SONU ALIAS SATENDRA KUMAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THE appellant has preferred this appeal against the judgment and order dated 2.12.2009 passed by Additional Sessions Judge (FTC) Durg in Sessions Trial No. 202/2008 convicting the accused/appellant under Sections 376 and 342 IPC and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 25,000 u/s 376 and rigorous imprisonment for one year u/s 342 IPC, plus default stipulations.

(2.) CASE of the prosecution in brief is that on 3.9.2008 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) - a minor girl aged about 14 years at the relevant time alleging that on that day at about 2 p.m. when she had gone to the house of the accused/appellant to watch TV, he after closing the door from inside and with an intention to outrage her modesty threw her on the cot and after removing his and her underwear embraced her and when she tried to protest the same, he gagged her mouth, made an attempt to commit rape on her and that when she started crying he left the spot. Based on this FIR, offence under Section 376/511 IPC was registered against the accused/appellant. Case diary statement of the prosecutrix was recorded on that day itself in which she has stated that the accused/appellant had inserted his private part into that of her and as she felt pain she had cried for help and then the appellant left the spot. After returning home she narrated the incident to her grand mother. Thereafter, Panchayat meeting is said to have been called where also she disclosed the entire incident to the members of the meeting. She was medically examined on 4.9.2008 by Dr. (Smt.) Renuka Prasanno (PW-3) and the report given by her is Ex. P-7. After investigation, challan was filed on 15.11.2008 under Sections 376 and 511 IPC. Initially the charge was framed by the Court below under Sections 376/511 IPC on 16.1.2009 however, on 23.9.2009 it was altered into the offence under Section 376 by deleting Section 511 IPC.

(3.) PROSECUTRIX (PW-1) has stated in her evidence that she knew the accused/appellant as he and she were of the same village and that on the date of incident she was studying in class VII. She has stated that on that day when she had gone to the house of the accused/appellant to watch TV, he threw her on the cot and after removing her and his own clothes committed something bad to her. She then has stated that the accused/appellant had inserted his private part into that of her and when she raised cries, he gagged her mouth. According to her, on account of fear and pain she raised her cries and as no one else was there she was scared. Before committing the offence, the accused/appellant had closed the door of the house and he remained mounted on her for a long time. When the accused/appellant left the spot, she came back to her house weeping and informed about the incident to her grand-mother and aunt and thereafter her grand-mother informed the same to her grand-father who in turn informed it to her father and then the report was lodged. After lodging the report, she was medically examined vide Ex. P-7 and spot map was prepared by the Patwari. She has admitted the fact that before signing the FIR, she had not read the same. She has clarified that though TV was also available in her house, as in the TV of the appellant other channels were also there, she had gone to his house as usual. According to her, when she had gone to the house of the accused/appellant, he was all alone but she was not scared because earlier also she used to go there for the said purpose. She has admitted that the house of one Geeta Chandrakar is adjacent to the house of the accused/appellant and if some voice is raised in his house, it could be heard in the house of Geeta Chandrakar also. She has stated that TV was kept in a separate room other than the bed-room. This witness has admitted that when she was being taken from one room to the other, she did not raise any cry nor did she make any effort to come out of his clutches. She has further admitted that she did not have the birth certificate but she has stated about her date of birth as 21.7.1994 whereas in the mark sheet it is recorded as 25.8.1994. She has clarified that her date of birth was recorded in the school register on the basis of assumption. According to her, she had informed the police at the time of lodging the FIR that appellant had inserted his private part into that of her and if the same is not mentioned therein, she cannot tell any reason. She has stated that when she had gone to lodge the FIR, she informed the police only about an attempt being made by the accused/appellant of committing bad work. In cross-examination also this witness has not stated anything new and remained firm to what has been stated by her in the examination-in-chief. Khomanlal (PW-2) - father of the prosecutrix has stated that on the date of incident he was in his house itself as he was not feeling well and that his father had informed him that his mother had told him about the incident of rape on the prosecutrix by the accused/appellant. According to him, initially, he could not understand anything but thereafter he approached the village Kotwar, Sarpanch and Panch of the village and then the matter was reported to the police. He has stated that mark- sheet of the prosecutrix Ex. P-6 was seized by the police vide Ex. P-5. He has further stated that though he did not remember the date of birth of the prosecutrix, the same was mentioned in her mark-sheet and that as per his estimate she was aged about 14 years at the time of incident. In cross- examination, this witness remained firm to what he has stated in the examination in-chief. Dr. (Smt.) Renuka Prasanno (PW-3) is the witness who had medically examined the prosecutrix and given her report Ex. P-7 has stated that no external or internal injury was noticed on the person of the prosecutrix, her hymen was present, no injury was there in her vulva but white discharge in the outer wall of the vulva was noticed by her. According to her, before receiving the FSL report she could not give any opinion about the rape on the prosecutrix. She has further stated that white discharge in the outer wall of the vulva could be due to infection or for other reasons also. Deodas (PW-4) - the village Kotwar has stated that the incident was informed to him by the father of the prosecutrix and then the report was lodged. As per the Kotwari register Ex. P-9 her date of birth is 21.7.1994. Though on the point of Panchayat meeting being called, he has been declared hostile, he has proved the date of birth of the prosecutrix. Doman Singh Chandrakar (PW-5) has supported the fact of Panchayat meeting being called where the prosecutrix had informed everyone about the incident. Lilaruram Vanpal (PW-6) is the Head Master of the Primary School who has stated that as per the admission register Ex. P-12 date of birth of the prosecutrix is 25.8.1994. Gorelal Jagne (PW-7) is the Patwari who prepared the spot map. R.G.S. Gautam (PW-8) is the investigating officer who has supported the case of the prosecution. Baldau Prasad (PW-9) is the witness of Panchayat meeting being called in the village. Bahur Singh Yadav (PW-10) is the witness who assisted in the investigation. Dr. C.B. Prasad (PW-11) is the witness who had medically examined the accused/appellant and given his report Ex. P-21 according to which he was capable of performing sexual intercourse. Dashrath Lal (DW-1) has stated that in the Panchayat meeting the prosecutrix has informed that the accused/appellant had teased her but she had not informed about being raped by him.