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
• State of Chhattisgarh Through- P.S. Darima, District- Sarguja
For Appellant : Mr. Arun Kochar, Advocate.
For Respondent/State : Mr.Adhiraj Surana, Dy. G. A.
Hon’ble Shri Justice Gautam Chourdiya
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
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.
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
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
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
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
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
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
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
17. In the result, the appeal being without any substance fails and is
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.