DHARMESH Vs. STATE OF C.G.

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 09-05-2002 passed by the Sessions Judge, Raigarh, C.G. in Sessions Trial No. 179/2001 whereby and whereunder the learned trial Judge after holding the appellant guilty for committing rape with the prosecutrix (PW-2, name not mentioned) convicted him under Section 376(1) of the Indian Penal Code (for short 'the IPC) and sentenced the appellant rigorous imprisonment for 7 years and fine of Rs. 5000/-, in default of payment of fine, to undergo additional rigorous imprisonment for 6 months. The conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(2.) As per the case of the prosecution, on 20-02-2001, at about 11.45 a.m., the prosecutrix (PW-2) reached to Police Station Tamnar and lodged a report against the appellant. Police lodged the First Information Report (FIR) by registering the crime No. 9/2001 under Sections 376 and 417 of the IPC. In the said report, the prosecutrix (PW-2) stated that about 2 years ago as the appellant offered her for bad act which was denied by the prosecutrix and thereafter the appellant made promise to keep her. Upon repeated request to visit his house, the prosecutrix (PW-2) visited the house of the appellant where the appellant used to live all alone and there when she went inside the house, after removing the clothes and forcibly falling her down, the appellant committed forcible intercourse even after the protest made by the prosecutrix (PW-2). After this, the appellant promised her for marriage and he committed this act many times. When she became pregnant, she informed this to the appellant for marriage and when the appellant not solemnized marriage, then she intimated the whole incident to her mother and parents and thereafter along with her parents she lodged this report. After registration of the FIR, police started investigation. After obtaining necessary permission, the prosecutrix (PW-2) was sent for medical examination. Doctor Smt. Madhu Dubey (PW-1) examined her and noticed 24 to 26 weeks of pregnancy, no external or internal injury, hymen old torn. As per assessment of the Doctor, the prosecutrix (PW-2) was between the age of 14 to 16 years. For confirmation she advised for ossification test; she also prepared slide from the vaginal swab of the prosecutrix (PW-2), sealed it and handed over to the concerned Constable for chemical analysis. This Doctor gave her report as Ex.-P/1. On 12-04-2001 Doctor M.D. Joshi (PW-6), after necessary ossification test of the prosecutrix (PW-2), opined that the age of the prosecutrix (PW-2) was 15 to 16 years. He gave his report vide Ex.-P/14 along with X-ray plate (Ex.-P/15). The mark sheet (Ex.-P/9) was seized from the prosecutrix (PW-2) vide seizure memo Ex.-P/8. The spot map was prepared vide Ex.-P/5. The Patwari prepared map vide Ex.-P/6. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The slide prepared were sent for chemical analysis vide memo Ex.-P/17. The appellant was arrested. He was sent for medical examination. Doctor Iqbal Singh (PW-7), after examination, opined that there is no physio clinical evidence to declare the appellant unable to do intercourse. He gave his report vide Ex.-P/16.

(3.) After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Gharghoda on 29-08-2001, who, in turn, committed the case to the Court of Sessions, Raigarh, the learned Sessions Judge, during the trial, framed charges against the appellant for the offence under Section 376(1) of the IPC. The appellant denied the charges and prayed for trial.