IS_2HE_gr^ G_Oaai_OFJ.UDICAI;imS_|£._BIj;^PE@.,CGHjI^ 6Tj CRIMISAL_APPSA2., -So. /,_/_OT_2QQ2 APP3LLAOT ACCU3ED Raa Nihora alias Mogo Yadav, soa of panchu Tadav, aged about. 26 years, occupa'fcionsAgriculture, resid^nt of village -Jiiolna, Police Outpost: Garo, Police Thana: ITandghat, Dlst; Durg ( Ghhatfcisgarh). "s^-^.l:..-^ R33POWEIIT Versus The State of Ghhattisgarh; Through: Station House Officer. Police Station: Nandghat Dist; Durg (Chhattisgarh). CgIMIgAL.APPSdL U/3 37tl- of.Cr.P.C: —.-_A.__.____ _ _ i, HI6H COURT OF CHHATTIS6ARH AT BILASPUR CrLminal Appeal No. 699/2002 Vs. -?% "^.-f Shri Abhay Tiwari, leamed counsel for Shri J.&.Bajpai, Govr. Advocate/Additional the State. appel!ant. Public Pr'osecutor >; (&etivered on 06-01-2006) This appeal is directed against the judgment dated 27-06-2002,' passed by Shri H.L.War-de, Second Additional Sessions Judge, (F.T.C.), Bemetara, District- &urg in', Sessions Case. No.422/2001 whersby •t+ie appelicint was convicted under Section-450 & 376 (1) of the I.P.C. and was sentenced to rigorous imprisonment for 3 years cnd fine o.f Rs. 1500/- in defau!t of payment of fine to undergo additional rigorous imprisonment for 3 months under Section-450 of the I.P.C. and to rigorous imprisonment for 7 years and a fine of Rs. 3500/- in default of payment of fine to undergo additional rlgorous imprisonment for 6 months under Section-376 (1) of the I.P.C. Briefiy stoted the prosecution story is that Shyama Bai aged about 30 years is the daughter of Feru Ram PW-2. Although Shyama Bai had grown in age yet her mental and physical development was deficient. As the learned trial Judgs has observed while recording her evidence that her height was oniy 3 & i feet end she was stammering in her speech. On 27-07-2001 when Feru Ram returned home he found that Shyama Bai who was ali alone in the house was crying and her underwea" and frock were blood stained and there was some blood on her thjghs also. Shyama Bai toid him that whi'e she was alone, the accused appellant Ram Nihora came inside the house. lifted her, took her inside the Kothar and removing her underwear committed rape on her. First Information Report was iodged promptly by Feru ftam Yadav in Police Station-Nandghat(situated about 22 kilometers north from tne phce of occurrence) on 27-07-2001 at 07.10 P.M. Uoon medica! examination of Shyama Bai Dr. ftaijshri Deodhar PW-7 found that ciotted blooo was present on both folds of groitus and thighs. Hymen was perforated. One finger could be inserted with difficutt/ in tha vagina. The underwear and frock worn by Shyama bai as well cs underwear and towel be'onging to the accused-appeliont were seized during investigation. The report of Forensic Science Laboratory, toipur Ex.P-14 confirmsd presence of blood, semen and spermatozoa in the Frock and underwear seized from the prosecutrix. After completion of investigation, the appellant was prosecuted for the offences punishable .5-" %3 •: ••SSSi-^S:®^^^.^^'- :?!';;^:*^^ under Section-450 <& 376 (1) of the I.P.C. The accused- oppeliant abjured the guilt, pleaded innocence and examined Jatiram bW-1 in defence. 3. The Trial Court examined as many as 11 witnesses in support of the prosecution story. Reiying upon the unrebutted testimony of Shyama Bni which was du!y corroborated by the medicai evidence and the report of Forensic Science Laboratory, the trial Court convicted the qspetiant under Section-450 & 376(1) of the I.P.C. and sentenced him as aforesaid. 4. Leamed counsel for the appellant has assailed the conviction of the appellant under Sectiop-450 & 376(1) of the I.P.C. on ths 9round that the prosecutrix was aged 30 years and the appellant was much lesser in age, therefore, it would be improbable that the oppeilant had committed rape on the prosecutrix. Referring to Para-9 of the testimony of the prosecutrix, leamed counsel for the appellont argued that the possibility' of consent of the prosecutrix in the sexuat intercourse could not be ruled out. The fact that the prosecutrix did not raise any hue or cry during the occur'rence was also indicative of her consent in the sexual act. Referring to para-14 of the testimony of Dr. Rajshri beodhar PW-7 it was also argued that the medical evidence did not support the story of ro.pe on 27-07-2001 at 9 A.M. On the other hand, Shri J.b.Bajpai, ©ovt.Advocate/Additional Public Prosecutor has supported the impugned judgment. ^^" ^:.i^^^s^^^ 'i-F&g •sas; s^y- The demeanor of the prosecutrix was noted by the Learned Trial Judge during her evidence which clearly showed that althou9h she had grown in aqe but her physical and mental deyelopment was not normal. Even at the age of 30 years, the prosecutrix shall wore a frock, and her height being only 3 i feet. Feru Ram Yadav PW- 2 father of the applicant has also deposed in para-5 that since physical and mental development of prosecutrix Shyama Bai was not normal he did not get her married. &r. Rajshri beodhar PW-7 has also testified that on examination she found that the mentat development of Shyama bai had not taken place. Thus, it clearly emerges that the prosecutrix lacked normal mental and physical growth. It is settled law that conviction for the offences punishable under Section-450 & 376 (1) of the I.P.C. can be based on the sole testimony of the prosecutrix if it inspires confidence, stands unrebutted in cross- examination and is dully supported by medical evidence. No further corroboration would be required if the above conditions are satisfied. Viewed from this legal perspective, the testimony of Shyama Bai is wholly unrebutted. Nothing has been elicited in cross- examination which would render her testimony in para-3 that the cccused appellant entered the house, lifted her and took her to Kothar and thereafter the accused- appellant remoyed her underwear and committed rape on her, unworthy of credit. So far as the statement of the prosecutrix that she did not prevent the accused ,/;£l^ ^ .,, ..•.•:v^^'^^3^\ ..S-'.S.^M^^"'' '"rrt"^ appellant from committing rape is concerned, it is satisfactorily explained by the fact that the mental and physical growth of the prosecutrix was not normal. The testimony of prosecutrix is duly corroborated by '. ftajshri Deodhar PW-7 who found presence of clotted blood at both folds of groitus and thighs and also found that hymen was perforated. The argument that the appellant could not commit rape since he was much lesser in age than the prosecutrix is unacceptable. The evidence clearly shows that the accused-appellant took advanta9e of the prosecutrix being alone in the house and ofter entering the house committed rape on her. :g;-S.S- 7. Having considered the evidence led by the prosecution in its entirety and also the rival submissions, I am of the considered opinion that the Trial Court has rightly convicted the appellant under Section-450 & 376 (1) of the I.P.C. upon legat, reliable and unimpeachable evidence. So far as the sentence awarded to the appelleuit is concerned it also does not cali for any interference. The appeal is devoid of merit and is dismissed. Sd)- Dilip Raosaheb Deshmukh Judge rU^Ar-JE