HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: oram: ON’BLE Mr.T.P.SAR & HON’BLE Mr.R.N.CHANDRAKAR, JJ. anu Ram, s/o. Chhertu Uraon, aged about 22 years, occupation Agriculture, r/o. villae ingarhi, Thana Katghora, District Korba (CG). (In Jai Vs. (Crimina Appeal nder Section 374 (2) of the Cr.P.C.) i u Present: Shi . Dewangan, counsel or the appellant. J.A hani, Panel Lawyeforte State. JUDGMENT (Delivered on 1—12—2011) Per Thar, .P.Sma J.:- Challenge in this appeal is to the judgment of conviction and order of sentece dated 28-1 1—2005 passed by Sessions Judge, Korba, in Seions Tial No.07/2005, wery and whereunder learned ss r heb Sessions Judge, Kotba, after holding the appellant guilty‘ for commission of rape with girl aged below ten to twelve years, convicted him under Section 376 (2)(f) of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.5000/—, in default of payment of fine to further undergo Rl for one year. C H HMA Criminal Appeal No. 10/2006 J g Ma Appellant l) State of Chhattgarh through P.. is S Respondent. Katghora, District Korba (CG). ' r KK. f Shri . Lo rh n Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. As per the case of prosecution, on 13-9-2004 at 4.00 p.m., when prosecutrix — PW/1 (name not mentioned) aged about ten years was grazing cattle along with Nannoni @ Sat Kumari (PW/10) and Ranjtin (PW/11), appellant was also present there. After sending PW/10 Nannoni @ Sat Kumari and PW/11 Ranjtin from the place of incident, appellant committed intercourse with prosecutrix and caused substantial injury on her private part. Her clothes were stained with blood and after commission of offence she came along with her friends to her house and narrated about the incident to her maternal grand—father namely Negi Prasad (PW/2). Negi Prasad (PW/2) grand-father of prosecutrix went to Police ~ Station Katghora and lodged first information report vide Ex.P/1 on 15-9—2004, blood stained lungi used by appellant was seized from Negi Prasad vide Ex.P/2, after obtaining consent, prosecutrix was sent for medical examination and was examined by Dr. Smt. R.Dahire (PW/7) vide Ex.P/8, who found that secondary sexual characters of prosecutrix were not developed and no external injury was found, perineal tear present at 6 0’ clock position in the size of 2.5 cm x 1 cm. She was referred to Radiologist, District Hospital, Korba, for internal examination where Dr. G.S. Kanwar (PW/6) conducted radiological examination of prosecutrix and opined that on‘t‘he basis of Ex.P/7, her age was between 10 to 12 years. Under—garments and vaginal slides were seized vide Ex.P/14. "‘ «x @j Appeant was examined by Dr. H.D. Dahire (PW/5) vide Ex.P/4, ll who found that the appellant was competent to commit intercourse. Pubic hair and slide prepared from semen of appellant were seized vide Ex.P/16 and under-garment of accused/appellant was seized vide Ex.P/17. Seized articles were sent for chemical examination vide EXP/18. Prosecutrix was also sent for further examination to District Hospital, Bilaspur and she was examined vide Ex.P/19—A. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘Code’) and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Katghora, who in turn committed the case to the Court of Sessions Judge, Korba, who framed the charge against the appellant under Section 376 (2)(f) of the IPC. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 15 witnesses. Statements of the accused/appellant was recorded under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. After providing opportunity of hearing\t.o the parties, learned Sessions Judge, Korba, convicted & sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. Learned counsel appearing for the appellant vehemently argued that conviction is based on the evidence of prosecutrix (PW/1) and +7, two child witnesses PW/10 Nannoni @ Sat Kumari and PW/11 — Ranjtin who were aged about ten years and their evidence are not safe to rely for conviction of the appellant without corroboration from independent sources. Dr. H.D. Dahire (PW/5), Dr. G.S. Kanwar (PW/6) and Dr. Smt. R.Dahire (PW/7) who have examined the prosecutrix, have not given clear opinion that prosecutrix was subjected to intercourse. Inter alia, as per evidence of Dr. Smt. R. Dahire (PW/7) injury found over private part of the prosecutrix would have been caused by hard and blunt object which negates the commission of offence. He further submits that in order to convict the appellant under Section 376 (2)(f) of the IPC, prosecution was under obligation to prove the fact that at the time of commission of offence, prosecutrix was aged about 12 years and burden Iies upon the prosecution, but prosecution has failed to prove such facts and discharged such burden. In absence of such proof, it would not be possible for prosecution to ascertain the age of the prosecutrix was below 12 years at the time of commission of offence. On the other hand, Shri J.A. Lohani, learned Panel Lawyer for the State/respondent opposed the appeal and argued that conviction is based on the evidence of prosecutrix (PW/1) and two child witnesses PW/10 Nannoni @ Sat Kumari and PW/11 — Ranjtin, who were present on the spot, which is further corroborated by the evidence of mother of prosecutrix namely Sukhari Bai (PW/9) who has seen the injury over private part of the prosecutrix. The evidence of prosecutrix (PW/1),; two child witnesses PW/10 Nannoni @ Sat Kumari and PW/11 — Ranjtin and Sukhari Bai (PW/9) inspire confidence and trustworthy and same are sufficient for drawing inference that present appellant committed intercourse with prosecutrix and after appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellants as aforementioned. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. As per evidence of prosecutrix (PW/1), she along with PW/10 Nannoni @ Sat Kumari' and PW/11 — Ranjtin had gone to field for grazing cattle, at that time appellant was also present there. After sending her friends PW/1O Nannoni @ Sat Kumari and PW/11 — Ranjtin from the place of incident, appellant committed intercourse with her. Her private part was stained with blood. She narrated the incident to her friends and also to her maternal grand-father Negi ' Prasad (PW/2) grand-father, who lodged first information report vide Ex.P/1. Defence has cross-examined this witness at length. She has categorically. deposed that present appellant has caused the offence as aforementioned. She has denied the suggestion that she was tutored by her counsel. PW/10 Nannoni @ Sat Kumari and PW/11 — Ranjtin have deposed that they were grazing the cattle at field along with prosecutrix, appellant sent them from the place of incident and he was with prosecutrix. The aforesaid witnesses are aged about ten years. The court below, after satisfying that these witnesses would speak truth and are in a position to give answers rationally, examined them who have categorically deposed the facts in their cross- examination and have answered the questions rationally. The evidence of the aforesaid witnesses is corroborated by the evidence of Sukhari Bai (PW/9), mother of prosecutrix. As per her evidence, prosecutrix narrated about the incident to her and her Lungi was stained with blood. She had seen the injury over the private part of the prosecutrix, blood was coming from her private part. ‘The evidence of this witness and two child witnesses inspire confidence and trustworthy. The evidence of the aforesaid witnesses are further corroborated by the evidence of Dr. H.D. Dahire (PW/5), Dr. G.S. Kanwar (PW/6) i and Dr. Smt. R.Dahire (PW/7) and medical report (EXP/8) that private part of the prosecutrix was torn and the wound of size of 2.5 cm x 1 cm are sufficient to prove that present appellant has committed intercourse with prosecutrix. As regards the question of age of the prosecutrix is concerned, definite age of the prosecutrix has not been proved by the prosecution. As per x- ray and radiologist report, age of prosecutrix was between 10 to 12 years. ln these circumstances, it is difficult to hold that at the time of incident age of prosecutrix was below 12 years. Considering the marginal age on*the basis of Ex.P/7, it is difficult to hold that appellant has committed intercourse/rape with her/minor girl below age of 12 years, but the evidence, is sufficient to prove that appellant has caused rape with minor girl prosecutrix. After appreciating the evidence available on record, learned Sessions Judge, has convicted the appellant under Section 376 (2)(f) of the IPC 'and sentenced to undergo life imprisonment and fine of Rs.5000/—. In order to convict the appellant under Section 376 (2)(f) of the IPC, prosecution was under obligation to prove the fact that the age of prosecution was below 12 years but in absence of such proof, conviction of the appellant under Section 376 (2)(f) ofthe [PC is not sustainable under law. 15. For the foregoing reasons, the appeal is allowed in part. Conviction of the appellant under Section 376(2)(f) of the IPC is altered into Section 376 (1) of the IPC and considering the age of prosecutrix and injury found over private part of prosecutrix, appellant is sentenced to undergo RI for ten years and to pay fine of Rs.2,000/—, in default of payment of fine, to further undergo RI for six months. w‘h Sdl- Sdl- T. P. Sharma R.N.Chandxakar Judge Judge