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2013 DIGILAW 98 (CHH)

RAJU ALIAS ARWIND KUMAR YADAV v. STATE OF C. G.

2013-03-08

Pritinker Diwaker

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 26.11.2008 passed by Additional Sessions Judge, Katghora, District Korba in Sessions Trial No. 58/2007 convicting the accused/appellant for the offence punishable under Section 376 (2)(f) IPC and sentencing him to undergo RI for ten years and pay fine of Rs. 5000/-, in default of payment of fine to further undergo RI for two years. 2. Facts of the case in brief are that on 17.1.2007 at 9.30 p.m. FIR EX.P-I was lodged by Lilamber (PW-2) - the father of the prosecutrix, stating that on that day at 6 p.m. when he returned home, his wife informed him that his minor daughter (PW -1) aged about 9 years at the relevant time was subjected to rape by the accused/appellant. Based on this report, offence under Section 376 IPC was registered against the accused/appellant and the prosecutrix was medically examined on 18.1.2007 by Dr. Anushri Mukhopadhyaya (PW-12) who gave her report Ex. P-9 stating that sign of recent intercourse was noticed by her. After completion of investigation, charge-sheet was filed on 16.5.2007 for the offence under Sections 376 and 506 IPC. Court below however framed the charge under Section 376 (2)(f) IPC. 3. In support of its case the prosecution has examined 16 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 pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellant submits that on account of some previous enmity the appellant has been falsely implicated in the case and that the story put forth by the prosecutrix is highly improbable. He further submits that statement of the prosecutrix is not consistent and therefore conviction of the accused/appellant based thereon is not sustainable in the eye of law. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that prosecutrix (PW-1) has categorically stated about the manner in which she was subjected to rape by the accused/appellant and that her statement is duly supported by her mother, father and one independent witness (PW-4). 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that prosecutrix (PW-1) has categorically stated about the manner in which she was subjected to rape by the accused/appellant and that her statement is duly supported by her mother, father and one independent witness (PW-4). Lastly, he submit that medical report Ex. P-9 also supports the case of the prosecution where the doctor medically examining the prosecutrix has categorically stated that she was subjected to rape. Thus according to the State counsel there is no illegality or infirmity in the judgment impugned warranting interference in this appeal. 8. While recording the statement of prosecutrix (PW-1) first of all the Court has satisfied itself regarding her ability to understand and answer the question put to her. Prosecutrix has stated that on the date of incident when she was playing with her friends Roshni, Mohni and her brother, accused/ appellant came there and caught hold of Roshni but as she was scared, he left her. Thereafter, he caught hold of her, took her to a nearby tree and by that time all her playmates had left the place and darkness had prevailed. Then, according to this witness, accused/appellant removed her clothes and telling her that he was the Don of Delhi, inserted his private part into that of her. Accused/ appellant also inserted his finger into her private part and on account of all this she started bleeding. When this witness abused the accused/appellant, he pressed her mouth on account of which she became unconscious. Thereafter, leaving her alone, the accused/appellant went away. After that, she also wore her clothes and got back home and described the entire incident to her mother. On coming to know about the incident, her mother started weeping and thereafter the report came to be lodged. Barring certain discrepancies, in the cross examination also this witness stood firm to the things stated in the examination-in-chief. Lilamber (PW-2) - the father of the prosecutrix has stated that in the evening when he returned to his house, his wife informed him that his daughter (prosecutrix) was subjected to rape by the accused/appellant. Smt. Dev Kunwar (PW-3) - the mother of the prosecutrix supporting the case of the prosecution has stated that after returning home, her daughter (prosecutrix) informed her that she was subjected to rape by the accused/appellant. Smt. Dev Kunwar (PW-3) - the mother of the prosecutrix supporting the case of the prosecution has stated that after returning home, her daughter (prosecutrix) informed her that she was subjected to rape by the accused/appellant. Thereafter, when the prosecutrix went to pass urine, this witness saw the blood oozing from her private part and on seeing this she got perturbed. In cross-examination also, this witness remained firm to what she has stated in the examination-in-chief. Ku. Roshni Mahant (PW-4) - the playmate of the prosecutrix has stated that while some children were playing. the accused/appellant picked up the prosecutrix. Kriparam Patel (PW-5) is the witness who accompanied the father of the prosecutrix to police station for lodging the report. Rajesh Yadav (PW6) is the witness to seizure of underwear of the prosecutrix made under Ex. P-4. Smt. Saraswati Kaushik (PW -7) is the lady constable who took the prosecutrix for medical examination and then after collecting the vaginal slides handed over the same to the SHO of concerned police station. Pradeep Mishra (PW-8) - the witness to seizure of articles made under Ex. P-8 has not supported the case of the prosecution. Sanjay Kumar Kanwar (PW-9) - the witness to seizure made under Ex. P-5 has also not supported the case of the prosecution. Aghan Bai Kanwar (PW-10) is the villager to whom incident was informed by the father of the prosecutrix. Purshottam Singh (PW -11) is the head constable who received the vaginal slides from (PW -7) and made seizure vide Ex. P7. Dr. Anushri Mukhopadhyaya (PW-12) is the witness who medically examined the prosecutrix and gave her report Ex. P-9 stating that her secondary sexual characters were not developed, there was redness in her private part, on touch, she was complaining pain in her private part her hymen was torn and she was bleeding. According to her, she noticed the sign of recent intercourse with the prosecutrix and that for determination of age she was referred to CIIMS Bilaspur for x-ray. Underwear of the prosecutrix was sent to her and after marking on it, she had given the same to the lady constable for being taken to the laboratory for chemical examination. H.R. Chandra (PW-13) - Assistant Sub Inspector is the witness who had assisted in the investigation. N.L. Dhritlahre (PW-14) is the investigating officer who has duly supported the case of the prosecution. H.R. Chandra (PW-13) - Assistant Sub Inspector is the witness who had assisted in the investigation. N.L. Dhritlahre (PW-14) is the investigating officer who has duly supported the case of the prosecution. In paragraph No.7 this witness has stated that during investigation he had seized the underwear of the accused/appellant and the prosecutrix as also her vaginal slides and had sent the same for chemical examination vide Ex. P-15 under acknowledgment Ex. P-16. Dr. R. Jitpure (PW -15) is the witness who did ossification test of the prosecutrix and according to the report given by him Ex. P- 19 she was aged between 6 and 8 years. Dr. P.R. Kumbhkar (PW- I 6) is the witness who medically examined the accused/appellant and according to the report given by him vide Ex. P-20, he was capable of performing sexual intercourse. He had collected the underwear of the accused/appellant and after marking the spot, he had advised for sending the same for chemical examination vide Ex. P-21. 9. Having thus gone through the material available on record including the evidence of the witnesses in partkular that of the prosecutrix, it is established that on the fateful day the accused/appellant committed forcible sexual intercourse with the prosecutrix aged about 8-9 years. Apart from satisfying his lust, the accused/appellant also inserted his finger into her private part and as a cumulative effect of all this she stal1ed bleeding. Evidence of the prosecutrix, gets full support from the medical evidence and that being the situation, there is no reason for this Court to find flaw with the findings recorded by the .court below. Judgment impugned appears to be fully based on the evidence of the witnesses and therefore deserve affirmation. Accordingly, the appeal being without substance is liable to be dismissed and it is dismissed as such. 10. Record shows that on 11.5.2007 certain articles such as underwear of the prosecutrix and that of the accused/appellant were sent for chemical examination and they were received there on 14.5.2007 vide acknowledgment Ex. P- 16 but no such report has been sent by the Laboratory. It is noticed that in number of cases several articles and documents are sent for chemical examination but the reports are not being sent by the Forensic Science Laboratory which sometime prove fatal for the case of prosecution. P- 16 but no such report has been sent by the Laboratory. It is noticed that in number of cases several articles and documents are sent for chemical examination but the reports are not being sent by the Forensic Science Laboratory which sometime prove fatal for the case of prosecution. Secretary - Home and Director General of Police are directed to issue necessary direction to ensure that the reports after examination of articles or documents are dispatched promptly by the Forensic Science Laboratory to be annexed with the challan or produced at the time of trial at least. Learned Advocate General is requested to communicate this order to the Secretary- Home and Director General of Police. Appeal Dismissed.