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2012 DIGILAW 23 (CHH)

GAJENDRA SINGH THAKUR v. STATE OF CHHATTISGARH

2012-01-13

PRITINKER DIWAKER

body2012
JUDGMENT Pritinker Diwaker, J. [1] This appeal has been preferred against the judgment and order dated 24-5-2007 passed by Sessions Judge, Kanker (North Bastar), in Sessions Trial No. 21/2006 holding the accused/appellant guilty under Section 376 IPC and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 10,000/-, in default of payment of fine to further undergo RI for six months. [2] Case of the prosecution in short is that on 8-6-2006 at about 12.40 p.m. FIR Ex. P-1 was lodged by the prosecutrix (PW-1) - a minor girl aged about 13 years at the relevant time alleging that as on that day she was having headache, had gone to Primary Health Centre. Narharpur where the accused /appellant was posted as doctor, along with her younger sister Urvashi (PW-2) for treatment. After examining the prosecutrix and her sister, the accused/appellant asked them to come to his house. At about 11 a.m. when she and her sister went to his house, accused/appellant made her sister Urvashi sit in the other room and took the prosecutrix to his bed room, lie her on the bed and then examined her eyes with torch. Thereafter, by upturning her clothes, he pressed and sucked her breasts, removed her skirt, moved his hand over her private part, sucked it with mouth, set her legs apart and inserted his private part into that of her. When her younger sister came there, the accused/appellant scolded and drove her back. Thereafter, the prosecutrix felt giddiness and then her sister sprinkled water on her and brought her home where she narrated the incident to her parents and then the matter was reported to the police. Based on this report, offence under Section 376(B) IPC was registered against the accused /appellant and after investigation challan was filed by the police on 25-6-2006 for the offences under Sections 376(B), 354 and 511 IPC. [3] So as to hold the accused /appellant guilty, prosecution has examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, one Prabha Mandavi (DW-1) has been examined by the defence in support of its case. However, the Court below framed the charge under Section 376 IPC against the accused/appellant. This apart, one Prabha Mandavi (DW-1) has been examined by the defence in support of its case. However, the Court below framed the charge under Section 376 IPC against the accused/appellant. [4] After hearing the parties, the trial Court convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. Hence, this appeal. [5] Counsel for the appellant submits that there is no evidence on record to show that the prosecutrix was subjected to rape by the accused/appellant and that even the medical report Ex. P-11 does not support the case of the prosecution according to which no injury was found on the person of the prosecutrix including her private part. He submits that the doctor who medically examined the prosecutrix had advised to wait for the FSL report but no such report has been exhibited by the prosecution. According to him, on query being made to the doctor vide Ex. P-12, report Ex. P-13 has been submitted by her stating that no definite opinion regarding sexual intercourse with the prosecutrix could be given. He submits that even the evidence of the prosecutrix is not conclusive to the effect that penetration was done by the accused/appellant and in these circumstances at best the appellant can be convicted under Section 376/511 IPC for which he has already suffered about five years and seven months of imprisonment. He further submits that in her statement the prosecutrix has nowhere stated that the accused/appellant did full penetration to her. In support of his submissions, he placed reliance on the decision of Delhi High Court in the matter of Jagdish Prasad Sharma v. State, 1995 CrLJ 2501 and the decision of Rajsthan High Court in the matter of Mahesh Kumar and another v. State of Rajasthan, 1998 CrLJ 1597. He submits that the FIR and the statement of the prosecutrix recorded under Section 161 Cr. P. C. do not tally and likewise the statement of sister of the prosecutrix namely Urvashi (PW-2) is highly unreliable. He submits that evidence of the prosecutrix and her sister reflects that only an attempt of sexual intercourse was made by the appellant and no penetration at all took place. He further submits that statement of the prosecutrix only goes to show that the accused/ appellant mounted on her and in such a situation no penetration could be possible. He submits that evidence of the prosecutrix and her sister reflects that only an attempt of sexual intercourse was made by the appellant and no penetration at all took place. He further submits that statement of the prosecutrix only goes to show that the accused/ appellant mounted on her and in such a situation no penetration could be possible. He further submits that even the appellant did not suffer any injury though he was medically examined within 24 hours of the incident which shows that he has not committed any offence. [6] On the other hand counsel for the respondent/State supports the judgment impugned and submits that in view of the unambiguous statement of the prosecutrix, conviction of the accused /appellant under Section 376 IPC is just and proper. [7] Heard counsel for the parties and perused the material available on record. [8] Prosecutrix (PW-1) has stated in her evidence that at that time she was studying in class VI and that her date of birth is 17-11-1993. She has stated that on the date of incident as she was suffering from acute headache and her sister Urvashi (PW-2) from cold and cough, they had gone for medical treatment to Government Hospital where the present appellant was posted as doctor. After examining her in the hospital as the accused/appellant called the prosecutrix to his residence for further check up, she as well as her sister went there at about 11 a.m. The accused/appellant made the sister of the prosecutrix sit in some other room whereas this witness was taken by him to his bed room and made to lie on the bed. Thereafter, he examined her eyes with the help of torch and then after upturning her clothes he pressed her breasts with his hand and also sucked the same with mouth. He then removed the skirt which she was wearing at the relevant time, sucked her private part and after setting her legs apart inserted his private part into that of her. Meanwhile, her younger sister came there and told that she would inform the incident to her father, on which the accused/ appellant got up. According to this witness, as she was feeling giddiness, her sister took her out and sprinkled water on her and then after reaching home she narrated the incident to her mother. Thereafter, the matter was reported to the police vide Ex. According to this witness, as she was feeling giddiness, her sister took her out and sprinkled water on her and then after reaching home she narrated the incident to her mother. Thereafter, the matter was reported to the police vide Ex. P-l and then with her consent she was medically examined. This witness has further made it clear that at the time when the accused/appellant inserted his private part into that of her, she had cried as she was having severe pain in her private part. In cross-examination also this witness has reiterated the same thing as in the examination-in-chief. Urvashi (PW-2) has duly supported the statement made by the prosecutrix (PW-1) and stated that by making her sit in the verandah, the accused/ appellant took the prosecutrix to a room. According to her, when the prosecutrix did not come out, this witness went into the room and saw that the accused/appellant was mounting on her. While she was taking her sister back, the accused/appellant had asked her not to disclose the matter to anyone and then after reaching home the prosecutrix started weeping and narrated the incident to the family members. Urmila (PW-3) and Sanjay Dewangan (PW-4) mother and father of the prosecutrix have supported the case of the prosecution stating almost the same thing as has been stated by the prosecutrix (PW-1). Dr. LalitaThakur (PW-5) is the witness who had medically examined the prosecutrix has stated that she did not notice any injury on her person. This witness has further stated that replying to the query Ex. P-12 regarding presence of spermatozoa on the skirt of the prosecutrix, vide Ex. P-l3 she had advised to wait for the FSL report. Rajiv Gota (PW-6) is the constable who had brought the medical report and the slides from CHC Amoda but he has not supported the case of the prosecution and has been declared hostile. Dr. Yashwant Dhruv (PW-7) is the witness who medically examined the accused /appellant and gave his report Ex. P-19 stating that he was capable of performing sexual intercourse. Niranjan Singh Thakur (PW-8) is the witness who did part of investigation. Prithvi Dubey (PW-9) is the investigating officer who has supported the case of the prosecution. Dr. Yashwant Dhruv (PW-7) is the witness who medically examined the accused /appellant and gave his report Ex. P-19 stating that he was capable of performing sexual intercourse. Niranjan Singh Thakur (PW-8) is the witness who did part of investigation. Prithvi Dubey (PW-9) is the investigating officer who has supported the case of the prosecution. S. R. Netam (PW-10) - the principal of the school who has proved the age of the prosecutrix stating that her date of birth was recorded in the school register as 10-11-1993. [9] Thus the evidence of the witnesses particularly that of the prosecutrix goes to show that the appellant herein who happens to be a doctor had called the prosecutrix to his residence for giving treatment and then by taking her in his bedroom committed forcible sexual intercourse with her. Prosecutrix has been very specific while describing the incident that after setting her legs apart the appellant had inserted his private part into that of her and when he did that she had cried out due to the acute pain in her private part and was feeling giddiness. When a tender aged girl like the prosecutrix is subjected to rape, it cannot be expected from her to explain whether penetration was full or partial. If the case of the appellant is that no pentration at all was done then he should have put a question to the prosecutrix whether the accused/ appellant had touched his private part into that of her or not. Even if the prosecutrix has not stated whether the penetration was full or partial, the appellant cannot derive any benefit of the same as it is a settled legal position that to establish a case under Section 376 IPC slight penetration itself would be sufficient to constitute the offence of rape. In the absence of any such question put to the prosecutrix or any other evidence to his effect, statement of the prosecutrix has to be believed wherein she has categorically deposed that the accused/appellant has inserted his private part into that of her and this Court has no reason to disbelieve the specific statement of the prosecutrix. Thus, the argument of the counsel for the appellant that present case would fall under Section 376/511 of IPC is turned down. Thus, the argument of the counsel for the appellant that present case would fall under Section 376/511 of IPC is turned down. Though the doctor has not found any injury on the private part of the prosecutrix or that of the appellant, the accused/appellant cannot derive any benefit of the same because it is not the case of the prosecution that the appellant succeeded in full penetration and consequent ejaculation. In fact, the case of the prosecution itself is that after setting her legs apart, the accused/appellant had inserted his private part into that of her and as a result of which she felt acute pain in her private part coupled with giddiness and then her sister came there and sprinkled water on her. Thus the evidence of the prosecutrix being trustworthy inspires full confidence of the Court and there is no reason for this Court to disbelieve her testimony. This abominable act of the appellant who instead of being committed to the service of the society as a doctor has ravished a minor girl, is unpardonable. The decisions taken support of by the counsel for the appellant being on altogether different footing are not applicable to the case in hand. [10] In conclusion, it is held that looking to the perverted act of the accused /appellant in molesting a minor girl, the Court below has been quite justified in convicting him under Section 376 IPC. No other view than what has been taken by the Court below can be there while reviewing the judgment impugned. Accordingly, the appeal being without substance is liable to be dismissed. It is accordingly dismissed. Appellant is already in jail and therefore no order regarding his surrender or arrest for undergoing the sentence is required. Appeal dismissed.