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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1005 of 2011
 Rajkumar Toppo S/o Madhuram Toppo, aged about 23 years,
Occupation – Labour, R/o village – Kurwan, Indira Awas, Police Station
Vishrampur, District Sarguja (C.G.)

—- Appellant
Versus

 State of Chhattisgarh Through the Station House Officer, Police
Station – Vishrampur, District Sarguja (C.G.)
—- Respondent

For Appellant. – Ms. Upasana Mehta under the authority of
Shri Dharmesh Shrivastava, Advocate.

For Respondent – Shri Lav Sharma, P.L.

Hon’bel Shri Justice Pritinker Diwaker

Judgment On Board
08/09/2018

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

sentence dated 30.09.2011 passed by I Additional Sessions Judge,

Surajpur, District Sarguja, in S.T. No.542/2010 convicting the

accused/appellant under Sections 363, 366 and 376 (2) (f) IPC

sentencing him to undergo R.I. for seven years with fine of Rs.50/-, R.I.

for seven years with fine of Rs.50/- and R.I. for ten years with fine of

Rs.50/-, plus default stipulation respectively.

02. As per the prosecution case, on 14.08.2010 FIR (Ex.P/3) was

lodged by Samal Sai (PW/2), father of the prosecutrix (PW/1), alleging

in it that the prosecutrix aged about 12 years is missing from

09.08.2010. Based on this FIR, on 13.08.2010 the prosecutrix PW/1

was recovered from the custody of the accused/appellant and offence

under Sections 363 and 376 IPC was registered against him. On
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14.08.2010 the prosecutrix was medically examined by Dr. (Smt.)

Rashmi Kumar (PW/3) who gave her report Ex.P/4 noticing that

secondary sexual characters were well developed, no any external

injury was noticed, vagina was normal, hymen was raptured, bleeding

occurred due to menstrual, no slides could be taken due to

menstruation and vagina was easily admitting one finger. The Doctor

has further opined that the sexual intercourse was done with her and

she was habitual for sexual intercourse. After investigation, charge

sheet was filed against the accused/appellant under Sections 363 and

376 IPC, however, the trial Court has framed the charges under

Sections 363, 366 and 376 (2) (f) IPC.

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

examined as many as 05 witnesses. Statement of the

accused/appellant was also recorded under Section 313 of Cr.P.C. in

which he denied the circumstances appearing against him in the

prosecution case, pleaded innocence and false implication.

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

and considering the material available on record has convicted and

sentenced the accused/appellant as mentioned in para-1 of this

judgment. Hence, this appeal.

05. Learned counsel for the appellant submits that the

accused/appellant has been falsely implicated in the crime in question

and from the conduct of the prosecutrix PW/1 it appears that she was a

consenting party to the act of the accused/appellant. Learned counsel

further submits that after serving the entire sentence the

accused/appellant has been set free.

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06. On the other hand, supporting the impugned judgment it has been

argued by learned State counsel that the conviction of the

accused/appellant is strictly in accordance with law and there is no

infirmity in the same. He further submits that on the date of commission

of offence, the prosecutrix was less than 12 years of age.

07. I have heard learned counsel for the parties and perused the

material available on record.

08. Prosecutrix (PW/1) while supporting the prosecution case has

stated that the accused/appellant took her forcibly to his relatives’ house

and there he committed forcible sexual intercourse with her. In cross-

examination, she remained firm. Samal Sai (PW/2) is father of the

prosecutrix at whose instance FIR (Ex.P/3) was lodged. He has stated

that he was informed by the prosecutrix that the accused/appellant had

taken her to his relatives’ house where he committed sexual intercourse

with her. Dr. (Ms.) Rashmi Kumar (PW/3) medically examined the

prosecutrix vide Ex.P/4 and stated that secondary sexual characters

were well developed, no any external injury was noticed, vagina was

normal, hymen was raptured, bleeding occurred due to menstrual, no

slides could be taken due to menstruation and vagina was easily

admitting one finger. The Doctor has further opined that the prosecutrix

was subjected to sexual intercourse. Pradeep Tirkey (PW/4) is the

Headmaster who proved the date of birth of the prosecutrix to be

03.06.1999 vide Ex.P/6. R.N. Bhagat (PW/5), Investigating Officer, has

duly supported the prosecution case.

9. Close scrutiny of the evidence makes it clear that the prosecutrix

PW/1 went missing from 09.08.2010 and on 13.08.2010 she was

recovered from the custody of the accused/appellant. The prosecutrix
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PW/1 stated that she was taken forcibly by the accused/appellant to his

relatives’ house where he committed forcible sexual intercourse with

her. Statement of prosecutrix finds corroboration from the medical

evidence (Ex.P/5), according to which, hymen was raptured, vagina

was easily admitting one finger and the sexual intercourse was done

with her. Further, Pradeep Tirkey (PW/5), Headmaster, who proved the

mark list (Ex.P/6) of the prosecutrix wherein her date of birth was

recorded as 03.06.1999 clearly established the fact that on the date of

commission of offence the prosecutrix was below 11 years of age i.e

minor. Moreover, nothing has been elicited by the defence as to why

the appellant has been falsely implicated in the case and thus the

stand of false implication taken by the accused/appellant is not worth

acceptance. Defence has not been able to substantiate the plea of

false implication by satisfactorily explaining as to why the

accused/appellant would be falsely implicated in this case rather all the

witnesses have supported the prosecution case.

10. Thus, this Court is of the considered opinion that the evidence of

the prosecutrix being completely trustworthy inspire confidence. The

judgment of the trial Court convicting the accused/appellant under

Sections 363, 366 and 376(2) (f) of IPC is well founded and does not

call for any interference in this appeal.

11. In the result, the appeal has no substance, the same is liable to

be dismissed and it is hereby dismissed.

Sd/-

(Pritinker Diwaker)
Judge
Vijay