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2013 DIGILAW 270 (CHH)

Sunil Sinha v. State of C. G.

2013-09-10

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
JUDGMENT 1. This appeal is directed against judgment dated 06.11.2007 passed by Additional Sessions Judge, Uttar Bastar Kanker, in Sessions Trial No. 92/2007. By the impugned judgment, accused/appellant Sunil Sinha has been convicted under Section 376(2)(f) of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/-, in default of payment of fine, to further undergo rigorous imprisonment for one year. Case of the prosecution, in brief, is as under: Prosecutrix (P.W.-2) is daughter of Smt. Maheshwari Sinha (P.W.-1). At the time of incident, prosecutrix (P.W.-2) was aged about 5-6 years. On the date of incident, i.e. on 16.3.2007, Maheshwari Sinha (P.W.-1) and her husband Soonaram (P.W.-3) had gone for labour work. At about 1.00 p.m., when they returned home, no one was present in the house. After sometime, prosecutrix (P.W.-2) came back home and she was not in a position to speak. On being asked by Maheshwari (P.W.-1), she started crying. Then Maheshwari Sinha (P.W.-1) noticed that the underwear of the prosecutrix (P.W.-2) was soaked with blood and blood was coming out from her vagina. Thereafter, prosecutrix (P.W.-2) told that in the morning she had gone with her grand-mother for collecting mahua seeds and from there she had gone to the house of Vimla (P.W.-5), where the appellant, brother of Vimla (P.W.-5), was present. The appellant called prosecutrix (P.W.-2) inside the room, he switched on the TV and then closed the door from inside. The appellant spread a carpet (chattai) on the floor and asked prosecutrix (P.W.-2) to sit on the carpet. Thereafter, the appellant removed the underwear of prosecutrix (P.W.-2) and also removed his clothes and inserted his penis in her vagina. The appellant committed forcible sexual intercourse with her. When prosecutrix (P.W.-2) started crying due to pain, the appellant stopped and gave her Rs. 10/- and asked her not to disclose the incident to anyone. Prosecutrix (P.W.-2) narrated the incident to her parents as also to Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) and Panna Bai (P.W.-6). Maheshwari Sinha (P.W.-1) lodged First Information Report (Ex.-P/1) in Police Station Kanker, where Crime No. 84/07 for offence under Section 376(2)(f) was registered. Prosecutrix (P.W.-2) was sent to the Govt. KD Hospital, Kanker for medical examination vide Ex.-P/12. Dr. Prosecutrix (P.W.-2) narrated the incident to her parents as also to Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) and Panna Bai (P.W.-6). Maheshwari Sinha (P.W.-1) lodged First Information Report (Ex.-P/1) in Police Station Kanker, where Crime No. 84/07 for offence under Section 376(2)(f) was registered. Prosecutrix (P.W.-2) was sent to the Govt. KD Hospital, Kanker for medical examination vide Ex.-P/12. Dr. Ranjana Gupta (P.W.-8) examined prosecutrix (P.W.-2) and gave her report (Ex.-P/14) finding labia minora and majora were not developed, blood stains were present around perineum, blood was coming out from the vagina and hymen was ruptured. She opined that prosecutrix (P.W.-2) was subjected to forcible sexual intercourse. She prepared two slides of vaginal smear of prosecutrix (P.W.-2) and handed over to Police Constable for its chemical examination. The appellant was also sent to the Government KD Hospital, Kanker for medical examination. Dr. Vijay Usendi (P.W.-9) examined the appellant and gave his report (Ex.-P/18) mentioning that the appellant was capable of performing sexual intercourse. In further investigation, underwear of prosecutrix (P.W.-2) was seized vide Ex.-P/2. Spot map (Ex.-P/5) was prepared by Patwari. Currency note of Rs. 10/- was seized from prosecutrix (P.W.-2) vide Ex.-P/6. Carpet was seized from the house of Vimla Sinha (P.W.-5) vide Ex.-P/7. Investigating Officer also prepared spot map vide Ex.-P/9. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Underwear of the appellant was also seized vide Ex.-P/11. The appellant was arrested vide Ex.-P/8. Slides of vaginal smear of prosecutrix (P.W.-2) was also seized and pubic hair of the appellant was also seized vide Ex.-P/21. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.-P/24 and report (Ex.-P/29) received therefrom. In Ex.-P/29, it is reported that Article-A1 i.e. slides of vaginal smear of prosecutrix (P.W.-2), Article B - dried blood of prosecutrix (P.W.-2), Article C1-underwear of prosecutrix (P.W.-2), Article C2-pubic hair of prosecutrix (P.W.-2), E1-underwear of the appellant, E2 pube of the appellant were stained with blood and Article A1-slides of vaginal smear of prosecutrix (P.W.-2), C1-underwear of prosecutrix (P.W.-2) and E1-underwear of the appellant were stained with human spermatozoa. After completion of investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Kanker, who, in turn, committed the case to the Court of Session, North Bastar Kanker, from where it was received on transfer by Additional Sessions Judge, North Bastar Kanker, who conducted the trial and convicted and sentenced the appellant as mentioned above. 2. In support of its case, the prosecution has examined Maheshwari Sinha (P.W.-1) - mother of prosecutrix, prosecutrix (P.W.-2), Soonaram (P.W.-3)-father of prosecutrix, Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) - sister of the appellant, Parma Bai (P.W.-6), Constable Smt. Shasihikala Sahu (P.W.-7), Dr. Ranjana Gupta (P.W.-8), Dr. Vijay Usendi (P.W.-9) and Sub Inspector Madhuri Nayak (P.W.-10). The appellant did not examine any witness in his defense. 3. Ms. Nirupama Bajpai, learned counsel appearing for the appellant argued that the evidence of prosecutrix (P.W.-2) does not inspire confidence. The trial Court grossly erred in holding the appellant guilty for the offence punishable under Section 376 IPC. She further argued that the case of the prosecution is highly improbable. 4. On the other hand, Mr. Neeraj Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Prosecutrix (P.W.-2) deposed that Maheshwari Sinha (P.W.-1) is her mother and Soonaram (P.W.-3) is her father. She further deposed that her parents had gone for labour work in the morning and her brother Sankesh and sister Sangeeta had gone to school. Her grand-mother had gone to collect mahua seeds. After sometime, she had also gone for collecting mahua seeds. She further deposed that she met Vimla (P.W.-5) and Vimla (P.W.-5) told her that chapattis were kept in the shelf of her house and asked her to have the chapattis. She went to the house of Vimla (P.W.-5), where the appellant was present alone. She further deposed that the appellant asked her to come inside the room. When she entered into the room, the appellant switched on TV. She sat on the chair to watch the TV. She further deposed that thereafter, the appellant spread a carpet in front of the TV and asked her to sit on the carpet. Thereafter, the appellant removed her underwear and also removed his clothes and inserted his penis into her vagina. Due to pain, she started crying. She sat on the chair to watch the TV. She further deposed that thereafter, the appellant spread a carpet in front of the TV and asked her to sit on the carpet. Thereafter, the appellant removed her underwear and also removed his clothes and inserted his penis into her vagina. Due to pain, she started crying. Then the appellant stopped and wore his clothes. Thereafter, he gave a currency note of Rs. 10/- to her and asked her not to disclose the incident to anyone. Thereafter, the appellant opened the door and asked her to go out. She further deposed that she came back to home and on being asked by her parents, she disclosed the incident to them. At that time, her underwear was soaked with blood and blood was coming out from her vagina. She further deposed that she also disclosed the incident to Panna Bai (P.W.-6). 6. Smt. Maheswari Bai (P.W.-1) deposed that on the date of incident, she had gone for labour work along with her husband and her daughter (prosecutrix), aged about 5 years, was in the house. At about 12.00 noon, when she returned her home along with her husband for lunch, she noticed that her daughter (prosecutrix) was crying, her underwear was stained with blood and blood was coming out from her vagina. On being asked, prosecutrix (P.W.-2) narrated the incident to her that the appellant committed forcible sexual intercourse with her. Soonaram (P.W.-3) also deposed in similar fashion. Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) and Panna Bai (P.W.-6) deposed that Soonaram (P.W.-3) called them and they went to the house of Soonaram (P.W.-3) and saw that blood was coming out from the vagina of prosecutrix (P.W.-2). On being asked by them, prosecutrix (P.W.-2) told them that the appellant committed forcible sexual intercourse with her. They specifically deposed that at that time blood was coming out from the vagina of prosecutrix (P.W.-2). 7. Sub-Inspector Madhuri Nayak (P.W.-10) deposed that on 16.3.07, Maheshwari Sinha (P.W.-1) lodged First Information Report (Ex.-P/1) in Police Station Ranker. She further deposed that she registered Crime No. 84/07 for offence punishable under Section 376(2)(f) IPC against the appellant and also sent a copy of the FIR to Chief Judicial Magistrate, Ranker and its acknowledgement is Ex. P/19. She further deposed that she sent prosecutrix (P.W.-2) to Government KD Hospital, Ranker for medical examination. 8. Dr. She further deposed that she registered Crime No. 84/07 for offence punishable under Section 376(2)(f) IPC against the appellant and also sent a copy of the FIR to Chief Judicial Magistrate, Ranker and its acknowledgement is Ex. P/19. She further deposed that she sent prosecutrix (P.W.-2) to Government KD Hospital, Ranker for medical examination. 8. Dr. Ranjana Gupta (P.W.-8) deposed that she examined prosecutrix (P.W.-2) and gave report (Ex.-P/14) finding labia minora and majora were not developed, blood stains were present around perineum, blood was coming out from the vagina and hymen was ruptured. She opined that prosecutrix (P.W.-2) was subjected to forcible sexual intercourse. She prepared slides of vaginal smear of the prosecutrix (P.W.-2). Slides of vaginal smear of the prosecutrix, underwears of the prosecutrix and the appellant were sent to Forensic Science Laboratory, Raipur for chemical examination. In FSL report (Ex.-P/29) it is mentioned that slides of the vaginal smear of prosecutrix, underwears of the prosecutrix (P.W.-2) and the appellant were stained with human spermatozoa. 9. In the instant case, prosecutrix (P.W.-2), aged about out 5-6 years, specifically deposed that she went to the house of Vimla Sinha (P.W.-5) and at that time, the appellant was alone in the house. He called her inside the room and asked her to lay down on the carpet. Thereafter, he removed her underwear and also removed his clothes and inserted in penis into her vagina. Blood was started coming out from her vagina. Maheshwari Sinha (P.W.-1) specifically deposed that when she came back home after her work, prosecutrix (P.W.-2) was crying. On being asked, prosecutrix (P.W.-2) narrated the incident to her and her husband. Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) and Panna Bai (P.W.-6) also specifically deposed that they went to the house of Soonaram (P.W.-3) and saw that underwear of the prosecutrix (P.W.-2) was stained with blood and blood was coming out from her vagina. On being asked by them, prosecutrix (P.W.-2) specifically told them that the appellant committed forcible sexual intercourse with her. 10. When the appellant/accused was examined under Section 313 Cr.P.C., the appellant outrightly denied that he committed sexual intercourse with prosecutrix (P.W.-2) and stated that he was falsely implicated. 11. In the instant case, Vimla Sinha (P.W.-5) is real sister of the appellant and she specifically deposed that prosecutrix (P.W.-2) narrated to her that the appellant committed forcible sexual intercourse with her. 11. In the instant case, Vimla Sinha (P.W.-5) is real sister of the appellant and she specifically deposed that prosecutrix (P.W.-2) narrated to her that the appellant committed forcible sexual intercourse with her. She also deposed that she noticed that blood was coming out from the vagina of prosecutrix (P.W.-2). Vimla Sinha (P.W.-5) has deposed against her brother (appellant). Maheswari Sinha (P.W.-2), Soonaram (P.W.-3), Ramchandra (P.W.-4), Vimla Sinha (P.W.-5) and Panna Bai (P.W.-6) specifically deposed that on being asked by them, prosecutrix (P.W.-2) specifically narrated the incident to them. 12. On the date of incident, prosecutrix (P.W.-2) was aged about 5-6 years and it is not possible to believe that 5-6 years old girl would allow the real culprit to escape and falsely implicate the appellant. It is also not possible that Maheshwari Sinha (P.W.-1) and Soonaram (P.W.-3) would falsely involve prosecutrix (P.W.-2) in a case of rape by the appellant. 13. Looking to the evidence of prosecutrix (P.W.-2), Maheshwari Sinha (P.W.-1), Soonaram (P.W.-3), Ramchandra (P.W.-4), Vimla Sinha (P.W.-5), Panna Bai (P.W.-6) and medical evidence, it appears that the appellant committed forcible sexual intercourse with prosecutrix (P.W.-2). 14. In view of the above, we are of the considered opinion that the appellant committed forcible sexual intercourse with prosecutrix (P.W.-2) and we do not find any reason to interfere with the finding recorded by the learned Additional Sessions Judge on the basis of proper appreciation of the evidence available on record, as also sentence, thereon. In the result, the appeal being devoid of any merit, deserves to be and is hereby dismissed.