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2013 DIGILAW 97 (CHH)

KUMAR SAI v. STATE OF M. P.

2013-03-08

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 12.8.1997 passed by Sessions Judge, Sarguja (Ambikapur) in Sessions Trial No. 164/1996 convicting the accused/appellant for the offence punishable under Section 376 (1) IPC and sentencing him to undergo RI for seven years. 2. Case of the prosecution in brief is that on 12.2.1994 at 11.15 a.m. FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) - a minor girl aged about 11 years to the effect that on 11.2.1994 at about 5 p.m. when she had gone to the well to fetch water, accused/appellant who was working in the nearby field came there, caught hold of her hand, took her to the nearby enclosure, threw her on the ground and committed forcible sexual intercourse with her. It is alleged that when she tried to raise alarm, he pressed her neck and that on account of his act she felt pain and started weeping. At that time, it is stated that her mother came there and after seeing her the accused/appellant left the spot. Based on this FIR, offence under Section 376 IPC was registered against the accused/appellant, she was medically examined on 13.2. 1994 vide Ex. P-3. After completion of investigation charge-sheet was filed by the police under section 354 IPC and the trial Magistrate also framed the charge under the said section. After recording the statement of the prosecutrix and that of her mother the trial Magistrate found that the offence under Section 376 IPC was also made out and therefore it committed the case to the Court of Sessions for trial where the charge under Section 376 (1) IPC came to be framed against the accused/appellant. 3. In support of its case the prosecution has examined 05 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he pleaded his innocence and false implication in the case. This apart, one Amrit Prasad (DW-1) has also been examined by the defence in support of its case. 4. After hearing the pm1ies, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Counsel for the accused/appellant submits that present is a case where the accused/appellant has been falsely implicated on account of some previous dispute between the two families. 4. After hearing the pm1ies, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Counsel for the accused/appellant submits that present is a case where the accused/appellant has been falsely implicated on account of some previous dispute between the two families. He submits that medical report also does not support the case of the prosecution as no external or internal injury has been found on the person of the prosecutrix and even her hymen was found to be intact. Thus according to the counsel for the accused/appellant the accused/ appellant cannot be convicted under Section 376 and at the most his act would fall u/s 376/511 or 354 IPC. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that in case of a minor girl aged about 11 years, at -times hymen being deep seated remains intact. He submits that rupture of hymen is not sine qua non for conviction in sex related offences. According to the State counsel, the defence has not adduced any evidence to show as to why the prosecutrix would implicate the accused in a false case and that even a slight penetration is sufficient to convict a person under Section 376 IPC. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-1) has stated that on the date of incident when she had gone to the well for fetching water, accused/appellant came there, caught hold of her right hand, dragged her upto 5-6 steps, threw her on the ground and after upturning the petticoat worn by her committed forcible sexual intercourse with her by pressing her mouth. At that very time her mother reached there and after seeing her the accused/appellant left the spot. On being asked by her mother, she told her about having been subjected to rape by the accused/appellant, who in turn informed the same to the village Sarpanch and village Patel and then the report came to be lodged. Thereafter, she was medically examined and her petticoat was seized by the police. This witness has denied the fact that there was any dispute between her and the accused/appellant on account of grazing of cattle or on account of fetching water from the well of the accused/appellant. Thereafter, she was medically examined and her petticoat was seized by the police. This witness has denied the fact that there was any dispute between her and the accused/appellant on account of grazing of cattle or on account of fetching water from the well of the accused/appellant. According to her, it is she who had lodged the report and her statement Ex. D- 1 was recorded by the trial Magistrate but she has not stated before it that the accused/appellant used to pick up quarrel with her. She has also denied that she lodged the report against the accused/appellant at the instance of her mother. In cross examination also this witness has not deviated from her statement made in the examination in chief and remained stuck to the same. Dr. I.D. Bhatnagar (PW-2) is the witness who medically examined the accused/appellant and gave his report Ex. P-2 stating that he was capable of performing sexual intercourse. Dr. (Smt.) Kalavati Patel (PW3) is the witness who medically examined the prosecutrix and gave her report Ex. P-3 stating that her secondary sexual characters and breast were not developed but she did not find any injury on her person, her hymen was intact and no definite opinion regarding rape on her could be given. Sudeshwar Dubey (PW-4) is the head constable who assisted in the investigation. N.P. Upadhyaya (PW -5) is the investigating officer who has duly supported the case of the prosecution. Amrit Prasad (DW -1) though was cited as prosecution witness, he has been examined as defence witness and has stated that at the instance of mother of the prosecutrix a Panchayat meeting was called where it was disclosed by her (mother) that when the prosecutrix had gone to the well to fetch water, there was some dispute between the accused/appellant and the prosecutrix. This fact, according to this witness, was confirmed by the prosecutrix also. 9. Perusal of the material available on record particularly the statement of the prosecutrix goes to show that on the fateful day when she had gone to the well to fetch water, accused/appellant came over there, dragged her to the nearby enclosure, threw her on the ground and after upturning her petticoat committed forcible sexual intercourse with her. 9. Perusal of the material available on record particularly the statement of the prosecutrix goes to show that on the fateful day when she had gone to the well to fetch water, accused/appellant came over there, dragged her to the nearby enclosure, threw her on the ground and after upturning her petticoat committed forcible sexual intercourse with her. Record also shows that after the incident mother of the prosecutrix reached the spot, accused/appellant fled away and then on being asked, she (prosecutrix) informed her about the incident and then the report came to be lodged. This Court does not find any force in the submission of the counsel for the accused/appellant that on account of some dispute over fetching water from the well of the accused/appellant, the prosecutrix has implicated him in a false case because to a woman in the country like ours nothing is dearer than her virginity and she would not put it at stake for such trivial instances. This Court further does not find any substance in the argument of the counsel for the accused/appellant that there was no external or internal injury on the person of the prosecutrix and her hymen too was intact for the reason that in the case of a girl of tender age, rupture of hymen, in the event of penetration, is not a matter of rule. In cases where the hymen is deep seated, it may not rupture though there may be a penetration. In case of a forcible attempt to penetrate also, there are chances that the hymen of the victim may not rupture particularly when it is deep seated. 10. Thus in view of above, it is clearly established that the accused/ appellant has molested a tender aged girl of 13 years. Prosecution has satisfactorily proved its case by adducing ample evidence which ultimately became the basis for the Court below to record conviction. No flaw is visible in the findings recorded by the Court below which could be interfered with by this Court. In these circumstances, the judgment impugned deserves to be maintained. 11. In the result, the appeal has no substance. It is accordingly dismissed. Accused/appellant is on bail. His bail bonds stand cancelled. He be sent to jail forthwith to undergo remaining part of the sentence. Appeal Dismissed.