,1994 under Sections 376/511 oflPCagainsttheaccused/appatlant. 3. So as to hold the'accused/appeliant gutlty, prosecution has examined 10 wltnesses insupport of Its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminat Procedure tn which he denled the charges levelled against hlm and pleaded his innocence and false Implication in the case. 4. After hearing the parties the trial Court has com/icted and sentenced theaccused/appellant for the offence under Sections 376/511 of IPC. 5. Leamed counset for the appellant submits that as per the Court statement of the prosecutrix, partial penetration was done by the accused/appellant and If this statement is accepted in its entirety, the acxused/appellant should have been convicted under Section 376 of IPC. Me submlts that there existed previous enmity between the falhers of the appeliant and the prosecutrix and that is why the appellant has been falsely implicated. Me submlts that as per the statement of the prosecutrix no resistance whatsoaver was offered by her and that also shows that the appellant has been falsely Iraplicated. Lastly it has been arguedl that the appellaflt^as already remalned in jail for about 23 days, the sentence imposed on tum may be reduced to the perlod already undergone by him. 6. On the other hand supporting the impugned juclgment It has been argued by Smt. Ghai that prima faeie evidence of the prosecutrix is retiable and no penetration was dene fay the appellant,^thereft>re he has rightty been coTWtcted under section 376/5tl of IPC. She submites that a very prompt —3 ~ report was lodged by the prosecutrix and there is no reason for her to falsety implicate the appellant. She submits that even as per the medical report of the prosecutrix (Ex.P-4) no injury was found on her private partand her hymen was also intact. Lastly it has been arguect-that evenas per the medical report her age at the relevant time has been opined to be about 11 years and on tliis count also the convlcBon of the accused/appellant appears to be just and proper. 7. Heard counsel for the parties and pemsed the matenal available on record tncluding ttiejudgment Impugned. 8. The prosecutrlx (PW-l), a mtnor girl aged about 11 years in her Court Statement has stated that on the date of ineident the accused/appellant came to her courtyard (sort of kitchen guarden), enqulred about her parents, asked for pliers andthen entered her hut, bolted the door from tnside. threw her on the ground and after removlng his and her under garments tried to insert his private part Into her private part but he could not fully penetrate the same. She has stated that no ejaculation took ptace anct then the appettant left her. Thereafter she went to the house weeping and narrated the entlre story to her mother and then she todged the report (Ex.P-l) along with her father and maternal uncle. In cross- examination she has stated that once cattte of the appeltant had entef-ed in her courtyard and there was some quarrel between her father and appellant's father and on account of «t- the saict quarrel they were not in taking terms. However she hascategorlcally denied the fact that due to the said quarrel she has fatsely impllcated the appellant. She has ^atect that when she narrated the entlre incldent to her mother, her 'mother asked the appeltant as to why he had done the said act but the appellant denied the commission of any sueh act. Smt. Kachri Bai (PW-2) - mother of the prosecutrtx while •^ -M- supporting the statement of the prosecutrix has stated that on the date of incident the prosecutrix came to her weeptng and narrated as to in what manner the appellant had committed the offence. in cross-examlnation this witness has stood very firm and has not deposed anything whldi may help the appellant. Awlna Begam (PW-3) Is a lady Ctonstable who had taken the prosecutrix for medical examinatlon. Pardeshi Ram (PW-4) - a relativeof the prosecutrix has stated that on the date of incident he had gone to her house and In his~ presence the prosecutrix had narrated theentirestoryto her mother and then the report was lodged, Mohanlal (PW-5) is a police constable who had taken the appellant fbr his medjcat examination. R. L Tiwari (PW-6) isa sub inspector who has done part of investlgation. Nlrvay Singh (PW-7)- the sirt) Inspector who ftad recorded the initial FIR Ex.P-1. Dr. Arvind Nerulwal (PW-8) had medically examlned the appellant and In his report Ex.P-3 has stated th'at the appellant was eapable of performing sexual intercourse. Genda Das (PW-9)- the Kotwar who accompanied the prosecutrix and her father and mother for lodging the FIR. Kallash Bharadwaj (PW-10) has done part of investigation. 9. Minute examtnation of the evidence of prosecutrix, her mother and other witnesses makes it dear that on the date of inctdent the appellant made an attempt to commit rape on prosecutrtx, The prosecutrix, in a very categoricatly term has statedaS fo in what manner she was subjected to an offence by the appellant and thelre is absolutety no evidence on record tp disbetieve the statement of prosecutrix and other wttnesses. I fjnd no force in the argument of Shri Dhote that qnee the comptete penetration was done, the aecused/appellant either shoutd have been convteted under ^Section 376 of IPC or should have been acquitted. Once the prosecutrix has categorically deposed that an attempt was -&"- made to commit rape on her and penetration eoutd not be done then the conviction of the appellant under Section 376/511 isfully justified. Keeping in view the fact that the prosecutrix who at the relevant time was about 11 years of age has been sub.jected to an attempt of rape by the appellant, It does not make thls Court to reduee the sentence imposed on the appellant to the period atready undergone by him as prayed by the counsel for the appellant. 10. Consldering the overall evictence adduced by the prosecution I find that the prosecution has been able to prove the charges against the appellant beyond all reasonable doubts. Therefore the judgment impugned convlcting the accused/appellant for feheoffence under Secttons 376/511 of IPC is just and proper and does not warrant any interference by this Court. Accordingly, the appeal being without substance is Ifabte to be, dismissed. It is accorctlngly dlsmissed. -^ - S(</. Pritmker G'waksr Jadge -"»- :|[....4.