y ^n^r^r'R^ricF WT 3?R?T sb^licb ^- Ipnl 3:5^' ^I^K?)^, y>Tl1'y4|<o, fs|<»')|<H^< ^W^ **<|cb"""""""""""""""""""""""""""-'^ 200 3^ff T^^ (4^^<^) '5^iTw5?i^T ^n^r BB: HO BLE DHlRENlDRA MISHRA. J. APPBLLANT fIN JAJL) R n VERSUS RESPQriDKNT 17-11-2007 Shri C.R. Sahu, Advoci Shri Neeraj Mehta, 2, This criinia.al appeal conviction aiid order of ilLikal, S]/o Maya Raai, aged about 52 ^ars, occupatioxi AgricultaraA labour, |/o vitlage Chirpou, P,S, Pulgaon, Distt Jurg (C.G) i|tate of, Chhattisgarh/ tlirough police ^ation- Pulgaon, Distt Diu'g (CG) |te, for the appeUaiit Paa^l La^yer for thc State, sentelLice Sessions Trial No. 226/200| Judge, Durg has convicted I.P,C. aad sentenced hiBi to| fuie of Rs. 1000/- aad m undergo RJ. for 6 laonths. 3. Case of fhe prosecuti< about 12 years was residujig matemal-grand-momer at report was lodged by flie studyiag ia Class 5dl, ha| matenial-graad-father is nc|i night. In the intervening ni^ht she was sleepiag ia her b^< coiQBiitted rape with her. Sjfa cr)i<if<n<ATi TnTR!rf ^f feT^t <F»i<^.i< i^^fRpT^TT^T is dtrected agamst tiie judgiiient of dated 2nd Uecember, 2005 passed in whereby leanied Additional Sessions Uie appellaiit under Section 376(1) of undergo R.I. for 7 years aad to pay a default of payment of liiie, to further ^n in brief is tliat Uie prosecutnx aged with her matenial-gratid-father aiid lie time of mcident. On 14-9-2004, a irosecutnx allegiag Uiereui tliat she is dt of the accused Sukal who is her good, He used to do obscene act in of 6th aiid 7th September, 2004 when d, Sukal took out her underwear and te was promsely bleeduig, Stie became '...\:..-': ! 1 ^iw^ ^NN- ^uii^, <i^'ij^ii4 —FS/59— 8/2007 —30,000. ^^fB^ ^n^r^ f^rii<=b TT^T an^r ^RW ^N^' 3^q- ^iqi<>><q, ?$Tn^4l(o, (sf^i^^ TTTTTT??nnT7HHnnKnHtt(tt((ttlt»lltIIIKIIJ(ltHtl W^T TWF (1i^^^?;T) ^kiiw <uf^d ^j^ Uireatetied uuconscious. He also aiiyone or else he shall kitl disclose this iiicident to aayoj of her niatemal-grand-moUie|i^ who in turo: uanuted the uici4 lodged me report of Ex. P-16|. to GoveniDient Hospital, Duj| examined her mid gave her| prosecutrix and flie accusec| seized duriiig uivestigation w| aad the report of fhe FSL is charge sheet was filed, 4. Durmg trial, fhe prosecj thereafter statenient of tlie a<| fhe evidence available iii pleaded ianocence aad false tlie iaipugned judgBient conj mentioned m para 1 ofUieju{ 5, Leanied counsel for of Uie appeUant is based on no other witoess mcludmg R|i of the prosecution and they | argued that Uiere was a don3| matenial-graiid-mother of tl^ used to coinplani that he doe| Ulfc cr)i^f<n4lrt *ii^i<nf '^\F€^<Rn^i< "^3TRP:T3TT^T not to disclose about fhe iacident to Itier by throtfthig, therefore, she did not lie. On retum of Raikunwar Bai, moUier e|i', she stated about fhe iacident to her jient to viUage Kotwar aad thereafter she She was sent for inedical exaniiaation |-g where Dr, G. Chakrawarty (P.W. 16) report of Ex. P-23. Underwear of tlie aiid vaginal sUdes of Uie prosecutrb^ las sent for examiaation to FSL, Raipur px. P-21. After completmg mvestigatiou, lution exainined 16 witoesses in all aiid tcused was recorded ia which he denied prosecution case agauist him and liaipMcation. However the trial Court by ^icted and sentenced tlie appellaat as ligment. appeMaat submits that fhe conviction Istatement oftlie prosecutrix P.W.14 as ajkunwar Bai have supported me case all have tumed hostile, It was further estic quaiTel betweeu the mother of tiie |e prosecutrix aiid tlie accused as she ^ not do aay work. They had ia fact gone tilie ^TT^T^r'f^ra' ^T8n'3TI^T'SFRT^' ^ '^ 3^cT •^t^l<y>><<, «>Tf1^<l<S, (ct0W^< J- ^l^dl sb^llcb^ ...C^..A.....^.:.....^5</0.€:..Wl. 200 3TT^iT T^TSF (^4f^<ysT) '^ITW^Tf^T ^IT^T conition learoled ap^eUant hAs betwben appeu^iit to lodge the report about basis of me report wliich was| alleged uicideut, aa offence) registered. There is no explauat 6. On fhe otlier haiid, the iiapugned judgment. 7. The convictiou ofthe prosecutrix. The prosecutrix tliat mere was a quarrel and for Uiis account, they ha^ lodge report agaiast tlie aiid fhereafter they proceeded where fhe poUce pbtaiB.ed her Saliu (P.W, 9) has conducted of Ex. P-12 and Ex. P-13 prosecutrix at the time of exanlin ui the exaBimation fhat assessed on fhe basis of who is Head Master, Govenim.^nt prosecutrix was studyiiig ia (^ of Ex, P-6 which has been Admission Register of Ex. P-7 tiie prosecutrix is 10m August), examiaation fhat the pros€cut(ix III and her admission was maqe <=bl^(<rt<fll ^1^<A ^f^f^st <f^l^l< ^r ^fRiT? 3?T^r domestic quarrei, however on the lodged after more thaa 8 days of the under Section 376 of I.P.C. was Aon for delay ui iodging tlie report, counsel for tiie State has supported is based on fhe stateinent of the admitted in para 6 ofher deposition Ramkiinwar Bai ancl Uie accused gone to Ko^ar with aii iatention to who counselect aiid retunied fhem [for lodging report iii fhe police station ^ignature ia the blaiik papers. Dr. A.K. ^ssification test aad proved tlie report he has opined Uiat the age of tlie [liaation was 15 years. He has adiaitted of 2-3 years is possible in me age test. P.W. 5 Chaitram Yqjdav, i^nt Primaiy School, ChiiTJoti where tlie );lass 5 has proved tlie birth certificate Igiven on fhe basis of enUy ia. tlie 4aid accordiiig to which, date ofbulh of 1991. He has admitted ui liis cross- was admitted in his school ia Class on tlie basis of traasfer certificate m aijid ;xanlin variatlon ossiticauon ^TT^T^RT VW^ WT 3TI^?T sr»«ilcr) ^ l»iar Y 75^T •^it^l<r'><<, y»Tfl'M<l<o, fsi^l^y Nl*<dl *NI«b—••••"————"""•"—••—•—•— ^p^ 200 3ni(?T ^ff^R (X^S^RSfS) ^l '^Rffw^rf??f 3?n^i which the date of birtli was n^entioned as 10th August, 1991 aiid he is not ui a position to state certiflcate, the date of birth of| August, 1991, Thus from Uie as to pn what basis ui tlie traiisfer |the prosecutrix was mentioned as 10m ^.bove evidence, it caii be safely iafen'ed tliat the age of fhe prosecutri^ was less fhaa 16 years at the tiBie of uicideut. 8, P.W. 14, fhe prosecuttix has deposed tliat 011 fhe date of incident, she was sleepiag wi4ih.er maternal-graad-niotlier when flie appellaat caaiie and forcibly s: moUier went to aiiother bed. fhereafter forcibly raped her. Mghtly aad advised to forget she narrated fhe uicident t| motiier aad lodged fhe report.l 9, In cross-examinatlon, appellaiit aiid motiier ofmat^ relationsliip and they were fi|< however he sent Uieni back tct obtauied her signatare on suggestiion of the defence thaj chi<if<rt4»i ^i+i<viT "^f f^<<) <Fyt^i< ^ 3?tRpT3?TT^T ^pt beside her aiid her materD.al-grand- lie accused tied her haad aad leg aiid Blood started ooziag froni her private part aiid she was drenched wjth blood, When she mformed aboiit tlie above uicident to her mateiTia|l-grarid-motlier, she took fhe same veiy bnd furtlier threatened her fhat if she ever dare to teU about fhe iitcident, she would kiil her. Thereafter, tlie. mother of her matenial-graad- tlie prosecutrix has adinitted fhat tlie nial-graiid-mofher did not have cordial ^quenfly engaged iii quaiTel. They had gone to fhe Kotwar to give iijiformation about tlie domestic quaiTel, home after advismg however they weut to police station for lodgii^g report where tlie police personnel blank papers. Slie has denied fhe she has lodged false report agaiast the ^\w^ ^NT^ ^uii^»<i^^i^(ic< —-FS/59— 8/2007 —30,000. .":"s"":s. ,; p '^, '^'^ ^..., ^TT^T^RT Rt'lJch iPRR" . c; ^ '" 3^' ^iWW^, y>T{1-M41<o, (s|<yI»l'H^< *<Wdl tbNlcb "••"——"——•—•"—•"—"—""•" -^ 200 9n^?r TRI^ (<ic<^<^) ^ ^«II^Rtlf^ci 3?TT^T sUie Chakra^artv filtlgl accused aad has also denied do aiiy wrong with her and gi^iit-faUier. 10. Dr. (Smt.)G. prosecutrix. She has depose^i was 12 years, her secondar^7) Uiere was no rajuiy on her vagiaa was admittuig one with the uitercourse, 11, The niotiier of the raat^ as P.W, 13. She has depose^ that the accused Sukalwas tlie poUce had recorded her she has been cross-examiadd diarv statement of Ex, P- prosecutrix was taken by hje miparting her education as t^e has niarried aaother maa,| prosecutrix complaiaed tlia^ when she enqutred the quarrelmg with her whercup^n tlie report. This witoess ui t1( has agam taken sumBiersauljt not nan'ate an^rUiia.g about cM^f<rt<fli ^iw^ ^ !k^<\ <r»i'^i< ^S 3fRPT3T1^T that her Biatenial-graiid-father did not is faplsely implicatmg her inatemal- (P.W. 16) has exaraiiied me tliat apparent age of tlie prosecutrix sexual characters were developed aiid tersou. Her hymen was absent aiid her ger witihio,at pam, She was accustonied .^d 115 tnial-graiid-mother has been exaiDiuied tliat the proseczitrix had iilformed her 'hasiag her. She has also admitted fhat |stateBient, After declaring her hostile, aild in which she has adniitted fhe in which she has stated that the ^r younger son-iii-law, fhe accused for er father Pardeshi has died aiidinotih.er When she retumed on Monday, the the appellaiit forcibly raped her aad from the appeUaD.t, he started she went with fhe prosecutrix to lodge irther cross-exanmiatiou bv the defence and has stated that tlie prosecutnx did jthe iacident aiid only stated tliat Sukal s&me ^ll^^ sN^T y^ull^, <M^i^|}c< —FS/59— 8/2007 —30,000. •^"^-.^.^., ^ V:. '"'-•• ; •''•^ ^ \::-y •^^.---^ '' ^-^ ^ww^, yrfl^KS, fst<?i>l^< (H'^Ho^^f^ NINdl tbNlcb"""""""""""""""""""""""""" """^ 200 ^?TTRW ((1?1^<^) ^n^r^ Vw^ WT ^W ^b^icb ^' f/ ^wi<3T ^f^a SFTT^T >n<id€ had chased her aiid police did she had gone to lodge the rcporf 12, After scrutiaizing th.e considering the fact tliat shej appeUaiit as her fatih.er is dead| second husbaad, the version| aUeged offence iiispires coid^ statement of Rajkuwar Bai whc| her to police statiou for lodguig| statenient wiU not render uiireliable aiid tliere is no reas^ inatemal-graiid-father with wh^ 13. In fhe result, the appeal| substauce aad fhe same is h^r cni^f<yi<4lTi +ii*i<nT^ 'ft^t' <r^^l< ^3fRFT3T^T Inot record her statement aad ia fact about the qiiarrelwiui fhe appellaiit. st^itement of tlie prosecutrix and also was residing ia fhe faniily of fhe aad mother has gone away wifh her given by the prosecutrix regarduig ^nlidence paiticularly looking to fhe |, ta fact, caine to her rescue and took Itlie report. Miiior discrepancies ui her total testiinony untrustwormy or I)H for her to falsely taiplicate her own )m she is residiag aiid studyiag, IprefeiTed by tlie appellaiit is withoiit disifaissed. Sd/- Dhirendra Mishra Judge ^11^<4 ^Ntq- y^uil^, <M'li^lH —FS/59— 8/2007 —30,000.