NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 1094 of 2015

1. Ajjuram Deshmukh son of Late Tilakram Deshmukh, aged about
27 years, R/o village Aroud, Police Station Balod, Civil and
Revenue District, Balod, CG

—- Appellant

Versus

1. State of Chhattisgarh through the Station House Officer, Police
Station Balod, District Balod.

—- Respondent

For Appellant – Shri GVK Rao, Advocate.
For Respondent. – Shri Ravindra Agrawal, PL

Hon’ble Shri Justice Pritinker Diwaker

Judgment on Board

08.09.2018

This appeal is directed against the judgment and order dated

11.09.2014 passed by Special Sessions Judge, Balod in Special Sessions

Trial No. 48/2013 convicting the accused/appellant under Sections 376

(1) and 506-II IPC and sentencing him to undergo rigorous

imprisonment for ten years with fine of Rs. 25,000/- u/s 376 (1) and

rigorous imprisonment for one year u/s 506-II IPC, plus default

stipulations.

2. Facts

of the case in brief are that on 04.07.2012, FIR (Ex. P-3) was

lodged by the prosecutrix aged about 14 years at the relevant time

alleging that on 16.06.2012 at 2 PM when she was standing near the

shop of one Shankar Deshmukh, accused/appellant came there, gave

her Re. 1/- for getting disposable glass and when she was returning

after handing over the said item, he caught hold of her, shut her
mouth, took inside, made her lie on the cot, up-turned her skirt, slid

down her underwear and committed forcible sexual intercourse with

her even after the resistance being made. It is alleged that as the

accused had threatened her of life, she did not report the matter to the

police immediately. Based on this FIR, offences under Sections 376,

506-II IPC and 3 (2) (v) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) (for convenience “the Special Act”) were

registered against him. Prosecutrix was medically examined by Dr.

Manjulata Ganwre (PW-1) who gave her report Ex. P-1. Evidence of this

witness shows that hymen of the prosecutrix was ruptured and old tear

was present on it and her age at the relevant time has been opined to

be 14-15 years. For exact determination of age, this witness had

referred the prosecutrix for radiological examination. The Court below

framed the charge against the accused/appellant under Sections 376,

506-II IPC and 3 (2) (v) of the Special Act.

3. So as to hold the accused/appellant guilty, prosecution has

examined 09 witnesses in support of its case. 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.

4. After hearing the parties, the trial Court acquitted the

accused/appellant of the charge under the Special Act but has

convicted and sentenced him as mentioned above in paragraph No.1 of

this judgment.

5. Counsel for the accused/appellant submits that there is an

inordinate delay of 18 days in lodging the FIR which has not been
properly explained by the prosecution. He further submits that there is

no legally admissible evidence to show that on the date of incident the

prosecutrix was minor. According to him, it is apparent from the

statement of DW-1 that at the time of incident the prosecutrix was in

the school and therefore, there was no occasion for the appellant to

molest her.

6. On the other hand, counsel for the respondent/State supports the

judgment impugned and submits that the findings recorded by the

Court below convicting and sentencing the accused/appellant as

described above are strictly in accordance with law and there is no

infirmity in the same.

7. Heard counsel for the parties and perused the evidence on

record.

8. Prosecutrix (PW-3) has stated that on the date of incident at

about 2 PM when she had gone to the shop of one Shankar Deshmukh,

the accused/appellant came there, gave Re. 1/- to her for bringing

disposable glass and when she went to him for handing over the said

item, he caught hold of her, dragged her inside, removed her and that

of his own clothes and committed forcible sexual intercourse with her.

He is also stated to have threatened her of life in case she made a

disclosure of the incident to anyone and that on account of being in

fear she disclosed the incident to her mother after four days and then

the report was lodged. In cross-examination, this witness remained firm

to what she has stated in the examination-in-chief. Dr. Manjulata

Ganwre (PW-1) is the witness who medically examined the prosecutrix

and gave her report Ex. P-1 stating that she noticed rupture on hymen
with two old tear marks. Age of the prosecutrix, according to this

witness, was in between 14-15 years. For determination of exact age of

the prosecutrix, she was referred to the radiologist. Tulsiram Chandel

(PW-2) is the Patwari who prepared spot map (Ex.P-2). Revti Bai (PW-4)

and Prushottam Bhuarya (PW-5) – the parents of the prosecutrix have

duly supported the case of the prosecution stating that on the date of

incident their daughter (prosecutrix) had told them about being

subjected to forcible sexual intercourse by the accused/appellant on

the pretext of getting disposable glass. No discrepancy on material

particulars is noticed in their statements. Dr. S.K. Soni (PW-6) is the

witness who medically examined the accused/appellant and gave his

report Ex. P-9 stating that he was fully capable of performing sexual

intercourse. Dr. B.N. Dewangan (PW-7) is the radiologist and according

to the opinion given by him, the prosecutrix was aged in between 15

and 16 years of age at the relevant time. He has specifically denied

that she was 18 years of age at that time. D.P. Thakur (PW-8) is the

investigating officer who has duly supported the case of the

prosecution. Hemlal Sahu (PW-9) is the witness who assisted in the

investigation. T.R. Komiya (DW-1) – the Principal of the school has

stated that on the date of incident presence of the prosecutrix was

recorded in the school and that without his permission no student could

go outside the school in the school hours.

9. Having heard counsel for the parties and gone through the

evidence available on record particularly that of the prosecutrix, it is

apparent that on the date of incident the accused/appellant gave Re.

1/- to the prosecutrix to bring disposable glass, dragged her inside his

house, removed her and that of his own clothes and committed forcible
sexual intercourse with her. Evidence also shows that after committing

the offence, he also threatened her of life in case she disclosed the

incident to anyone. Prosecutrix has also stated that only on account of

fear the delay has occasioned in lodging the report. Since the

prosecutrix was medically examined on 4.7.2012 i.e. about 18 days

after the incident, the opinion of the doctor that old tear was found on

her hymen, appears to be justified as in the interval of 18 days the

injuries must have been healed up. As regards age, the doctor who

medically examined her has opined her age at the relevant time in

between 14 and 15 years, and the radiologist has opined it to be in

between 15 and 16 years, it can safely be said that on the date of

incident she was below 18 years of age. Radiologist has even

specifically denied that the age of the prosecutrix at the relevant time

was 18 years.

10. Thus in view of the evidence of the witnesses, particularly that

of the prosecutrix (PW-3), the doctor (PW-1) and the radiologist (PW-7),

this Court is of the considered opinion that the trial Court was fully

justified in convicting the accused/appellant under Sections 376 (1) and

506-II IPC and sentencing accordingly as described above. No illegality

or infirmity in the judgment impugned is noticeable and being so it

deserves affirmation by this Court by dismissing the appeal.

11. In the result, the appeal being without any substance is liable

to be dismissed and it is dismissed as such. As the appellant is already

is in jail, no order regarding surrender etc. is needed.

Sd/-

(Pritinker Diwaker)

Judge
Jyotishi