ss^ ^/. CF0000062'82'0' IN TH3 HIG3 CQlEiT Qw JUDIGAIUE® AT J'ABALPHB (M.?.'! CB.APPSAL floy2u^i/l999 > ( MS3AB Op GB.AEESAlj UHDSB S3CTIC@-374C2) OP CB.P.C. ) AFPSLLANT s (IH JAI1) s EBSPOHIffirlI : GQNVIG7ZOST S U/S .376(1) I.P.C, Kbamsiagh, aged about 31 yeaj's, S/o.Hajarilal, OcctiiAgricultiirist, r/o. TillageiFaTOda, larisil & DISTEICTsMAHAS^imD (M.P.) versus - State of Madhya Pradesh SEICTSHCS s IL.I. ?OE 10...33ABS & FIIE__O]!' as.^.OOO/:-'. IN DBFAUlT, 2'mi]£a.iL.i_..^'oB.j_,i3,ffl. M3MO C®CaiMIHAL APPiSAI.. EtlBSS SSCT10^.2Zl!:(2) OF IHSGE.P.C^. jll» &>? APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. IVlr. Justice Pritinker Diwaker) Criminal Appeal No. 1244 of 1999 Khamsingh VERSUS RESPONDENT State of Madhya Pradesh Shri B. D. Badgayan counsel for the appellant. Shri Vaibhav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THECODE OF CRIMINAL PROCEDURE. JUDGMENT (20.08.2010) The present appeal arises out of the judgment and order dated 19.03.1999 passed by Additional Sessions Judge, Mahasamund, in Sessions Trial No. 78/1998 convicting the accused/appellant undeii Section 376 (1) IPC and sentencing him to undergo rigorousi imprisonment for ten years and pay fine of Rs. 5000, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Brief facts of the case are that on 11.11.1997 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 14 years alleging in it that on 10.11.1997 when she was studying in the house of Tiju Sahu (PW-3), the accused/appellant had informed that her parents were quarreling and asked her to go. After hearing that she along with Budhiyarin Bai (PW-4) went up to some distance, then the accused/appellant asked Budhiyarir| Bai to go back saying that she (PW-4) would be alone. She has stated that as soon as she reached at the door of her house, the accused/appellant who was chasing her came from behind, gagged her mouth, took her nearby courtyard and committed forcible sexuai intercourse with her. 3. So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against hir ^" / o '•.^s.-.i^. l'e,' ivi',s ^s^'^ li9i®i1 !131»H!' Bli |BI:II wiS >:iaU^: ilii NBIi »v » c- -^- : and pleaded hisihnocence and false implicationin the case. This apartj twowitnesses namely Ramkishan (DW-1) and Hazarilal (DW-2) have alsci been examined by the defence insupport of its case. i 4. After hearing the parties the lower appellate Court has convictecf and sentenced the accused/appellant as mentioned above. HenGe th^ presentappeal. | 5. Heard counsel for the parties -and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that there is noconcret^ evidenee on record to establish the age ofthe prosecutrixand there is an inordinate delay of more than twenty four hours in lodging the FIRand the said delay has not been explained properly by the prosecution. Hei submits that present appears to be a case of consent where the prosecutrix had permitted the accused/appellant to have physical relation with her. He submits that the medical report of the prosecutrix does not support the prosecution case and the accused/appellant has falsely been implicated because of previous enmity between fathers of ^th^ accused/appellant and the prosecutrix. Alternatively it has been argued by Shri Badgayan that if the conviction of the accused/appellant is maintained,thesentenceof10yearsbereducedtothatof7years. | 1 7. Oh the otherhand, it has been argued bythe State counsel thatthel impugned judgment is strictly in accordance with law and there is no infirmity in the same. He submits that on the date of incident the prosecytrix was a minor girl agedabout 14 years andthere is absolutel^ no evidence on record to show that she was a consenting party.' ^l-f^ further submits that the medical reportof the prosecutrix(Ex. P-20) i^ positive and thedoctor has found injuries on her private part. 8. Prosecutrix (PW-1) aged about 13 years in her Court statement has stated that she is living in her viliage along with her mother and fatherjandl she used to go to the house dfone Dasru fortaking education. Acco[]ding| to her on the date of incident the accused/appellantwho is known tq her had called her by saying that hermother and father were qyarFelin&|anC| i Blfi'S; j SEili %.. "a,l<8a' ^ .-^ff ^thl! «w i ..!ii ii<§E i, lf^l^i.; ^^;:LiilY;^ •••i?l S :i1R »ws itti a1 IHt' fl'tilBii' iill: K SK S1!P 11@B';! -3- therefore she had to go to her house then after taking permission frorri her teacher, she left the said place in the company of Budhiyarin Bai (PW-4). She has stated that on the way the accused/appellant asked heij not to go through the route that passes nearby the shop as number of persons were sitting there and then she proceeded from a different route towards her house and after traveling for some distance, th6 accused/appellant had asked Budhiyarin Bai (PW-4) to go from there and had assured her (PW-4) that he would take the prosecutrix to her housei She has stated that after traveling up to some distance, the accused/appellant took her towards courtyard and thereafter to fence and then to a field and after that threw her on the field, gagged her mouth and committed forcible sexual intercourse with her. She did try to protesf however as her mouth was gagged, she could not raise her cry. Thid witness has stated that after reaching home she did not inform about thd incident to her mother at night and slept weeping. On the second day she narrated the entire incident to her mother who in turn informed her father about the same. She has furi:her stated that her father had called 2-3 villagers and after informing them the report was lodged vide Ex. P-1 and then she was medically examined and her under garments were seized. She has further stated that she is aged about 13-14 years. In th6 cross-examination the prosecutrix stood very firm and has not deviated from her statement made in the examination-in-chief. She has furtheif clarified as to in what manner she was subjected to forcible sexual intercourse by the accused/appellant and she had suffered injury in heif private part. She has categorically denied that on account of village politics she has falsely implicated the accused/appellant. Radha Bai (PW-2) - the mother of the prosecutrix has also supported the version of the prosecutrix and has stated that the prosecutrix had informed heif about the rape committed on her by the accused/appellant. In the cross- examination various questions were put to this witness but she stood very firm and has not made any such statement which may help the accused/appellant. Tiju Sahu (PW-3) in whose house the prosecutrix hacj gone to take education has also supported the prosecution case. Similai; is the position with thestatement of Budhiyarin Bai (PW-4) wha accompanied the prosecutrix up to some distance and then th^ ii aai H!ai a'i SKSf !B"! 1911 Si; IKL t' ;t —4- accused/appellant had asked her to go back by saying that he would drori the prosecutrix to her house. Nihali Ram (PW-6) is the Patwari, had ! prepared thespot map (Ex. P-3). Dr. Baghel (PW-7) who medicatly examined the accused has'stated in his report Ex. P-4 that th^ accused/appellant wascapable of performing sexual intercourse. S. Kj Swarnkar (P-8) - the Investigating Officer has supported the proseCution case. Dr. Smt. Tara Agrawsil (PW-10) wto medically examined th^ ; prosecutrix had given her report Ex. P-20 has stated that upon interna] ' examination of the prosecutrix she found number of injuries nearlabi^ minora, the same was reddish and upon touch she was complaining painj; she was not habitual to sexual intercourse and her sexual organswerg not fully developed. She has stated that as per her opinion the prosecutrix was subjected to sexual intercourse. ' 9. Minuteexamination of the evidence available on record particularly the statement of the prosecutrix and the manner in which she waq subjected to sexual intercourse, this Court is of the considered Qpinion|ti that version of the prosecutrix being quite trustworthy inspires, fu(t 3 confidence of this Court as the defence hasnotbeen able elicit anythingi which may falsify the case of the prosecution. Even the statement of the|| doctor who examined the prosecutrix also makes it clear that the!;! prosecutrix was subjected to sexual intercourse. In this factual speetrum!! duly punctuated by the evidence of the witnesses, the findings recorded bythe Court below convicting the accused/appellant underSection 376; (l)IPCappearstobefullyjustifiedanditisherebymaintained. |' 10. As regards senfence, counselforthe accused/appellant submit^K that as the incident had taken place in the year 1997 and in.the!j': meanwhile both, the appellant as also the prosecutrix might have beefll leading a settled life elsewhere, it would be in the interest of justice ifthe;; sentence imposed upon the accused/appellants is reduced.to fhe periQc|'j? :PL of 7 years form that of 10 years. This prayer does not appear to belj.' unreasQnable and therefore allowed. Jail sentence of 10 years isj^ i reduced to that of 7 years. Order accordingly. ____————~" ^ pTitinkerD""'aker Judge ^s^fs ^ -[• ^ f -> ^ IBI^ ^M\ :S£: )11s. z^ MK"'-