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