Mohd. Junaid Sheikh @ Pappu v. State Of Chhattisgarh
2015-05-15
MANINDRA MOHAN SHRIVASTAVA
body2015
DigiLaw.ai
Judgment : 1. This appeal is directed against the judgment of conviction and order of sentence dated 18.9.2012 parsed by learned Special Judge (ST & ST Prevention of Atrocities Act) Durg, in Special Case No. 39/2010, whereby and whereunder the appellant has been held guilty of commission of offence alleged against him and sentenced as described below :- Conviction Sentence U/s. 376 (1) of the IPC R.I. for 10 years and fine of Rs. 10,000/- and in default payment of fine, additional for 6 month 2. The prosecution story, as unfolded from the records and the impugned judgment, is that the appellant Mohd. Junaid Sheikh and prosecutrix (P.W. 10) were neigbours. About a year before July, 2010, the appellant had taken the prosecutrix near canal towards Housing Board and she was taken to a dilapidated building and asked to change her clothes. Thereafter, the prosecutrix was taken by him towards Jamul Hills and there, she was subjected to rape and thereafter she was threatened not to disclose the incident to anyone. Further case of the prosecution is that thereafter again in the month of December, appellant insisted the prosecutrix to go along with him to Laxmi Lodge. When the prosecutrix denied, the appellant displayed photograph taken in his mobile where the prosecutrix was shown changing her clothes. The appellant threatened her that it she does not accede to his sexual desire, he would get mobile clipping circulated in the house as also in the open market. Due to this threat, the prosecutrix went along with the appellant to Laxmi Lodge where she was again subjected h, rape and threatened not to disclose the incident to anyone, otherwise her brother would be murdered and obscene photographs of her sister would also be prepared. Further story of the prosecution is that thereafter on 14.5.2010 when the prosecutrix was going towards Camp-2, she was again intercepted by the appellant who came in his motorcycle. Thereafter, she was taken to a hotel where she took snacks and cold-drink and then she was taken in the bushes near Sector-6 Jayanti Stadium and the prosecutrix was again subjected to rape and obscene video clipping was prepared by the appellant in his mobile. The prosecutrix was again threatened not to disclose the incident to anyone. In this manner, the appellant blackmailed the prosecutrix and kept on committing rape.
The prosecutrix was again threatened not to disclose the incident to anyone. In this manner, the appellant blackmailed the prosecutrix and kept on committing rape. It was further alleged that the obscene video clipping were given to co-accused Rohit, who prepared C.D. of the obscene video arid got it distributed in the market. When the father and brother of the prosecutrix came to know about such distribution of obscene C.D. and inquired, the prosecutrix disclosed the entire incident which led to lodging of FIR in Ex. P-14 on 1.7.2010. Thereafter, the prosecutrix was sent for medical examination. The evidence with regard to date of birth of the prosecutrix was collected from the school which included transfer certificate, High School examination mark-sheet and entries made in the dakhil kharij register. Documentary evidence regarding birth of the prosecutrix in hospital were also collected. Clothes of the prosecutrix and appellant, vaginal swab were sent for medical analysis to Forensic Science Laboratory (FSL), wherefrom report was also received. It is also the case of the prosecution that obscene video CD was also seized. A panchnama of pictures contained in the CD was also prepared in the presence of witnesses. Computer Monitor, CPU, Mouse, Memory Card Reader, Key board and one mobile set memory chip with CD cassette as also seized from co-accused Rohit. Upon completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Durg which was, in turn, committed for trial to Special Judge for alleged commission of offence. 3. In order to prove its case, prosecution examined in all 19 witnesses. The appellant was also examined under Section 313 Cr.P.C. in respect of incriminating evidence and circumstances appearing against him. The appellant denied having committed any offence. In his defence, he stated that he has been falsely implicated. Family members of the prosecutrix threatened him to implicate in a false case and demanded money in respect of which his father lodged report in the police station on 17.6.2010 against Sonu, brother of the prosecutrix. In his defence, the appellant examined Mohd. Jalil as D.W.1 and Mahendra Kumar as D.W.2. 4. Learned trial Court, however, disbelieving the defence of the appellant' and relying upon the evidence led by the prosecution, particularly the evidence of the prosecutrix (P.W.10) held the appellant guilty of commission of offence and sentenced him as described above. 5.
In his defence, the appellant examined Mohd. Jalil as D.W.1 and Mahendra Kumar as D.W.2. 4. Learned trial Court, however, disbelieving the defence of the appellant' and relying upon the evidence led by the prosecution, particularly the evidence of the prosecutrix (P.W.10) held the appellant guilty of commission of offence and sentenced him as described above. 5. Assailing correctness and validity of the impugned judgment of convection and order of sentence, learned counsel for the appellant contended that the prosecution has failed to prove beyond reasonable doubt that the appellant committed any rape on the prosecutrix. It is contended that the FIR has been lodged by the prosecutrix alleging rape committed on her by the appellant one year before followed by another incident of rape in the month of December and then on 4.5.2010, after a long and un-explained delay which renders the entire story of the prosecution doubtful and smatk of false implication. It is next contended that story of rape, as narrated by the prosectrix is wholly improbable, as according to the prosecutrix herself the first incident of rape occurred at the time of marriage of the brother of appellant. The evidence on record led by the prosecution itself shows that the marriage of the appellant's brother had taken place in the year 2008 i.e. almost 2 years before the date of lodging FIR. Therefore, the version of the prosecutrix that the incident happened a year before the date of lodging FIR becomes doubtful. Next contention of learned counsel for the appellant is that the prosecutrix has failed to prove by leading clinching and reliable evidence that the prosecutrix was a minor and less than 18 years of age on the alleged date of commission of offence of rape. There is serious contradiction in the prosecution evidence with regard to date of birth of the prosecutrix. While in the hospital records, the date of birth is stated to be recorded as 20th June, 1994, in the school records, the date of birth of the prosecutrix has been recorded as 20th July, 1994. The Head Master and the custodian of school records namely Sahab Sharma (P.W.18) has stated that no separate declaration with regard to date of birth was given and he does not know who had come to get the prosecutrix admitted in the school and he has not made any entry in Ex.P-35.
The Head Master and the custodian of school records namely Sahab Sharma (P.W.18) has stated that no separate declaration with regard to date of birth was given and he does not know who had come to get the prosecutrix admitted in the school and he has not made any entry in Ex.P-35. The register of date of birth maintained in the school, in the absence of evidence as to at whose instance the entries were made in the school register coupled with a contradictory evidence with regard to date of birth as contained in the hospital records and school records and the testimony of statement of Ramnaresh (P.W.11), father of the prosecutrix, the date of birth of the prosecutrix has not been proved beyond reasonable doubt by the prosecution. The story that the appellant prepared obscene video clipping and photographs which was shown to the prosecutrix to blackmail her and succumb to his sexual desires as highly doubtful because no obscene CD or video clipping has been seited from the possession of the appellant and the CDs which have been seized by the prosecution alleged to be containing obscene pictures did not connect the appellant with the alleged commission of offence. On the other hand, it shows that the prosecutrix herself is a girl of easy virtue. The defence of the appellant is therefore, plausible that in order to extract money from the appellant and at the instance of Sonu, brother of the prosecutrix (P.W.15), false report has been lodged against the appellant. It is next contended that the evidence of Dr. Meeta Day (P.W.7) does not support the prosecution case as no injury was found on any part of the body including private parts of the prosecutrix, to corroborate the prosecution story of commission of rape. The medical examination only proves that the prosecutrix was habitual to sexual intercourse. Therefore, the evidence of the prosecutrix that she was subjected to rape one year before the date of lodging FIR and continued thereafter on different dates is highly doubtful when the report itself has been lodged on 1.7.2010 which is more than 56 days after alleged last incident of rape on 4.5.2010.
Therefore, the evidence of the prosecutrix that she was subjected to rape one year before the date of lodging FIR and continued thereafter on different dates is highly doubtful when the report itself has been lodged on 1.7.2010 which is more than 56 days after alleged last incident of rape on 4.5.2010. The report of FSL is not reliable as the vaginal swab, clothes of the prosecutrix and appellant were collected after more than 1 & ½ months of the last incident of alleged rape and it is wholly improbable that vaginal swab would contain any male sperm or undergarments of the appellant or the prosecutrix would contain seminal stains. Therefore, no reliance can be placed on such doubtful evidence of FSL. 6. Per contra, learned counsel for the State has supported the impugned judgment of conviction and order of sentence and argued that the prosecution has proved by leading clinching and reliable evidence of prosecutrix's age as 20th July, 1994. He submits that the prosecution has proved the school records, certificate particularly the entries made in the dakhil kharij register, date of birth register, mark sheet, transfer certificate and the oral evidence of Sahab Verma (P.W.18), Head Master of the School. He further submits that in the hospital records, proved by the custodian of records of the hospital namely Sister Sharli (P.W.19), Medical Officer of Karuna Hospital and father of the prosecutrix Ramnaresh (P.W.11) that on 20th July, 1994, Kewara Bai, wife of Ramnaresh had given birth to a girl child. The discrepancy is only with regard to the month and either of the dates taken as correct, the prosecutrix, in any case, was less than 16 years of age on the date of commission of offence. He submits that according to the prosecution, she was subjected to rape on three occasions. The first incident an year before the date of lodging of FIR, the second incident being that in the month of December, 2009 and third incident on 4th May, 2010. The prosecutrix was a minor girl of tender age. The appellant having taken her obscene video and photographs, threatened her not to disclose the incident.
The first incident an year before the date of lodging of FIR, the second incident being that in the month of December, 2009 and third incident on 4th May, 2010. The prosecutrix was a minor girl of tender age. The appellant having taken her obscene video and photographs, threatened her not to disclose the incident. It was only when the video clipping were distributed in the open market and the father and brother of the prosecutrix came to know about the incident, then the prosecutrix disclosed that because of threat given to her and that she was being blackmailed by showing obscene video recording and clipping, she could not disclose the incident to anyone. Therefore, delay, if any in lodging FIR, has been satisfactorily explained by the prosecution. It is next contended the medical evidence proves that prosecutrix was subjected to sexual intercourse. Her hymen was found torn and the medical examination report in Ex.P-8 proved by Dr. Meeta Dey (P.W.7) and FSL report in Ex.P-33 corroborate the prosecutrix version of she having been subjected to sexual intercourse by the appellant. As the prosecutrix was minor, even if it were to be accepted for the sake of arguments that the prosecutrix was having sexual relation with the appellants & ½ years before report was lodged, tacit consent would not above the appellant of his criminal liability. 7. I have considered the rival submissions made by learned counsel for the parties and perused the records of the sessions trial. 8. FIR in Ex.P-14 has been proved by the prosecutrix (P.W.10) who has stated in para-5 of her evidence that she had reported the incident in Police Station-Chhawni and has proved her signature in Ex.P-14. Inspector V.D. Nand (P.W. 14) has stated that on the report of the prosecutrix given in the police station on 1.7.2010, he had recorded FIR in Ex.P-14 and has proved his signature. In the FIR recorded at the instance of prosecutrix, it has been elaborately stated by the prosecutrix regarding the incident of rape committed on her by the appellant at different point of time. According to FIR, about an year before the date of incident, when prosecutrix used to go to market, class, school, the appellant used to chase her and insisted her to meet him.
According to FIR, about an year before the date of incident, when prosecutrix used to go to market, class, school, the appellant used to chase her and insisted her to meet him. She was taken near a canal towards Housing Board in a dilapidated building where she was asked to change her clothes and then she was taken to Jamul Hills and after administering treat, the appellant committed sexual intercourse and threatened not to disclose the incident. According to this FIR, the appellant again caught hold of her in the month of December, 2009 and insisted her to come along with him. When the prosecutrix denied, her photograph, while changing clothes, were displayed in the mobile and thus she was compelled on this threat and then she was threatened that if she does not go along with him, the video clippings would be shown in the house and also in the open market and on this threat and blackmailing, she unwillingly went along with him to Laxmi Lodge where again without her consent she was raped and threatened. Third incident of rape as stated in FIR is of 14.5.2010. The appellant again approached her and she was taken to a hotel where she took snacks and cold-drink and thereafter when she was not feeling well she was taken in the motorcycle to Sector Jayanti Stadium Near bushes and she was again subjected to rape. Video clipping of this rape were recorded by him and she was threatened. Afraid of this, the prosecutrix could not disclose the incident and suffered rape. 9. The, prosecutrix in her evidence has categorically stated regarding commission of rape on her by the appellant on three occasions, as recorded in the FIR. In her evidence, she has stated regarding three incidents. The first incident of commission of rape is stated to be of the year 2008, by deposing that she was taken towards canal near Housing Board and in a dilapidated house, she was asked to change her clothes. Appellant took videograph while changing clothes and then she was taken behind Jamul Hills in the motorcycle and there, the appellant, despite resistance and denial, committed rape. She further stated that the appellant threatened not to disclose the incident. This first incident of commission of rape on the prosecutrix is stated to have taken place in the year 2008.
Appellant took videograph while changing clothes and then she was taken behind Jamul Hills in the motorcycle and there, the appellant, despite resistance and denial, committed rape. She further stated that the appellant threatened not to disclose the incident. This first incident of commission of rape on the prosecutrix is stated to have taken place in the year 2008. There is however a dispute with regard to the time of the first incident of alleged rape. Though in the FIR, the prosecutrix has stated that the appellant had started chasing her since the time of marriage of appellant's brother namely Mohd. Javed, in respect of which invitation card was received one year before, in her Court statement, the prosecutrix has deposed that the first incident of rape occurred in the year 2008 when she met the appellant on the occasion of marriage of his brother Javed. In para-1 & 2 of her evidence, the prosecutrix states regarding first incident of rape in the year 2008. Mohd Jalil (D.W.1), father of the appellant, has stated that marriage of his son Javed was solemnized on 4.10.2009 and has also produced the invitation card marked as Ex.D-3. He has stated that in the year 2008, no marriage had taken place in his family. In his cross-examination, he has again reiterated that appellant Junaid had come to attend the marriage of saved in the month of October, 2009 and stayed there for 8 days and has denied suggestion that the card was printed recently. From the evidence of the prosecutrix, it appears that the prosecutrix, at the time of deposing in the Court, had some doubt with regard to year in which the marriage of Javed had taken place as she has connected the first incident with that marriage. Therefore, for this reason, she has stated that the first incident of rape happened in the year 2008, whereas in the FIR which is proved to have been lodged by her and recorded in the police station, she has stated regarding solemnization of marriage of Javed one year before the date of lodging of FIR i.e. in the year 2009, which has been stated by Mohd. Jalil (D.W.1) also.
Jalil (D.W.1) also. The evidence of the prosecutrix that when the appellant came to attend the marriage of his brother Javed, he first met the prosecutrix and since then he was chasing the prosecutrix is proved from the evidence of the prosecutrix. The prosecutrix connects the first incident with the period during which the appellant had come to attend the marriage of his brother Javed. Therefore, in substance, what the prosecutrix has categorically stated in the FIR and has to be believed that she first met the appellant at the time of marriage of appellant's brother. Therefore, merely because the prosecutrix has stated that the marriage was solemnized in the year 2008, the entire story of the prosecution is not rendered doubtful. 10. The prosecutrix has very clearly stated that ever since the appellant met at the time of marriage of Javed, he was chasing her and making all attempts to get an access. She has stated that she was taken by him towards Housing Board and in a dilapidated vacant building, she was asked to change her clothes and videograph were taken and then she was taken on motorcycle behind Jamal Hills where, against her wishes, appellant committed sexual intercourse. She has further stated that she was threatened also. The place and the manner in which the prosecutrix was subjected to rape in the first incident has been reliably stated by her in her evidence. The second incident when the appellant committed rape on the prosecutrix, as stated in the FIR, is that in the month of December, 2009, appellant again came to Bhilai and insisted the prosecutrix to come along with him to Laxmi Lodge. When the prosecutrix denied, the appellant showed her obscene video clipping showing the prosecutrix changing her clothes and threatened her that if she does no come along with him, the video clipping would be shown in her house and also distributed in the market. On this threat and blackmail, the prosecutrix was compelled to accompany the appellant to Laxmi Lodge where again, without her consent, she was subjected to rape and again threatened not to disclose the incident otherwise appellant would injure her brother and also get obscene videograph of her sister prepared.
On this threat and blackmail, the prosecutrix was compelled to accompany the appellant to Laxmi Lodge where again, without her consent, she was subjected to rape and again threatened not to disclose the incident otherwise appellant would injure her brother and also get obscene videograph of her sister prepared. In her evidence, the prosecutrix has stated regarding the same incident in her para-3 of her - evidence and has clearly stated regarding rape committed on her by the appellant in Laxmi Lodge. She has clearly stated that obscene video was shown and she was blackmailed. She was also threatened that if she does not go along with appellant, same treatment would be meted out to her sister. She has clearly stated that on the fear of circulation of those photographs, she had to accompany the appellant and then rape was committed on her. 11. The third and the last incident of commission of rape on the prosecutrix, as stated by the prosecutrix in FIR as well as in the Court evidence is that on 14.5.2010 she was again intercepted by the appellant, asked to go along with him on his motorcycle. When she denied, she was again threatened regarding possession of obstene material with him. She was taken to a hotel where, after consuming cold-drink, the prosecutrix was taken towards bushes near Sector-6 Jayanti Stadium and there again, she was subjected to rape. The prosecutrix has stated that when she realized that video is being prepared, it was objected by her. The prosecutrix has clearly stated that due to the threat of the appellant, she did not disclose the incident to anyone. Lastly, she has stated that after about two months, when her brother enquired about an obscene video clipping being displayed in the colony, then at that stage, she finally disclosed the incident to her family, whereafter, FIR was registered in the police station. 12. In her cross-examination, the prosecutrix has explained the reasons for non-disclosure of the incident, stating that she was frightened to see her obscene video clippings as the appellant used to threat that he will subject her sister also to the same treatment, she did not disclose the incident. In her further cross-examination, the prosecutrix has reiterated regarding commission of rape on three occasions. 13.
In her further cross-examination, the prosecutrix has reiterated regarding commission of rape on three occasions. 13. Apart from the discrepancy with regard to the time of the first incident as stated in the FIR and in her evidence in the Court, credibility and reliability of her evidence was sought to be impeached mainly on two submissions. Firstly that the prosecutrix did not disclose this until 1st of July, 2010 i.e. more than one year after the first incident, more than 6 months after the second incident and more than 1 & ½ months after the third incident. Learned counsel for the appellant vociferously contended that this long delay for which there is no satisfactory explanation put forth by the prosecutrix in her evidence, the entire story of the prosecution is rendered doubtful. Viracity of the prosecutrix's evidence of having been subjected to rape by the appellant on three occasions is also sought to be questioned by submitting that the prosecutrix did not offer any resistance nor attempted to run away nor called for help. She neither attempted to assault or desist by use of force, the alleged act of rape which further renders the story of the prosecution highly doubtful. 14. While there is consistency in the judicial opinion in plethora of decisions that ordinarily the delay in filing FIR is to be looked in favour of the accused unless satisfactorily explained by the prosecution, in cases of sexual offence, their Lordships in the Supreme Court have held that a different approach is required to be adopted while testing the credibility and veracity of allegation of commission of sexual offence, including rape. In the case of Satypal Vs. State of Haryana, AIR 2009 SC 2190 their Lordships in the Supreme Court, while dealing with the aspect of delay in a case involving commission of offence under Section 376 of the IPC, observed as under : "20. This Court can take judicial-notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon." In yet another decision in the case of State of Himachal Pradesh Vs. Prem Singh, AIR 2009 SC 1010 it was held : "6.
Delay in lodging the first information report in a case of this nature is a normal phenomenon." In yet another decision in the case of State of Himachal Pradesh Vs. Prem Singh, AIR 2009 SC 1010 it was held : "6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction." 15. Applying the aforesaid principles, the delay, in the facts and circumstances of the present case is not fatal, having been duly explained from evidence the of the prosecutrix and the circumstance that the prosecutrix was a minor girl. 16. Minute scrutiny of the evidence of the prosecutrix and other proved circumstances of the case satisfies this Court that the delay in lodging FIR stands satisfactorily explained. The prosecutrix has come out with the case that in the very first incident of rape obscene video clippings were taken by the appellant and thereafter the prosecutrix was blackmailed and threatened by the appellant that if she discloses the incident to anyone, the video clippings would be displayed to all. The prosecutrix has emphatically stated this fact, as the reason, why she was afraid, not only of disclosing the incident to anyone, as also the reason why every time she had succumbed to the lust and sexual desire of the appellant. 17. This explanation offered by the prosecutrix is also corroborated from the evidence led by the prosecution proving recovery of obscene CDs containing the pictures of the prosecutrix, from the possession of the appellant. Investigating Officer U.B.S. Chauhan (P.W. 16) has stated that he had taken memorandum statement of the appellant on 2.7.2010 in the presence of witness and recorded it in Ex.P-23. On the basis of his memorandum obscene CD was recovered from the box kept in the house of the appellant which was seized vide seizure memo Ex.P-24.
Investigating Officer U.B.S. Chauhan (P.W. 16) has stated that he had taken memorandum statement of the appellant on 2.7.2010 in the presence of witness and recorded it in Ex.P-23. On the basis of his memorandum obscene CD was recovered from the box kept in the house of the appellant which was seized vide seizure memo Ex.P-24. He has stated that in the presence of witnesses, the CD was played and a panchnama of the same was prepared in Ex.P-25. Ram Narayan (P.W. 13), independent witness, has proved recording recovery of memorandum in Ex.P-23. He has stated that in his presence, memorandum of the appellant was recorded and then on the basis of this memorandum a CD and the motorcycle was seized from the house of the appellant vide seizure memo in Ex.P-24 on 2.7.2010. Sonu (P.W. 15). He has also stated that the CD was displayed in which the prosecutrix was seen having intercourse with a male in respect of which a panchnama in Ex.P-25 was prepared. Sonu (P.W. 15) has also stated that in his presence the appellant's memorandum was recorded in Ex.P-23 and thereafter an obscene video CD and a motorcycle was recovered from the house of the appellant vide seizure memorandum in Ex.P-24. He further stated that the seized CD was displayed in the police station and a panchnama was prepared in Ex.P-25. Both these two witnesses Ram Narayan (P.W.13) and Sonu (P.W. 15) have thus proved recording of memorandum of the appellant in Ex.P-23, recovery of obscene CD from the house of the appellant vide Ex.P-24 and contents of the same upon its display recorded in panchnama in Ex.P-25. The witnesses have said that the CD contained obscene scene and the prosecutrix is seen in sexual intercourse with a male. Thus the evidence of Investigating Officer UBS Chauhan (P.W. 16) is fully proved. The Investigating Officer DBS Chauhan (P.W.16). Ram Narayan (P.W.13) and Sonu (P.W. 15) all have been subjected to detailed cross-examination and nothing could be elicited from their evidence in the cross-examination to doubt veracity of their evidence of recording of memorandum and recovery of obscene CD and the contents of obscene CD showing prosecutrix in a position of sexual intercourse. 18. Sonu (P.W. 15), brother of the prosecutrix has also deposed that he came to know from his friend Dayaram Thakur that an obscene video clipping of his sister is being sold.
18. Sonu (P.W. 15), brother of the prosecutrix has also deposed that he came to know from his friend Dayaram Thakur that an obscene video clipping of his sister is being sold. Thereafter, he had collected that video clipping from Dayaram and after seeing it, he found that it related to his sister. He stated that for about one year his sister was keeping silence and was in sorrow and used to weep without disclosing anything. She lost her health and also failed in the examination. Dayaram Thakur (P.W. 5) has also stated that he came to know about video clipping of the sister of Sonu and substantially corroborates the evidence of Sonu with regard to they coming to know about the sale and display of obscene CD of the prosecutrix. 19. The aforesaid evidence of the appellant possessed of obscene video CD of sexual intercourse of the prosecutrix lends corroboration to the explanation offered by the prosecutrix for her inability to resist the appellant and fear of disclosure of the incident until it became open and inquired from her family members. The prosecutrix was a girl of tender age and had fallen in the trap of the appellant, blackmailed by showing obscene video and at the same time, threatened in many ways. This reliable and trustworthy evidence led by the prosecution fully and satisfactory explains why the prosecutrix despite being subjected to rape time and again, was afraid of disclosing the incident to anyone and at the same time subjected to sexual exploitation by obtaining her consent by coercion and threat. 20. Dr. Meeta Dey (P.W.7) who examined the prosecutrix on 1.7.2010 has stated that hymen was torn and the prosecutrix was found habitual to sexual intercourse. The submission of learned counsel for the appellant is that this evidence that the prosecutrix was habitual to sexual intercourse renders the story of rape committed on her highly doubtful as she was unchaste girl. In the case of Munnaour alias Jhannan Vs. State of U.P., (2013) 11 SCC 684 it was held by the Supreme Court that assuming that prosecutrix was used to sexual intercourse, the same could not be a reason to disbelieve her version that she was raped by the accused in the circumstances narrated by her. On the contrary, the prosecutrix evidence of she being subjected to repeated sexual intercourse is corroborated from the medical evidence.
On the contrary, the prosecutrix evidence of she being subjected to repeated sexual intercourse is corroborated from the medical evidence. In the case of Narender Kumar Vs. State (NCT of Delhi), (2012)7 SCC 171 it has been held by the Supreme Court that once the evidence of the prosecutrix is found to be trustworthy and reliable, it cannot be discarded merely because her statement is not corroborated by the medical evidence. In the peculiar facts and circumstances of the present case, the medical evidence that her hymen was torn, only lends corroboration to the testimony of the prosecutrix that she was subjected to sexual intercourse. 21. Though, a feeble attempt has been made to discard the testimony of the prosecutrix on the submission that there existed enmity between the family of the prosecutrix and that of the appellant, therefore, there was strong motive for false implication, there is no clinching evidence appearing either from the evidence of the prosecution or from the evidence of defence witnesses or from any other established circumstances of the case that prosecutrix had any motive to falsely implicate the appellant. It is difficult to accept, as general proposition that in order to falsely implicate the parents and family members of the accused, the prosecutrix would come out with a concocted story of prosecutrix, a young girl, raped by the appellant. Though Mohd. Jalil (D.W.1) father of the appellant has deposed in his evidence that a report was lodged against the family members of the prosecutrix in the police station, the said report is subsequent to lodging of FIR. Moreover in para-2 of his evidence, Mahendra Kumar (D.W.2) has deposed that later on, Mohd. Jalil had expressed that he did not want any action against Sonu, brother of the prosecutrix. Only on this evidence, it cannot be held that there was any strong motive for the prosecutrix or her family members to go to such an extent of fabricating false case of rape by the appellant on the prosecutrix. 22. The prosecution has proved by overwhelming evidence that on the date of incident, the prosecutrix was less than 16 years of age. According to the case of the prosecution, found proved by this Court, the first incident of rape happened in and around the month of July, 2009. 23. The prosecutrix in her evidence has stated 20th June, 1994 as her date of birth.
According to the case of the prosecution, found proved by this Court, the first incident of rape happened in and around the month of July, 2009. 23. The prosecutrix in her evidence has stated 20th June, 1994 as her date of birth. The mark sheet of High School examination was seized by the police in Ex.P-17 in which the date of birth of the prosecutrix has been recorded as 20th June, 1994. In the original mark sheet (Ex.P-17A) also, her date of birth has been recorded as 20th June, 1994 copy of which has been placed on record and exhibited as Ex.P-17-C. She has stated that she was born in Karuna Hospital at Bhilai. The father of the prosecutrix Ramnaresh (P.W.11) has stated that at the time of incident the prosecutrix was around 13-14 years of age. He has stated that he is illiterate. He has further deposed that prosecutrix was born in Karuna Hospital at Bhilai where his wife Kevra Bai alias Durga Bai remained admitted for 7 days till her discharge. This witness has further stated that when he had gone to get the prosecutrix admitted in the school, he had not stated the date of birth to the teacher and date of birth was recorded on approximate basis. 24. Sahab Sharma (P.W. 18) Head Master of Janta Primary School, Gandhi Chock, Camp-2, Bhilai, Chhawani, has stated in his evidence that he is posted as teacher in that school since 5.7.1977. He has stated that in the birth register, name of the prosecutrix as daughter of Ramnaresh has been entered at Sr. No.4745 recording her date of birth as 20th June, 1994. The relevant entries in dakhil kharij register (Ex.P-36) its photocopy (Ex.P-36C) has also been proved by this witness, wherein the date of birth of the prosecutrix has been recorded as 20th June, 1994, date of admission in the school as 30th June, 1999 and date of leaving the school as 26th April, 2004. Even though this witnesses has admitted that though separate declaration of recording date of birth is ordinarily taken it is not available in the present case. It has been convincingly proved by production by original records of the school containing date of birth of the prosecutrix as 20th June, 1994. There is no reason to disbelieve the evidence of this witness, as also entries made in the school records and register. 25.
It has been convincingly proved by production by original records of the school containing date of birth of the prosecutrix as 20th June, 1994. There is no reason to disbelieve the evidence of this witness, as also entries made in the school records and register. 25. Sister Sherli (P.W. 19), Medical Officer Karuna Hospital has also proved entries made in the original delivery register maintained in the year 1993-94. She has stated that in that register, in the month of July at Sr. No. 80 dated 20th July, 1994 entries regarding birth of a girl child of Kewra Bai, wife of Ramnaresh has been made. She has proved the entries made by Sister Clamandina in Ex.P-37. Photocopy of the same is exhibited as Ex.P-13C. The certificate of date of birth issued by her in Ex.P-38 has also been proved. She has stated that Sister Clamandina, who made relevant entries, has already left the hospital 8 to 10 years before. 26. An argument has been raised as there is discrepancy in the age of the prosecutrix, as stated in the oral evidence of her father Ramnaresh (PW11), entries made in the school register and that recorded in the hospital register, the evidence with regard to exact age of the prosecutrix has not been proved by the prosecution beyond reasonable doubt. The said arguments is liable to be rejected because either of the dates recorded in school register or one recorded in the hospital register are taken into consideration, the age of the prosecutrix was definitely less than 16 years on the date of alleged commission of offence of rape in the year 2009 and then on 4.5.2010. 27. In view of the above analysis of the evidence on record, it is proved beyond doubt that the prosecutrix was a minor, there was no free consent, but she was threatened and blackmailed by showing her obscene video CD and clippings by the appellant and then subjecting her to rape on as many as three occasions. 28. Resultantly, the appeal fails and is hereby dismissed.