HIGHCOURTOFCHHATn8GARH^aiLASPUR Crimin^ Ho.402 of2Q01 APPELLANT Aiiiai'smgh @ Bhnlwa s/o Prahhu Gk>nd, aged about 20 yearSy R/o Ujiyarpiir, TehsU A -P.S.H. Maiiendragarh, District-Koria(CG) .^ RBSPONDEHT 1-^ Versiss State of Clnhattisgaji'h, Through P.S.H. Of&cer Manendragarh, District-KoriafCG) Appearaiiee: Shri J.K,Shastii, counscl tbr fhc appcllaa.t Shri D.K. Gwalr^ Additional Piiblic Prosecutor for the Rtate. QRAL^JUDGMEliT (17.05.2007) SUHIL KUMAR SINHA. J Heard, This appeat is directed agai-nst tl^e jiidgment of co?3viction aiid order of seutence dated 27.2/2001, passed in Sessions TrieT No.366/2000 by the Additional Sessions Jiidge Manendragarh, Distiict-Rona, whereby, tilie said Coiis't efter holding the appellaDt guilty of the offeiice punishable iinder Section 376 (1) (11) of IPC, seiitenced hiin to undergo R.T, for 10 yeai-s aiid to pay a fuie of Rs.500/-, in default pfpaysiient offine to fiiilher undergo R.T, for 3 nionths. The case of the prosecution is thst on 14.4.2000, et aboiit 10.00 pai, a iiiardage functioii was going on in the house of one Baijnath Siiigh (PW-5), The prosecutrix nairiely-Kn.Jagsnatiya (PW-1), a girl aged about 8 years^hsd slso gone to atteTid the fiinction, The allegatious are that when stie was working in the niamage house, the appellant came over there and put her on his ^ \ C^.Appeal N0c402/2001 lap and thereafter, took her in the Bad?" ofthe house^ thi'ew her 011 fhe ground, removed her iinder-wear and coiiiimitted sexual intercourse against her. When the proseciitiix tried to make a noise, he gagged her iiiouth. After tbe iBcident bleeding started coniiiig out frora tlie vagina, wbich stained her Tinder-wear. The appellaat wliile. leaving the place of occun'ence^fhreatened the. prosecutdx tliat if she will disclose the matter to her parents, he wiU beat her. The farther case of the prosecnliou is that on account of the injuries recewed by the prosec-iiti'ix^ she sterted lioipmg and whe'o 1ier mother cotild notice ahnon^ality in walkiiig and also the depr€s$»ion,she asked t1ie proseciitrix ebout it, then tilie proseczitrix after 2-3 days, naiTated the roatter to her i^iot^er naDiely-Maiikirowar(PW-2), w1^o nan'ated it to ber hiishanrl naniely-Dtibe Singli (PW-6), Thereafter, they weiit to Police Salinyata Kendra^ Nagpur, whei-e Dehaii Naliciwas recorded iinder Ex.P/loii 18.4.2000 at about 20.10 hoiirs, based on which, the first iaformation repoi-t Ex.P/1-C was registered on the sanie day at ahout 20.30 tirs. The prosecutrix was sent fbr iBedical exaiiiinatioD to tlie CoiTisiiiisiity Health Centre, Mejiendragarii, where she was examined by Dr.(Mrs,) Seeiiia C1iianpiiria(PW-8), wlio prepai^d her report Ex.P/7. According to her, the proseciitrix was a girl aged about 8 years. There were no extenial injuries o"o 1ier body, Her auxiliaiy hairs aiid p-abic hairs wei-e not devetoperi aBd her hreasts were also iiot developed, There were no injuries 0-0 the pubic area of the proseciitnx. However, there was tendemess along with reddishness on the libia iiiajora. She noticed one vertical woiind admeastiring 1 cni x 1/5cDix 1/5 cni ou the fbiirchette, in which, the healiiig processes has begiiD. The exainination of valva was painfiil aiid white tiquid substance wa^ foiiud in vatva. The hyniien was niptured and four radial woiinds we're present, wliose iiiargins were tendered and reddish and they bleed on touch, Valva was adiOLittuig one fiiigerwitli great pains. During the cou5~?»eoffurther Cr.Appeal No.402/2001 iiivestigatioii, a sight plaiiwas prepared under Ex.P/ 12 and iinder- wear as well as 2 slides preparecJ hy the 1arly Doctor, while iiitemial exaiBination ofthe proseciitnx were sent for cheiiiiical exaniinatioTi to F.S.L. Sagar. The F.S.L. report was also received vide Ex.P/11. The appeJlant was aiTested and was sent for medical exairdiiation, He wss exaniined by Dr.S.N,Gupta(PW-4), wtio prepered his report Ex.P/3, accordi-og to which, the appellant was capahle to pei-foi'iii sexual iiitercourse. After coiTipletion ofusiial investigation, charge sheet was filed against the appe11ant. The leanied Sessions Jiidge, after recoixiing t1^e evidence of prosecution witnesses ai-id after examining the acciised iinder Section 313 Cr.P.C. and after heaiing tlie srguments of both the parties, held tJie appellaiit guilty- of offence punishable under Section 376(1) (1) IPC and sentenced hmi as aforementioi-ied, It is agauist this jiidgnient of convicfion and order of sentence, the appellaiit has prefen'ed this appeal. The conviction ofthe appellant te based upou the testimony of prosecutiTX- Jaginatiya(PW-l), her mother-Mankiinwar(PW-2), her faflier-Dube Singh (PW-6) a?td Dr.(Mrs,)Seenia Chanpuna (PW-8). Leanied coiinsel for the appellant argiies that the conviction based upors the testiiaony of the prosecutnx Rud tbe medical evide-ace is not hi accordance with law. He sTihiTtits that the prosecutrix is an iinreliable witness; tlierefore, her testimony should be disbelieved. He also argties that the proseciition coiild not establish that t1ie proseciitnx was under 12 years of age, therefore, the appellaiit could not have beeii coDvicted uuder Section 376 (1) (1) IPC. In the altemafive, he also argues tliat the coiiviction aud sentence awarded to tlie appe11ant is too harsli and in the facte a-nd circiinistajices offlie case, ifthe appellajit is held giiilty oftiie ofrence under Section 376 (1) (1) TPC, his se5itence be reduced to the Biiniuiuni preferahty to tlie period already C^.Appeal No.402/2001 ^ undergone by huii, which conies ebout 7 years in this case as the appellaiit is uijailsiiice 20,4.2000, On the other hand, lean^ed counsel for the State opposes these argiinients. He suppoi'ts the judgiiient of conviction aiid order of sentence passed by ttie co-iirt below. I have heai'd leanied counsel for the parties at te'ogth and have also perused the reconis oftJlie Sessions Trial, So fai' as the age ofthe proseciitnx is concen^ed, the iBother of the prosecutrix has said rsothing ahout the age of the prosecutrix, However, it comes in the evidence of fat1~ter of the proseczitrix- Dube Singh (PW-6) that his deiighter was aged aboiit 8 years. Apa'rt froni fliis, ifwe 1ook into the contents of medicaT report dated 19.4.2000(Ex.P/7), it would appear that Rccording to fhe cliaical obses'vatioii itself, l^er age has heen detenBuied aa 8 years, Moreover, the coDte'ots of tlie i-eport woiitd atso show that evesi the secondaiy sexiial cliaraoter^ of the proseciitrix were not developed and auxilia-iy and p-ubic hairs-we?'R not prcsent aiid her brcasts weiie also not developed, Her TOtenial examination woiild also show tliat the characteristjcs of a tender giTi were present ui this case. Apart froiD. these 2 ^ets of evidence, no other evidence has been collected by the prosecution regai'riing the age of the prosecutsix. The father lias iiotbeen cross examined regardiug the age of his daughter. Even a single qiiestion lias not been asked iii the cross-exsniu^atiorj regan'ling the age of the prosecutrix. Likewise, the Doctor has also not been cross-exRniined 011 sziclii poiat. According to these two sets of evidence, it can he infeiTed fhat fhe prosecutiix was a girl aboiit 8 years of age and certaiiity, her age was u-oder 12 yeai's on the date of incideiit ancl the Sessions Coiisl has conisiiitted no en'or oflaw in recordiug such a fiiiding against the appellaiit. So far as the questiou of rape is concemed, the pi'osec-iitj-ix (PW-1) had deposed vide paragraplis 1 aiid 2 oflier evidence tliat on the fateful iiight, she was working in the mamage house of y Cr.Appeal No.402/2001 c.. Baijsiath Singh (PW-5). The appellaiit caiiie over there aj^d after takiiig her in his lap, he took her towards the Bad?/where he p~ut offher iinder-wear and thereafl'er he peDeti-aited his penis iiito her vagiiia, When slie tned to make a noise, the appe11aBt ran away froni flie place of occuiTence. She had also deposed that the penetration was painful, She liad fiii'ther deposed that thes-eafter, flie blood stsjled oozing froni her vagina snd her clothes got staiiied. S1ie had also deposed that she had gone to Police Sci^zayafa Kendra, Nagpur for lodging tlie report aud tliereafter, she was se-nt for niedical exaii'iinatioo to the Doctor, In tlie cross-exaDiination €->fthe pi'oseciitnx, the defence has tiied to biing on record that the relations belween 2 faniiUes were not coriial, diie to which, a false report has been lodged. The prosecutioii has also tned to hring soiiie omissions in. her statenient, which are pertaining to nimor discrepancies and in reply to that nothing could be brought o'a record against the testiinony of tlie prosecutrix, aiid her that part of deposition reniau-is intact, in which, she stated that the appellant had took her towards the Badi of the iniarriage hoiise and tliereafter, he comjiiitted sexiial intercourse against her by penetrating liiis penis iiito her vagina, This stoiy deposed hy the nrosecutrix is ^iipported by the evidence of 3iiother-Ma"ukunwar(PW-2), who deposed that after 4-5 days of the %aid inaniage finiction, she cou1d notice that the gM was liraping a^id she \^as a1so silent, on whidii, stie asked the girl^ who naiTated that cn the fatefal niglit, the eppellent t^ad teken her towards the wall aiid thereafter he coniiiiitted sexiiel intercour'se agaiiist her. She had also complained 3'egarding pain in her vagina to her isiother, The iiiother deposed that the girl had also told ber tiiat at tlie tiiBe of commission of sexisal inten^oiirse, the appellant had gagged her moiitb and 1ie bad ^1^o told her not to disclose tlie niatter to the mother, therefore, the girl l^ad disclosed the matter after 4-5 days oftlie iiicident. C^.Appeal No.402/2091 This evideiice of iiiotlier of the prosecutrix is fiirther supported by tlie evidence of father-Diibe SiBgh(PW-6), who had also deposed aTiBost sixnilar iiicident, which was deposed by the niother. Further tlie said evidence is coiToborafed hy the medical evideiice ofDr.(Mrs.) Seenia C1ianpiiria(PW-8), wlio has proved her 3:eport vide Ex,P/7 aiid had statecl tbat the hymen oftbe girl was ruptured and Uiere was a-ii injiiiy on the fouiTlhette and there were other suggestwe factors as are riisclosed in tlie eariier part of the judgsnent. The stattis of tJie victini of a rape case is eqiiwaleiit to the status of aii injured witness and the evidence of an -injured witiiess aiid the eviden<"e of a victini of sexual assault staB<3s 011 par with evidence of aji injured witiiess. Just as a witness who has sustaiiieii an injury is tlie best witness in the sense that 1ie is least likely to exctilpate the real offender, fhe evidence of a victiiii of e sex offender is eiititled to great weight, absence of coiToboration notwithstanding. Please see Shani^ida Byio^ijn&fecri fllrft&hdl Vs - S^te sf Qusarat^ A2K 19S3 SC 7S3 and State ®fTemdl Na&u-ys.-Rfwi @ Nehru 2006 (7] 364. It is a settled pnnciple of law that ovenBueh impoi'tsnce caiinot be giveii to niiiior discrepai^cies. Discrepaj3cies which do not go to the root ofthe iiiatter and shake the basic version ofthe witaesses, therefore, cannot be annexed with unrliie iliiportance. More so when the all iniportant "probahilities-fectoT^ echoes iu favour of the version sian'ated by the witaesses. Please see Bharwajda Sh^QinbhaiHirfibhcsi t?s, ^ffSufarat 19S3 g.C.75.3. In view of fhe above legal position ancl a1so iu view of the evideiice of the prosecutrix, 1'ser iBother, father and the lady Doctor, there appeai's to be no iDfinnity in the shove finding recorded by the Sessions Coro-t that the appellent 1iad comniitted sexual uilercourse against flie proseciitrix on the fateful night, by which, slie 3Xsceived uijuries on her private pa'rts. The version of Cr.Appea! No.402/2001 s /I fhe prosecutrix insp-ires confidence of tlns Court and it was sufficient to base the couviction. However, as stated above, tlie saine is diily coiToborated by iBedical evidence as slso t1ie evidence oy other witDesses, wliich are iu addition to it, therefore, the conviction ofthe appellant iroder Section 376 (1) (1) IPC cauhot be interfered and the sanie is maintairsed. So far as the quantuni of sentence is coDcenied, leanied couiisel for the appellaBt argiies that hotli tbe parties were residents of sanie village. He atso atgiies that the appellant wss ag^d about 20-22 years at the time of iucident and the girl was aged about 8 years. His submissioii i^ that the appellaBt is iii jail since tlie veiy first day of his an-est i.e. 20.4.'2000 and looldng to fhe long detentio'n withoiit any break and fiirther looking to the age of both the parties; his sentence may be rednced to ^ie niiasiTiiini. In t3ie matter of StGte of ChhatfSsesm'hVs. Serhe^ (^004} Q SCC 699, rape was coinmitted against a girl agecl ahout 8 years and tihie accused was aged about 18 yeajr^ on fiie f1ate of incident aiid he had also sei-ved about 6 % yeara imps'isonment conseque-ot to the sentence iiBposed ou him and was having a famity. Tn such circumstaiices, the Apex Court^vide.Pera 8 of the jiidgment, while allowiag th<p appesl ofthe State anrl setting asi'de the juxdgment of fhe Higli Court, redziced the sentence to 7 years RJ, Leamed counsel for fhe appellant submits that the saaie pruiciple iTiay be apptied m this case. The submission niade by lesiiied counsel fbr the appellaiif appears to be reasonable. In t3iis ca^e also^tlie appellant is contiBiiOiisly in jail smce 20,4.2000 aud he had imdergone mdre tlian 7 yeare till -now, therefore, looking to the age of the appellant and proseciitnx on tlie date ofisicident and further lookirig that hoth were residents of saine village and also the fact that the Rppe11ant is neither a previoiis convict uor he lias been shown to be the habifiial r CrAppeal N©.402/2001 l^ :^ r ' sunita offeiider, iii tiie opraion oftliis Conrt, the ends ofjustice would he served ifhis sentence is also reduced from 10 yeai~s RJ, to 7 }^ears R.I. In the result, the appeal is pailty allowed, The conviction of the appellaiit under Sectiori 376(1 )(f) IPC reconied by the tria1 Cou-x-t is maiiitained, However, the sentence imposed agauist tiie appellaut i,e. 10 years R.T, is reduced to 7 years R,I. T3ie seiitence oftlueofRs.500/- is iiiaintained, failiDg to pay fhe ajiiount of fine, tlie eppellant sha11 iindergo R.T, for 3 niontJis niore. The appeal is allowed to the extent indicateri ahove. Sd/- Sunil Kumar Sinha Judge '^ ^. i jiv| ij