HIGH COURT OP CHHATTISGASSH, BILABPUR C^imtaal Aopeal ISo.76 of 2002 APPBLLA^T Amutya Sirdar @ Ami-dya San-lar, aged about 60 years, S/o Bhim Saidar, Resident of P.V. No. 122, Thaaa Paaldiajur, District Kaaker, RESPONDEHT Appearasace: Versiis State of ChliattisgaA, Thi-ough the Distdct Kaiiker. Magistrate, Ms. Minu Baiieqee, counsel for the appellant, Shri D.K. Gwalre, Adclitional Public Prosecutor for the State. ORAL JUDGMENT (16.03.2007^ SUNIL KUMAR SINHA. J Heai'd, Tliis appeal is drrected ageinst the jiidgment of convicfion aiid order of seiitence dated 22.11/2001 passed in Sessions Trial No.20/2001 by tiie Second Additional Sessions .Jiidge (FTC), Kanker (C.G,), whei^eby, the said Court after lioldiBg the appellaut guilty of the offeuce punishal^le iinder Section 376 (3) (1) of TPC, senteuced hi-m to undergo R-I, for 10 years aiid to pay a fine of Rs.5000/-, iii default ofpayment offiiie to farther rindergo RJ. for 20 siionths. The brieffacts are that the appellaiit and prosecutrix are the resideiits of sanie locality. The appellant is the neighboiir of the proseciitrix. The case of the prosecution is that on the date of iricideut i.e.on 7/9/2000, niother aiid fafher of the prosecutrix were iiot present iii tlie house. She was 111 lier house along with her elder sisfer naniely Ganga aiid auother younger sister nsmely -^' Cr.Appeal No.76/2002 Pratibha. The appellant came to tlieir lioiise at ahoTit 12:00 in the noon aiid sat cn tlle chair, whid-i wes kept iii vei'anda, Thereafter, he calle.d the prosecutrix towai'dls hmi and after pntting off the underwear of the prosecntrix and also after pTittmg<3ff his own lower clothes; he took the proseciitrix on his 1ap and ii1tiiiiately, penetrated his penis into the vagins of t1^e piDseciitrix. The hlood started ooziiig out froni her vagirsa, which ii1timate1y staiiied the "iUidei'weai' of the prosecutrix, wliich she piit on after t1ie sexTiRl intercourse. Thereafter, the appe11ant went away from the ptace of occurrence. When, after soBietime, 5T$other and fat^er of the prosecutiix retiime.d froin tlie fields, the proseciitrix naiTated the stoiy to tJieiiti, a Paucliayat was conveneel in t1"ie niglit and ultimately, ia ffcie mteryenmg night of7th & 8tl1 of September 2000, FIR was lodged by iiiother oftlie prosecutrix nei^ely Gulapi Gayin (PW-2) vide Ex.-P/ 1 iii the concenied Police Station. After lodgmg of the report, the prosecutrix was se.nt for siiedical exajninatio5i under Ex,-P/6, where Dr, (Sirit.) Kii'anlata Tliakiir examined her aud ps-epared a report iinder Ex.P/6-A. Accoi'ding to her repoi't, the girl was ofa teiider age, her secondaiy sexual cheracters were not developed, auxiliaiy aiid p^ibic hairs andl the breasts were a1so iiot developed. She noticed one ebrasion on the 1eft cheek of the prosecutrix, On inteiTial exasiirhiation, ?»he foiind her hymen to be recently niptured witli congestion present at the niargros of ruptured hysi^en aiid sUght bleediiig was al^o present. Her vagina was hardly adniittuig little finger fhat too -ap to the tips. She opiaed that the gir1 iiiay have been siibjectefi to sexiial inteix'ourse. Thereafter, acciised was aiTested on 10/09/2000 anfl he was also niedicaUy examined by Dr. Devendra T^UTe (PW-7), w1io gave his opuiion tliat he was physically able to perfonn sexiial intercourse. He prepared his 5-eport vide Ex.P/8. Diiring the cozirse of investigatiosi, school adniission reg-ister was a1so seteed under Ex.-» P/4 and copy of said register was ohtained vide Ex,-P/7. According to the entdes m the school register, date ofhirth ofthe prosecutrix was 7/7/92 and she was admitted to Class-T on 3 Cr.Appeal No.76/2002 'ux' ^/ 28/7/95, Her naine was entered at Sl. No,305 in the aforesaid register, After conipletion of the iiisiiRl investjgation, cl-sarge sheet was filed ia tlie Couil ofcoiicenied Magists^Lte, from where, the roatter was coiiiniitted to the Court of Sessions and was r'eceived on trarisferby the II Additional Sessions <Judge (FTC), Kanker (QG,), who ultiaiately, coucluded the tria1 aiid passed the inipiigned judgnientdated 22/11/2001. Tt is against this judgnient of conviction ajid order of sentence awarded to the appellaiit, the appellaiit has prcfeiTed this appeal, Conviction of tilie appellarjt is hpsed upon the testimoiiy of tlie proseciiti'ix naniely Janiiina Gayin (PW-1), which is duty supported by the evidence of her niother namety Giilapi Gayin (PW-2) aiid Dr.(Smt.) Kiranlata Thatair (PW-4). Leanied counsel for t1ie eppellant siibniits fhat there are niany discrepaiicies in the evidence of the prosecnti'ix, therefore, no reliaiice can be placed on ber evidence ansl coiiviction based upoii such evidence ofthe prosecTitrix should be set aside. On the other hand, leai'iied counset for the State supports fhe judgirient of coBviction and oiTler of sentence passed hy the Sessions Court and pi-^ys fbr disiBissal ofthe appeal. T have heard leamed coiinsel for the parties at leiigth and have also penised the records ofthe Sessions Tria1. So far as age of the prosecutrix is coiicenied, there are two sets ofevidence iu tliis regard, The first oDe is the evidence oflier motilier liaiiiely Gulapi Gayin (PW-2), who deposed vide para 2 tliat her daughter namely Jajznina Gayiii was aged aboiit 8 year^. Slie was studying in Class I? m a Priniaiy School sitiiated in P.V. No.l22> Pasikliajiir, Slie was yoiinger than the ofher daughter iiaiaety Gaoga, who was stiidyiitig m Class IV in tliB sarae scha3l. She deposecl that Janiiina wss 2 years yoiinger than Ganga. The second set of evidence is the entnes in the school records showing tlie date ofbirth. l3i this regai'd, the proseciition has exaiBiued the C^'.Appeal No.76/3002 ^/ . /-- Head Master of tlie School namely Shri D.S. Bhaskar (PW-5). He has deposed that he is working as a Head Master in the said School siiice 1986. Accoi^mg to the adinission register of the school (Ex,-P/7), at Sl, No.305, thesie is aii entiy pe-rtainuig to the admission offlie prosecutrix; accordmg to whieh, her date ofhirtli is 27/7/92. The evidence of niother as also the entiy of school admissioii register have not been assailed by the defence and evidence of these two witiTiesses on the point of age is iiitact Moreover, Hiedical report-ofthe Doctor Dr.(Sint.) Kiraiilata Thalnir would show that cn the date of exanimation i.e. on 08/09/2000, her secondaiy sexiial chai^ctei^ were not developed , aiixilieiy and ptibic haira asid the breaste were also not developed. She had cluiicaTiy obses'ved her age to he 7 years in her report Ex.P/6WA. On tlie date of exaisiuiation of the proseciitrix in the Sessions Court i.e. on 24/4/2001, the Coirrt has assessed ber age as 8 years. The two kiiids of evidersce pertainmLg to the age of tlie prosecuti'ix and obseivatioiis iTiade by the lady Doctor contsme.cl iD the niedical report aud farther by the Sessions coiirt would prove that hi fact, the prosecutrix was aboiit 7-8 year^ on the date of incident axid the Co'art below has rightly detenniBed so vide para 9 ofthe jiidgment, So far as evidence regardiiig incident m conicemed, prosecutrix (PW-1) deposed before the Conrt that on tJie fatefsil day, when she was playing with her younger sister naiaely Pratibha ui the veranda of their house, this appellant carae over fhere aiid after putting off her irnderwear, be also put ofT his own lower clotJies aiid thereafter, he peneti-ated h-is penis mto lier vagiaa, 011 \A?liich, she felt severe pain aiid red-black siabstance started oozing out from her vagina. She elso deposed that at that tisiie, the appellant had gagged her mouth. When the said mcideiit had occiiiTed, her elder sister - Ganga was sleeping in the iTioiise aiid* she woke up, when the appellant left tlie place of occuiTence, As sooii as Ganga woke up, the prosecutrix naiTated the stoiy to her. Thereafter, when her niother came back to the house Rfter Cr.Appe^ No.76/2002 (^) abont lialf an hour, her yoiiuger sister siamely Pi'afibha sian'ated the story to her, on which, motlier inade enqiuries froni the prosecutrix and she disclosed the above facts to the mother. In the cs-oss-exaniinatioii, though some niiiior deviatiorss a'x^ there pertaining to caiising ofiiijuiy by one Gauesh Raui, biit iiltmiately, evidence of the piDsecutrix remaiB^ iiitact on t1iie point tJlat she was subjected to forcefixl sexual iDtercoiirse by tlie appellant on tilie said date a.nd tiine, due. to which, she received injuries on her private parts. She has denied the suggestions given hy the defence counsel that the appellaiit has not penetrated his penis mto her private part. The niother naniely Gulapin Gayiii (PW-2) also deposed vide para 3 of her evidence tliat at about 2:00 p.sii. on the said date, wlien she retunied back from the fields, her daiigbter to1cl her that the appellai^t had caiize to their house and after piitting off her uiiden/vear, he conijiiitted sexual intercoiirse against her. Thereafter at abozit 3:00 p.m., her hiisband came to the house and she siarrated tlie stosy to liini aud then, a Paiichayat wes coiivened in the village as to what should be done a'acl thereafter, a report was lodged iii the police station iii the uight itself So far as the above evidence is coucemied, nothiug lias been brought by the defeiice ia her cross-exaiiiination to discn3dit her testiinony. Dr. (SiTit.) Kiraiilata Thakiir, who had exaniiiied the prosecutrix on 08/09/2000 proved lier report as Ex.P/6 A. As stated above, accoiTling to her, there was an abrasioii on the left cheek of the prosecutrix ajid except that tbere was 110 exteiTial injuiy. However, on nitemal exRmiiiation, she fr)iind her hymen to be receiitly ruptured with congestion present at the iTiargins of niptiired hyaien asid slight bleeding was slso present. Leamed coiinsel for fhe appellaut Rrgiies 011 the iTimor discrepaacies praying for di^cardmg the testimony of the prosecutrix. ^-•' Cr.Appeal ??o.76/2002 -../^ It is a settled priiiciple of law that overoiiicli mipos'tajice caanot be giveii to siiioor discrepaiicies. Discrepancies which do not go to the roqt oftlie raatter and shake the hasic vei'siou ofthe witnesses, tlierefore, caiinot be annexed with -sindiie importance. More so when the all miportant ffprobahilities-facto5^ eehoes in favour of the version iiaiTated by the witnesses. Please see BhcssvmdaBhQQinjbhssiHirft&haA ^s^ Stute ofOafara^AIRJ9S3 S.C. 7S3. It is equally well settled that when the versioii of the prosecutrix or a witness inspires coniidence of the Coiirt and the Court feels it proper to depend o'n testiniony of the prosecutnx, a conviction can well he hased on the sole testimony of the prosecutrix neediiig 510 coiToboration thereof. The principle pertainiag to testimoiiy ofa solitary witness eqiialty applie^i m case of a rape victini that neither the I^egislature nor the jiidiciaiy Biandates fhat there iiiust be particular numher of witnesses to record asi order of coiiviction against the acciised. Oiir legal systeni has always laid emphasis on valiie, weiglit and quality of evidence rather thau on quaiitity, multiplicily or pluralily of witaesses. Observing fhese principles, iii the niatter of Xamdeo ^s* State ofMsaharashtra 3007 AIR SCW 1B3S, the Apex Court said that it is, therefore, open to a coiiipetent Court to futly and conipletely 3'ely oii a solitaiy witness and record couviction. Conversely, it inay acquit the accuse.d iii spite of testmiony of severa3 witiiesses if it is iiot satisfied aboLit tlie qiiality of evideiice. The Court niled the bald coTitention that no convictioii caji be recorded in case of a solitajy eye-witiiess, as in the said case, therefoiie, has 110 force and iiuist be negatived, Tt is s1so to he Aienieiiibered fhat the status of the victim of a rape case is equivalent to the stafiis ofan injiired witness anrl tl-te evidence ofa victim. of sexiial assault stands on par witli evidence of an injured witness. Just as awitness who has sustained an ii^jiiry is the best witness in the sense that he is Teast likely to exciilpate fhe real offender, the evidence of a victiBi of a sex offe'oder is eiititled to O-.Appea! N©.76/2002 @ ^-'-' c; greatweight, absence ofcoi?roboration notwithstarsdiiig. Please see Bharwadn Bh^Qinbhai Hirfibhai - Vs - Stsate of Gufar^ AER 1Q83 SC 753 refen-ed by the Apex coiirt 111 the iiiatter ofSfe^e_of T<mal Nodu-Vs.- Rfwi ^Nehru. 3006 (7^ SBR ^64 while dealing witli a case of rape victim, aged aboiit 4-5 years. Ifwe exaiBisie the evideiice ofthe prosecutrix, iu light ofthe priiiciples refeiTed to above, it woiild appear that her evidence is uitact 011 the poiiit that on the date of iiicident, this appenant visited her hoiise aiid tBMng advantege of the si'tuation that niotlier asiid father of tiie girl were not present, he conimitted forcefiil sexiial iiitercourse agaii^st the prosecntnx, due to which, she receivecl iujiiries 031 her pi'ivate parts. Tliere is a1so 110 dispiste tliat fhe proseciitrix was helow 12 years of age on the date of iiicident and the tnal Court coms^itted 110 eiTor of Isw in holding that flie appellant couimitted an offence punishable iinder Sectioii 376 (2) (f) ofIPC. Not onty this, lier evidence is con'oborated by the evidence of niother as well as by the evidence ofDoctor. There is no merit ui the appeal and the same is dismissed, Conviction arid sentence awairled by the Sessioiis Coiirt are liereby confinned. [ 1 Sd/- 1 Sunil Kumar Smha i Judge Shyna