^gh Bgngj IN THE HJGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Cr. A.No. ^' /2005 APPELLANT )(IN JAIL) E/j^ ..' I"Q'^--' \<v"~ , ^iAS ^^ •ff^ w Nassir Khan, aged 32 years S/o. Ahruad Khan, ^n R/o Bjarang Nagar, Mohara, P.S. Basantpur, Tah. & Distt. Rajnandgaon (C.G.) ^^ RESPONDENT VERSUS The State of Chhattisgarh Through P.S. Basantpur Distt. Rajnandgaon (C.G.) CRIMINAL APPEAL U/S. 374(21 OF Cr.P.C. AGAINST THE JUDGEMENT AND CONVICTION DATED 26.11.2005 PASSED IN S.T.NO. 05/2005 BY SESSION JUDGE, RAJNANDGAON (C.Gt jC^-UBSZICaUQBL _ayW Tt-B»•KT^-V^ l»!F:i1?!T^t ^(?r,'?E'r'FiI!;:ai^';Tr?"^SW?l!^ ^n HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 945 of 2005 APPELLANT RESPONDENT VERSUS Nassir Khan. State of Chhattisgarh. Shri Uttam Pandey counsel for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (16.12.2009) This appeal is directed against thejudgment dated26.11.2005 passed by the Sessions Judge, Rajnandgaon in Sessions Trial No. 05/2005 convicting the appellant for the offences punishable under Sections 376(1) and 506-B of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 1000 u/s 376(1) and to undergo rigorous imprisonment for one year and pay fine of Rs. 500 u/s 506-B IPC plus default stipulations. The appellant has however been acquitted of theoffence under section 344 ofthe Indian Penal Code. 2. Case of the prosecution in brief is that on 4.10.2004 a written report Ex. P-1 was lodged by the mother of the prosecutrix namely Rukhsana Begum (PW-1) from Central Jail, Jagdalpur alleging (hat taking advantage of her absence in the house on account of her detention in connection with the offence punishable under the NDPS Act, her daughter (PW-12) was subjected to rape by the appellant who happens to be her step father. The prosecutrix is alleged to have been subjected to rape six months prior to the lodging of report i.e. 4.10.2004. On the basis of said written report FIR (Ex. P-7) was registered by the police on 13.12.2004. !l,UilALi- 2.- 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 13 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 charges levelled against him and pleaded his innocence and false implication in the case. This apart, one witness namely Rajia Begum (DW-1) was examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offence mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that present is a case of consent where the prosecutrix (PW-12) had permitted the appellant to have physical relations with her for about six months before lodging the report. According to him paragraphs 14 and 15 of her evidence clearly show that the prosecutrix had sufficient opportunity to lodge the report earlier also as she has categorically stated that the appellant had forcibly taken her to Bajrangnagar Mohara and while going to Bajrangnagar Mohara along with the accused/appellant, she had seen the police men standing on the two different traffic points but she did not report the matter to them of her being taken by the appellant forcibly. He submits that the prosecutrix herself has stated in her evidence that even after reaching Bajrangnagar Mohara she did.not disclose the incident of being forcibly brought there, to anyone. According to him, the prosecutrix has stated in her evidence thatshe had never raised cries nor called the persons from neighbourhood and for the first time she had disclosed the incident of rape to her mofher when she was produced in the Court in connection with the NDPS case. He further submits thatin the present case the prosecutrix was not confined anywhere and therefore she coutd have lodged the report at the first instance itself. He submits that the medical report of the prosecutrix does not support the case of the prosecution and the' 3- doctor has not opined anything in respect of the recent intercourse with the prosecutrix. According to the counsel for the appellant, statement of Rajiya Begum (DW-1) who is the maternal aunt of the prosecutrix makes it clear that when the mother of the prosecutrix was in jail, she had met the prosecutrix who was residing with her father, on two occasions but no disclosure of the incident of rape was made to her. He further referred to the statement of this witness where she has stated that the prosecutrix was not locked in the room. 7. On the other hand counsel for the respondent/State supports the judgment impugned and sub'mits that according to the school record Ex. P-5-C the date of birth ofthe prosecutrix is 15.9.1989 and therefore on the date of incident she was minor. He submits that even on the date of registration of FIR she was below 16 years of age. He submits that date of birth of the prosecutrix has been duly proved by Ashok Kumar Shrivastava - Head Master of the School (PW-5). According to the State counsel as the prosecutrix was minor, consent, if any, on her part becomes immaterial. In respect of medical report, it has been argued by fhe State counsel that as the prosecutrix was continuously subjected to rape for six long months, medical report is bound to be negative. As regards delay in making the compiaint and registration of FIR based on that, it is argued by the State counsel that the prosecutrix has categorically stated that the accused/appellant was continuously subjecting her to rape by putting her under threat. She has stated that the accused/appellant had also assured her that if she permitted him to have sex with her, he would get her mother bailed out. 8. If the entire evidence collected by the prosecution is subjected to careful scanning, it becomes apparent that at the relevant time mother of the prosecutrix namely Rukhsana Begum alias Bharti was in jail in connection with an NDPS offence and during this period the prosecutrix was living with the appellant who happens to be her step father. Prosecutrix (PW-12) has categorically stated in her evidence that six months prior to lodging ofwritten report i.e. 4.10.2004, she was subjected to rape by the appellant and this act of the accused/appellant te; -<•- continued for about six months. She has further stated that the prosecutrix was looking for an opportunity to disclose the incident to her mother Rukhsana Begum alias Bharti (PW-1). According to the prosecutrix, when her mother was brought to the Court from Jail, she had informed her about the commission of rape by the accused/appellant. Mother of the prosecutrix (PW-1) with the help of j'ail authorities lodged written report (Ex. P-1) in Police Station Basantpur, narrating the pathetic condition of her daughter as also that of her own. Based on the said written report, FIR (Ex. P-7) was registered by the Police. Statement of Rukhsana Begum alias Bharti (PW-1) makes it clear as to how she was informed by the prosecutrix about her ravishment at the hands of the accused/appellant who unfortunately happens to be her step father. Ashok Kumar Shrivastava - Head Master of the school (PW-5) has stated that as per the school records (Ex. P-5-C) the date of birth of the prosecutrix is 15.9.1989. Even the mother of the prosecutrix - Rukhsana Begum alias Bharti (PW-1) and Dr. (Smt.) Sushma Kumre (PW-9) who medically examined the prosecutrix, have stated the prosecutrix to be aged about 13 years at the relevant time. Thus, as regards age of the prosecutrix, it is not in dispute that at the relevant time she was below 15 years of age. Statement of Dr. Y.K. Tiwari (PW-11) makes it clear that on medical examination of the accused/appetlant, he was found to be capable of having sexual intercourse. The statement of the prosecutrix (PW-12) unambiguously stating in detail the villainous and shameful act of the accused/appellant scandalizing the father-daughter relations in human psyche, does not make this Court to look for any corroboration of her testimony. Delay in lodging the report has also been satisfactorily explained by the prosecutrix in the terms that she was continuously looking for an opportunity to unveil the incident and as soon as she met her mother in the Court after being produced by the pblice in connection with some NDPS case, she apprised her of the same. Medical evidence, after continuous sexual exploitation of the prosecutrix for a period of six long months, cannot be expected to yield anything positive and hence the stand taken by the defence that the agpnf W^Q ^>l"*lud -/PS •peujjiye si 'UO!)USLU 0} sseipesu '}U9Lu6pnfpeu6nduj| •passiujsip A|6u!pJ03oe sj )| 'iueiu ou SBL) |B3dde 941 'ynssj B sy '01. •AJBJ}UOO eq) o) MeiA e e»|E} 0} pno3 siqi euiA.up eiqeeosou si uisjeq) Atiiujyui jo A)!|e69||! 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