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2009 DIGILAW 215 (CHH)

Gopal v. State of Chhattisgarh

2009-08-12

T.P.SHARMA

body2009
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 30.3.2007 passed by the 14th Additional Sessions Judge, Raipur, in Sessions Trial No.28/2007 whereby and whereunder learned 14th Additional Sessions Judge after holding the appellant guilty for the offence punishable under Section 376 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months. 2. Judgment of conviction and order of sentence is challenged on the ground that without there being proof of age of the prosecutrix, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that undeveloped brain, the prosecutrix aged about 17 years on the date of commission of offence i.e. 11.11.2006 was present at about 1 p.m. in her house at Deogaon, Police Station Kharora, District Raipur. Accused came in the house of the prosecutrix and committed sexual intercourse with her while she was alone in her house. Second day she narrated the incident to her mother who lodged the F.I.R. vide Ex.P/24. She was sent for medical examination vide Ex.P/5 to Community Health Centre, Tilda where she has not cooperated for medical examination. Her age and physical features were recorded vide Ex.P/6 and she was sent to Medical College, Raipur where she was examined by Anita Yadu (PW-4) and noticed 28 teethes over her both the jaws. Hymen admits one finger. Hyman was patulous but no fresh injury was found. Vaginal was also patulous. The doctor has opined that intercourse might have been committed upon her. Her clothes containing like sperm stand were examined and sealed. Her clothes were seized vide Ex.P/1. Underwear of the accused was seized vide Ex.P/2. He was sent for medical examination and was examined by Dr.S.R.Banjare (PW-3) vide Ex.P/3 and was found capable for committing sexual intercourse. Slides of vaginal smear were taken and sealed. Slides and clothes were recovered vide Ex.P/6. For confirmation of the age of the prosecutrix, ossification test was conducted and her age was ascertained between 13 to 18 years vide Ex.P/8. Spot map was prepared vide Ex.P/18. Articles were sent for chemical analysis and presence of human sperm was confirmed over slides of the prosecutrix and underwear of the accused vide Ex.P/20. For confirmation of the age of the prosecutrix, ossification test was conducted and her age was ascertained between 13 to 18 years vide Ex.P/8. Spot map was prepared vide Ex.P/18. Articles were sent for chemical analysis and presence of human sperm was confirmed over slides of the prosecutrix and underwear of the accused vide Ex.P/20. Spot map was prepared by patwari vide Ex.P/21. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short `Code') and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur from where learned 14th Additional Sessions Judge, Raipur received the same on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 14 witnesses. Statement of the accused was recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocency and false implication is pleaded and specific defence has been taken by the appellant that one person Dilip used to go to the house of the prosecutrix and mother of the prosecutrix was suspecting that her daughter is pregnant. Accused Gopal is neighbour of the prosecutrix and he also used to go to the house of the prosecutrix and with a view to save her family from infamy, mother of the prosecutrix has falsely implicated the appellant in the crime in question. 6. Learned 14th Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the appellant as aforementioned. 7. I have heard Shri N.K.Chaterjee, counsel for the appellant and Shri Rajendra Tripathi, Panel lawyer for the State/respondent and perused the judgment impugned and record of the court below. 8. Learned counsel for the appellant argued that the prosecution was under obligation to prove the age of the prosecutrix below 16 years, status of undeveloped brain and absence of consent, but the prosecution has utterly failed to prove the aforesaid essential ingredients of the offence of sexual intercourse, therefore, conviction and sentence of the appellant is not sustainable under the law. Learned counsel further argued that the prosecutrix (PW-1) has deposed in para- 7 that other persons also used to commit intercourse with her and in para-9 she has specifically admitted that at the time of commission of such offence, she has not objected. Even after commission of offence, she went for play and second day when her mother asked forcefully and assaulted, then she told the incident. Learned counsel also argued that the aforesaid act shows the clear case of consent. Age of the prosecutrix is ascertained by the Court as 17 years. Her ossification test reveals the age between 13 to 18 years and if without any addition of two years in upper limit of the age is considered, then same is more than 16 years i.e. 18 years. She is accustomed to sexual intercourse and has admitted relation with other persons clearly falsifies story of the prosecution and is sufficient to prove the innocency of the appellant. 9. On the other hand, learned counsel for the State/respondent supported the judgment and argued that though the prosecution has not adduced any evidence of the age of the prosecutrix, but the prosecution has proved that the prosecutrix was not able to understand the normal things and she was woman of undeveloped brain, therefore, no question of consent arises. Learned counsel further argued that the statement of the prosecutrix is sufficient for drawing inference that the accused is a person who has committed sexual intercourse with her. 10. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties. As regards the question of age of the prosecutrix is concerned, the Court itself has ascertained the age as 17 years. Ossification test report reveals the age between 13 to 18. 11. In the matter of Jaya Mala v. Home Secretary, Government of Jammu & Kashmir and others1, the Apex Court has held that there may be variation of two years on either side in the age ascertained by ossification test. The prosecution has not adduced any other evidence in support of age of the prosecutrix. Therefore, only in the light of ossification test and possible variation, it is difficult to hold that at the time of incident, age of the victim/prosecutrix was below 16 years. 12. The prosecution has not adduced any other evidence in support of age of the prosecutrix. Therefore, only in the light of ossification test and possible variation, it is difficult to hold that at the time of incident, age of the victim/prosecutrix was below 16 years. 12. As regards the commission of sexual intercourse with a woman of undeveloped brain is concerned and complicity of the accused/appellant in the crime in question, learned 14th Additional Sessions Judge has examined the prosecutrix (PW-1) and has opined that the prosecutrix is below the normal understanding. Detail evidence reveals also the same facts in some places. She has not answered the questions. The prosecutrix (PW-1) has deposed in her evidence that at time of commission of offence she was alone present in her house. Her brother, sister and mother were not present. The accused came to her house and in verandah he has committed intercourse with her and after completion of sexual intercourse, the accused fled away from her house and she went to her maternal aunt's house, but she has not narrated the incident to her material aunt and finally she narrated the incident to her mother. Durpati (PW-6), mother of the prosecutrix, has deposed in her evidence that on the date of incident she was not present in her house and she came after selling vegetables. On second day morning, her sister-in-law (bhabhi) told her that the accused has committed sexual intercourse by the prosecutrix. Then she asked to her daughter and also told the incident to Kotwar and Sarpanch and lastly lodged the F.I.R. Munni Bai (PW- 8), wife of brother of mother of the prosecutrix, has deposed that on the date of incident at about 4 p.m. the prosecutrix came to her house and told to her that the accused has committed intercourse wit her (eksj lax dfjl gs). She has also deposed that the prosecutrix is woman of low developed brain and she has told to her that the accused has committed sexual intercourse with her and then she narrated the incident to mother of the prosecutrix mother on the second day. Shrawan Kumari (PW-9) has also supported the statement of Munni Bai (PW- 8). Sushma Ahaluwalia (PW-7) has deposed that on 16.11.2006 she has examined the prosecution but for internal examination the prosecutrix has not cooperated, then she has preferred the prosecutrix to Medical College, Raipur vide Ex.P/7. Shrawan Kumari (PW-9) has also supported the statement of Munni Bai (PW- 8). Sushma Ahaluwalia (PW-7) has deposed that on 16.11.2006 she has examined the prosecution but for internal examination the prosecutrix has not cooperated, then she has preferred the prosecutrix to Medical College, Raipur vide Ex.P/7. Anita Yadu (PW-4) has deposed in her evidence that on 17.11.2006 at about 4.30 p.m. she has examined the prosecutrix and found her hymen admits one finger and her hymen & vaginal were patulous. She has taken three slides of vaginal smear and sealed. She has examined salwar of the prosecutrix containing sperm like stand and opined that intercourse might have been committed upon her. In her cross-examination she has admitted that no fresh injury was found and hymen and vaginal become patulous after repeated intercourse. Slides and clothes were sent for medical analysis and presence of sperm was confirmed vide Ex.P/22 over salwar and slides of the prosecutrix and underwear of the appellant. 13. The prosecutrix is only substantial witness in this case. Her detail statement and statement of the other witnesses reveals that the prosecutrix is a woman of undeveloped brain and of below understanding. In para-7 of her cross-examination, firstly she has admitted that another boy has also committed intercourse with her but when it was specifically asked, then she has stated that other boy has committed intercourse with other girl, but she has admitted that other boy has committed intercourse with other girl in her house and she has seen the commission of sexual intercourse by other boy with other girl. Again she has admitted that other boy has committed two times intercourse with her. She has deposed that after removing her underwear, the accused committed sexual intercourse with her, at that time she has not done anything but subsequently she told that she cried but he has not stopped to the accused and after commission of incident, she went for play and on second day when her mother asked, then she narrated the incident. Her detail statement reveals she is not a girl of normal understanding. Suggestion given by the accused in para-9 of her cross-examination which is suggestive of the fact that the prosecutrix was consenting party and she has not opposed the commission of intercourse. She has admitted that another person has also committed intercourse with her two times. Her detail statement reveals she is not a girl of normal understanding. Suggestion given by the accused in para-9 of her cross-examination which is suggestive of the fact that the prosecutrix was consenting party and she has not opposed the commission of intercourse. She has admitted that another person has also committed intercourse with her two times. Munni Bai (PW-7), maternal aunt of the prosecutrix and Shrawan Kumari (PW- 9) have corroborated the version of the prosecutrix up to the extent that she went to the house of Munni where she told Munni Bai and then they decided to inform the incident on the second day to the mother of the prosecutrix and incident was narrated to the mother of the prosecutrix and after informing Kotwar and Sarpanch, she has lodged the report. The prosecutrix has admitted that another boy has committed sexual intercourse with her but she has not denied that the present the accused has not committed sexual intercourse with her. On the other hand, she has specifically deposed that the appellant has committed intercourse with her but she has not resisted. The statements of the witnesses are sufficient for drawing inference that the prosecutrix was not a girl of normal understanding. Commission of sexual intercourse has been supported by the medical evidence, Anita Yadu (PW-4), her clothes and slides and also sent for medical analysis and presence of sperm was also confirmed vide Ex.P/20 the commission of sexual intercourse with her. 14. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. While dealing with the question of corroboration, the Apex Court in the matter of State of Maharashtra v. Chandraprakash Kewalchand Jain2 has held that the prosecutrix cannot be put on a par with an accomplice. She is in fact a victim of the crime. Para 16 of the said judgment reads as under:- "A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence......" 15. In the present case, the statement of the prosecutrix is supported by the medical evidence and evidence of other witnesses sufficient for drawing inference that the present accused is a person who has committed sexual intercourse with her and taking into consideration the factum of undeveloped brain and woman not of normal understanding, I do not find any case of consent. 16. After appreciating the evidence available on record, the Court below has convicted and sentenced the appellant as aforementioned. 16. After appreciating the evidence available on record, the Court below has convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on credible and clinching evidence inspires confidence and is sustainable under the law. 17. As regards the question of sentence is concerned, considering the circumstances that the prosecutrix was not able to understand her wrong or right, the Court below has sentenced the appellant rigorous imprisonment for 10 years and fine of Rs.500/-. Learned 14th Additional Sessions Judge has rightly sentenced the appellant. The appellant does not deserve any sympathy. 18. For the foregoing reasons, I do not find any illegality or infirmity in the judgment impugned. The appeal being devoid of merits is liable to be dismissed and is accordingly dismissed.