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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment Reserved on 09.07.2018
Judgement Delivered on 17.07.2018
CRA No. 672 of 2002

• Manoj Kumar Singh S/o Shri Krit Narayan Singh, aged about 20 years
Rajput, Resident of Village Taparkela P.S. Darima, District- Sarguja
(C.G.).

—- Appellant

Versus

• State of Chhattisgarh Through- P.S. Darima, District- Sarguja
(Chhattisgarh).

—- Respondent

_

For Appellant : Mr. Arun Kochar, Advocate.
For Respondent/State : Mr.Adhiraj Surana, Dy. G. A.
——————————————————————————————————-

Hon’ble Shri Justice Gautam Chourdiya
Judgment (C.A.V.)

1. This appeal arises out of the judgment of conviction and order of

sentence dated 05.06.2002 passed by the learned 3rd Additional

Sessions Judge, Ambikapur, Sarguja in S.T. No. 138/2000

convicting the accused/appellant under Section 376(1) of IPC

and sentencing him to undergo RI for seven years.

2. Brief facts of the case are that on 2.7.1999 FIR (Ex. P/2) was

lodged by mother of the prosecutrix namely Hirmaniya Bai PW-4

alleging in it that prosecutrix about 10 to 12 years of age is her

daughter, who is unsound mind from birth. She states that
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approximately 4 to 5 months before lodging the FIR,

accused/appellant- Manoj Kumar Singh taking advantage of

unsound mind prosecutrix and committed sexually intercourse

with her, as a result of which the prosecutrix became pregnant. It

is also stated that when the pregnancy developed, the villagers

came to know about the incident and then a Panchayat was held

in the village. After enquiry by Panchayat before Kutru Bai (PW-1)

and Ram Kumar Yadav (PW-2), the prosecutrix narrated the

name of this accused/appellant stating that he has committed

rape on her, and because of which, the FIR was lodged against

this accused/appellant bearing FIR No. 40/1999 for the offence

punishable under Section 376(1) of IPC. The prosecutrix was

medically examined by Dr. Pratibha Jain (PW-9) vide Ex. P/6-A

who found prosecutrix was unsound mind girl and her secondary

sex organ has fully developed and was carrying 28 weeks

pregnancy. Dr. M. K. Jain (PW-11) Radiologist examined the

prosecutrix about her age (ExP/8) and he opined that her age is

in between 17 to 19 years. The accused/appellant was also

medically examined by Dr. O.P. Shrivastava ( PW-10) and was

found to be capable of performing sexual intercourse.

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

examined as many as 21 witnesses. Statement of the

accused/appellant was recorded under Section 313 of the Code

of Criminal Procedure, in which he denied the circumstances

appearing against him in the prosecution case, pleaded

innocence and false implication. The trial Court has also

examined one witness- Ruchanram as a court witness.

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4. The trial Court after hearing counsel for the respective parties

and considering the material available on record by the impugned

judgment convicted and sentenced the accused/appellant.

5. Learned counsel for the appellant/accused submits that the

prosecutrix has not made any specific allegation against the

appellant regarding rape on her, if any sexual intercourse made

by the accused/appellant, it is a matter of consent between

accused/appellant and prosecutrix. A radiologist report also

shows that the prosecutrix was not a minor girl at the time of

incident and her mental illness was also not examined by any

medical expert.

6. On the other hand, supporting the impugned judgment learned

counsel for the State submits that conviction of the

accused/appellant is strictly in accordance with law and there is

no illegality in the same warranting interference by this Court. He

submits that present is a case where an unsound mind girl has

been subjected to sexual intercourse by the appellant and as a

result of which she became pregnant. A D.N.A. report Ex.P/18

given by PW-20 Dr. S. C. Shukla, proved that the

accused/appellant is the biological father of that fetus(Child),

therefore, he has rightly been convicted and sentenced by the

trial Court.

7. Heard learned counsel for the parties and perused the material

available on record.

8. Firstly the court would consider the facts produced by the

prosecution regarding the age of the prosecutrix. Hirmaniya
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Yadav (PW-4), the mother of the prosecutrix has stated in

paragraph 1 of her deposition that her daughter was 10 to 12

years of age at the time of incident, but in cross-examination, she

has admitted that she does not have any written document

regarding the age of the prosecutrix. Kutru Bai (PW-1) has

admitted in para- 5 of her deposition that at the time of incident,

the age of the prosecutirx is 20 years approximately and

Sonikaliya Bai (PW-3) also stated in para-2 of her deposition that

at the time of incident, the age of the prosecutrix is 20 years

approximately. According to the above-mentioned facts stated by

the villagers and the mother of the prosecutrix, the age of the

prosecutrix on the date of incident is not below than 18 years.

9. The radiologist Dr. M. K. Jain (PW-11) did ossification test

regarding the age of the prosecutrix and found the age of the

prosecutrix between 17 to 19 years at the time of incident vide

ExP/8.

10. In view of the entire oral evidence and ossification test vide

Ex.P/8, it is proved that the prosecutrix was not below than 18

years of age.

11. Regarding unsound mind of the prosecutrix, PW-4 Hirmaniya Bai,

the mother of the prosecutrix, in para-1 of her deposition has

stated that the prosecutrix was insane from the birth. Kutru Bai

(PW-1) deposed in para-1 that prosecutrix was not mentally fit

from her child hood and that version of prosecution witness is not

challenged in her cross-examination. Kendal Ram(PW-7) in Para-

1 3 has also deposed that the prosecutrix was insane from her

birth. A common prudence of a citizen can also describe the
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unsound mind of a person.

12. PW-9 Dr. Pratibha Jain vide Ex. P/6, found prosecutrix is not

mentally fit. She is carrying pregnancy of 28 weeks. In her cross-

examination she admitted regarding mental illness of the

prosecutrix but was not given any reason on this report. PW-21

Dr. (Smt.) S. P. Jaiswal also stated in para 5 of her deposition

that when she examined the prosecutrix, she did not appear to be

of sound mind by her conduct and behavior. Dr. Azad Bharat

(PW/13) also stated in para 6 of his deposition that the

prosecutrix was not seen normal because she was abnormal.

Even when the prosecutrix was examined in the Court room, she

was abnormal, mentioned in the judgment of the trial Court.

13. Dr. M. K. Goyal (PW-14) sent aborted fetus for DNA test with the

blood sample of prosecutrix and accused/appellant to Central

Forensic Science Laboratory, Calcutta. A report Ex.P/18 given by

PW-20 Dr. S. C. Shukla, proved that the accused/appellant is the

biological father of that aborted child. DNA report (ExP/18) is also

a conclusive proof given by the prosecution that the

accused/appellant was the biological father of the aborted child.

14. As discussed above, it is found that the prosecutrix was unsound

mind and she was not in a position to understand her wellbeing,

because of her mental condition, the accused/appellant took

advantage of her and made relation with her.

15. Looking to the mental condition of the prosecutrix, it can not be

said that the prosecutrix must have given her consent or she was

consenting party to the offence, and there is no specific evidence
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regarding the consent given by the prosecutrix.

16. Thus, considering the overall evidence on record, this Court is of

the opinion that the prosecution on the basis of evidence

adduced by it has been successful in proving that it is the

accused/appellant committed rape with the prosecutrix and

clearly proved guilty of offence under Section 376 (1) of IPC.

Being so, his conviction under Section 376 (1) of IPC is based on

just and proper appreciation of the evidence and deserves to be

affirmed.

17. In the result, the appeal being without any substance fails and is

accordingly, dismissed.

18. The appellant is reported to be on bail, his bail is canceled. The

trial Court shall issue a non-bailable warrant of arrest against the

appellant and after arrest, appellant be sent to jail immediately for

serving the remaining part of the sentence.

Sd/-

(Gautam Chourdiya)
Judge

amita