~1 %7 ‘ j ‘ mu“ U Singia Bench m Tm HIGH COURT 0'37 JUDICATURE AT BILASPUR (cc) é4’3 0f. 2005 ( Memorandum af CriAppeal U/s 374 (2) of Cr.p.ca ) / Crimin a1 Apgnal N633 : Trilochan Verma se Keju Ram Verma, aged about. 48 years, resiéente of Karnta. P.s. smga, District Raipur . Varsus whe state o£ Chhattisgarh, through the Distrlct Magmtrate mawV Ralpur (CG)- M Kr“ MEWRANDUM 6F CRIMEAL APPEAL ImDER SECTI6N374 S2) OF Cr.P.C. NwCTION ‘ ’ /" V ‘ smTENCE / J ‘1 \ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Am! No.643/2005 Trilpchan Val-ma Versus The Sh're of ChhaHisgarh HIGH COURT OF CHHATTISéARH AT BILASPUR Cr. App¢ol No.643/2005 Singie Bench: Hon'ble Shri Dilip Raosaheb Dcshmukh, J. Trilochan Verma Versus The S‘fufe of Chha'l'fisgarh Shri Sunil Sahu, Counse‘ for 111a appellant. 5hri Somesh Bajaj, Dy.G.A. for me Smfe. JUDGMENT (Delivered on i.“ day of March 2006) This appea! is direcfed againsf #he judgmenf da'l'ed 28*“ June 2005 delivered by Shri M.$.Kerkem, 2'“ Addi'rional Sessians Judge, Baloda Bazar, Disfric? Rnipur in sessions case No.16/2005 whereby ihe appeiionf was convicted under Section 376 (2)(f) of fhe I.P.C. and was sen'ienced fo undergo rigorous imprisonmeni' for 10 years and a fine of Rs.500/—, in defouli' 1‘0 undergo additional rigorous imprisonmeni' for 6 six monfhs. 2. Briefly sfafed the proserui’ion story is ihat on 7.11.2004 a? about 5.30 PM. ihe prosecu‘rrix, a girl aged about 11 years, was senf by her mofher Urmila Bai P.W.1 To The house of one Sifaram for returning 1'he grinding s'l'one. Affer half an hour, fhe proseau‘irix re‘rurned home crying and iold Urmila Bai P.W.1 tha‘r while she was in fhe lane near The house of Lachhan Vadav, fhe appellam caugh'r hold l of her, +ook her +0 +he Badi and removing her underwear commiited rape on her. ”J ‘ \ Ké 3. F.I.R. Ex.P.1 was lodged soon 1hereaffer of 10.00 P.M. o1 Police Station Simga situated of n disfance of 7 kilometers. One blue underwear haying semen like stains was seized from the prosecutrix on 8.11.2004 vide Ex.P.2. The prosecutrix was sent for medical examination to Dr. Farzana Begum P.W.6 on 8.11.2004 who, during internal examination, found congestion on the vulva and also found that hymen was ruptured with reddishness. There was swelling on the vagina and the examination was painful. In the opinion of Dr. Farzana Begum P.W.6 there was possibility of sexual intercoursevwith the prosecutrix but no definite opinion could be given. Vaginal slides were prepared and were s‘ent for chemical analysis. One brown coloured underwear with semen like stains was also seized from the appellant on 8.11.2004. On being sent to the Forensic Science Laboratory for chemical analysis, presence of semen and human spermatozoa was confirmed on the underwear of the prosecutrix and the appellant and also on the vaginal slides. After completion of investigation, the appellant was prosecuted under Section 376 (2) (f) of the I.P.C. 4. The appellant abjured the guilt. The prosecution examined as many as 10 witnesses. Noevidence in defence was led by the appellant. Learned trial Judge relying on the evidence led by the prosecution convicted and sentenced the appellant as aforesaid. 5. Shri Sunil Sahu, learned counsel for the appellant has argued that there is absolutely no evidence on record to prove that the prosecutrix was a woman under 12 years of age. It was contended that the seizure of Kotwari Birth Register vide Ex.P.3 showed that the date of birth of one Sangeeta, daughter of Pherha Ram on 13.2.1992 was recorded whereas the name of the prosecutrix was Anupa Suhu. Ossifioarion fesf for determining fhe age of fhe prosecufrix was no‘r conducmd. The en‘h'y rzhfing to dafe of birth of fhe prosecufrix was no? proved by 1he prosecm'ion. If was next argued Thai There was no evidence on record 'ro prove pmmfion by The appeuanf during the sexuai inmrcourse, if any, wi'rh fhe prosecufrix. Alfhough fhe prosecufrix had sfofed that fhe appeilardr removed her underwear and pushing her on 'the ground mounted on her and performed ‘Ba/mi” but in cross—examinafion the prosecutrix has admitted thaf by “Bakm‘” she meant fhaf ihe oppeliom' had removed her underwear. Thus, even as per fhe *estimony of 'rhe prosecu'h'ix i'r was not estabiished that penetration had taken piace. Learned counsel argued that the testimony of Sitaram P.W.5 and Koiiash Goswami P.W.10 aiso goes to show that mother of the prosecutrix had not toid these witnesses that the appellant had committed sexual intercourse with her daughter. On these premises. learned counset for the appellant has submitted that the prosecution has utterly failed to prove the guilt of the appellant under Section 376 (Z) (f) of the I.P.C. Reliance was planed on $Iredl Auns Muslim Vs, State of &haffigarh reported in B 2005(2) C.6.L.J'. 79 and Raw' Mahesmri V. State of MP. and ofhers reported in 2005 (IV) MANISA 148 (M.P.). In Ravi Maheshwari’s case (wpra), the prosecutrix had admitted that she was tutored before giving evidence in court. The prosecution had neither produced the report of the chemical examination of the under-garments of the accused and prosecutrix nor examined materiai witness i.e. the father of the prosecutrix who was alleged to have seen the incident. The Prosecutrix was deciared hostiie. On these grounds, the appellant was acquitted after giving him the benefit of doubt. In the case of Suresh (supra). the testimony of the prosecutrix was not found to be reiiable being @% ,g’ fuwl-ed‘ No injury was found on her body. There was delay of fwo mon'rhs in arresfing fhc appellant. No safisfacfory explnnn‘rion was found for nonexaminnfion of fhe invesfign'l’ing officer. 0n fhese grounds, The appellnn'l’ was acquiffad of 1he charge under Section 376 6t 511 of The I.P.C. ‘x, . 6. On the o1'her hand, Shri Bqjqj, learned Dy. Govt. Advocate has argued in support of the impugned judgment and contended that the testimony of Dr. Farzuna Begum clearly proved that the appellant had committed sexual intercourse with the prosecutrix. It was also contended that the prosecutrix is a child witness aged about 11 years and the trial Judge had noted her demeanour that she had started crying and would not depose any further after she said that the appellant had done “Bakm’” with her. Since her testimony was wholly unrebutted in cross-examination and also found support from the report of F.S.L., in the above facts and circumstances, it could be presumed that the appellant had committed forceful sexual intercourse with the prosecutrix. 7. Having heard the rival contentions, I have perused the record. For constituting an offence of rape under section 376 (2)(f), it is essential for the prosecution to establish beyond doubt that the age of the prosecutrix on the date of occurrence was less than 12 years and that penetration had taken place during the sexual act by the appellant with the prosecutrix. So far as the age of the prosecutrix is concerned, Urmila Bai P.W.1‘mother of the prosecutrix stated in para 7 that she could not tell the date of birth of the prosecutrix. She also did not know whether birth of the prosecutrix was entered in‘ the Kotwari Birth Register or not. As regards the age of her elder fa W t \L " l :4!5( :45 l } 60; “(1" daughter Anim, at first, she said +1101 her age was 13 years bu‘f in fhe next brenfh, she said mat Hue age of Ani'ra was 15 - 16 years. The prosecufrix P.W.2, on being asked, was also unable To sm+e her age. Inspector Mukfi Tirki P.W.9 had proved seizure memo Ex.P.3 whereby ‘ fhe Kofwari Regisfer of Bir'rh was seized. However, a perusal of fhe seizure memo does no'r show that lhe dale of birfh of ‘rhe prosecufrix was regisfered fhereunder. If only shows 'l'haf fhe date of birth of one Sangee‘l’a, daugh'rer of Pherha kam Sahu was registered as on 13.2.1992. Urmila Bai P.W.1 in her cross-examination has no'l' stated 1ha'r she had a daughter with the name Sangeeta. She only stated in para 7 that she had three children namely Anita, Anupa and one son. Thus, seizure memo Ex.P.3 does not help the prosecution in any manner in determining the age of the prosecutrix. Thus, there is no cogent evidence on record to show that the prosecutrix was a woman under 12 years of age. u, 8. As regards the evidence led by the prosecution to prove the commission of rape by the appellant on the prosecutrix, the testimony of the prosecutrix is wholly unrebutted. She deposed that the appellant had pushed her on the ground in the Bad!" of Firtu and after removing her underwear mounted an her and committed “Ea/mi on her. Thereafter, the appellant gave her two rupees and left her. She returned home and narrated the incident to her mother. At this juncture, the witness started crying before the, Court and did not depose any further. Looking to the dememour of the witness, no further question was asked by the prosecution. In cross-examination in answer to the only question asked by the defence, the prosecutrix has stated that by “Ba/mi” she meant the act of the appellant in removing 'her underwear. No further question was asked M \: nl l 3 r n gaeww 55m M r x a. r -9— by the defame to the prosecufrix. The twimony of fhe prosecutrix is Thus wholly unrébuffed in cross-examina'rion. There is nofhing whafsoever fo indicate that the prasecutrix had falsely implicated the appellant. The categorical statement of the proseeutrix that the appellant pushed her on the ground in the "Rodi” removed her underwear and mounting himself upon her committed “Ba/mi” on her would go to show that the accused appellant had committed sexual intercourse with the prosecutrix. 9. The testimony of the prosecutrix is fully corroborated by Dr. Farzana Begum P.W.6 who found, on internal examination of the prosecutrix on 8.11.2004, that her hymen was ruptured with congestion and reddishness. Swelling was present in the vagina and the prosecutrix was complaining of pain. The medical evidence read with wholly unrebutted testimony of the prosecutrix clearly proves the act of penetration by the appellant while committing sexual intercourse with the prosecutrix. Inspector Mukti Tirki P.W.9 has proved the seizure of the Chaddi worn by the prosecutrix vide Ex.P.2 which is dated 8.11.2004 on 11.00 A.M. i.e. shortly after the F.I.R. was lodged. Dr. Farzana Begum P.W.6‘has proved that she had pmpared vaginal slides of the prosecutrix and advised chemical examination. Inspector Tirki P.W.9 has also proved that the underwear of the appellant was also seized vide Ex.P.4 dated 8.11.2004. The prosecution has tendered the report of the F.5.L. Ex.P.15 in evidence which clearly shows that the presence of semen md human spermatozoa on the underwear of the prosecutrix as also of the appellant and the vaginal slides was confirmed. \; l ‘4\ 10. Shumm P.W.5 has also shied *hnf Urmila Bui came searching for him and fo'd her fhnf *he appellanf had done “Dhamakawwi'fh her daughfer whereupon ‘rhe viHagers had called Trilochnn who had admifred doing “Bum Kaam’f In cross-examinafion para 6 he has admif'red fhaf Urmila Bai had 'rold fha-I- 'rhe appellant had done “Chbedkanl’ with her daughfer and ‘rhe appellanf had also admi‘Hed fhis fact Thus, +he 1esfimony of SiTaram P.W.5 also corroborates +he fesfimony of Urmila Boi P.W.1. Kailada P.W.10, Secrefary of the Gram Panchaya? Karma has also slafed fha'r Urmila Bai fold him +haf fhe appellant was doing some lndecen't acl' wi1’h her dmgh'ter in 'l'he “Byurd' bu'r did no'l' Tell him as To wha‘l' indecen't ac‘l' was aommi‘l'fed by 'l'he appellant Heavy reliance was placed by fhe learned counsel for the appellan‘r on fhe fesfimony of Sitaram P.W.5 and Kailash Goswami P.W.10 to support the arguments that the testimony of prosecutrlx is not reliable. This argument has to be considered only to be rejected. Hg 11. The evidence led by the prosecution is very natural and inspires confidence. The testimony of the prosecutrix is wholly reliable since it is completely unrebutted in cross~examination and there is nothing to show that she had any reason to falsely implicate the appellant. Her testimony is fully corroborated by medical evidence of Dr.Farzana Begum and also by the report of F.5.L. Ex.P.15. The case law cited by the learned counsel for the appellant is clearly distinguishable and does not help the appellant in any mariner. 12. Thus, the evidence led by the prosecution clearly establidaes the guilt of the appellant for committing rope on the prosecutrix‘ Since the prosecution has failed to establish that the wx was \, ‘4? ‘1. a mum hnder 12 yam-s of age, thacmvicfim cf 1h: wlhrt undzr ‘ Section 376(2Xf) cannot be sustained. Having considared the evidence led by the prowrufion in ifs entirety, in my considend opinion, fhe guil‘r of ‘rhe appeilnn‘t under Secfion 376 (1) of the I.P.C. has been ambushed; beyond reasonable doubt so far as me semnoe awdgd by me ma: Com is Md, baking n m. manner in which me wpellanf, qed nbuu't 48 years, commimdmpe on a minor- child, if does no? cull for any interference. In u tradition bound and conserva‘l'ive socie'l'y, more pariiwinrly in e rural urea, ‘rhe shame of sexual assaul'r on a girl of about 11 years moi he losf sight of. The Couris have to display a greatersense ofJesponsibilitya-id to be more sensitive while dealing with charges of sexual «snilt on women, particularly of tender age and children. For such heinous offences, such a sentence has to be awarded which would discourage wolves in the society who are on the prowl for easy pmy, more so when the victim of crime is a minor child. 14. In the result, the appeal is partly allowed. Conviction of the , appellant under Section 376(f) of the I.P.C. is altered aid instead the appellam is canvimd under swim 376 (1) of iho Lac. The ammo awarded by iba ma: Com is maiminod. [A / /iB‘a‘2wo / \