TILSAAY URAON Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal has been preferred under Sec. 374(2) of the Code of Criminal Procedure (henceforth 'Cr.P.C.') being aggrieved by the judgment dtd. 30/8/2013 passed in Sessions Trial No.45 of 2013 by the Additional Sessions Judge (F.T.C.), Jashpur, District Jashpur, whereby the Appellant/accused has been convicted under Ss. 363, 366 and 376 of the Indian Penal Code (henceforth 'I.P.C.') and Sec. 4 of the Protection of Children from Sexual Offences Act, 2012 (henceforth 'the Act, 2012') and has been sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs.500.00, rigorous imprisonment for 5 years and to pay fine of Rs.500.00, rigorous imprisonment for 7 years and to pay fine of Rs.500.00 and rigorous imprisonment for 7 years and to pay fine of Rs.500.00, respectively. In default of payment of fine, the Appellant has been sentenced to undergo additional rigorous imprisonment for 1 month each on all the counts. All the sentences are directed to run concurrently.

(2.) The prosecution case, in brief, is that on the date of incident the prosecutrix was a student of VIII th Standard. She used to go to school with her friend Hirmuniya, where Appellant/accused Tilsaay became acquainted with the prosecutrix. The Appellant/accused with an offer that he will marry the prosecutrix used to allure her. On 22/3/2013, marriage of the daughter of villager Ramprasad was to take place in the village. The prosecutrix along with her parents had gone to attend the marriage ceremony. The Appellant/accused had also gone to attend the marriage ceremony. On 24/2/2013, after the marriage ceremony, the prosecutrix along with her friend Hirmuniya was sitting near the Pokhara Pond. The Appellant took the prosecutrix from there to his home. Next day, the Appellant took her from there to Ambikapur and from there, he took her to the house of his uncle (Fufa) at Village Samarbar and committed forcible sexual intercourse with her. At the time of taking her from the pond, the Appellant had threatened the prosecutrix that if she will not go with him, he will cut her and throw her body. On missing of the prosecutrix, her father Thuparam lodged Dehati Nalishi (Ex.P-3) in Police Station Sanna. First Information Report (Ex.P-11) was registered against the Appellant/accused in Police Station Sanna. A copy of the FIR was presented in the Court of Judicial Magistrate First Class, Bagicha. The prosecutrix was recovered from the house of Deonath at Village Samarbar vide Recovery Panchnama (Ex.P-2). After obtaining consent of the prosecutrix and her father vide Ex.P-1, the prosecutrix was sent for medical examination. Her medical examination report is Ex.P-9. Spot-map (Ex.P-4) was prepared. The Appellant was also sent for medical examination and his medical report is Ex.P-10. Underwear of the prosecutrix was seized vide Ex.P-6. Underwear of the Appellant was seized vide Ex.P-7. Vaginal slides of the prosecutrix were prepared and were seized vide Ex.P-13. For determination of age of the prosecutrix, x-ray of the prosecutrix was taken out and report (Ex.P-17) was obtained from the Radiologist. Mark-sheet of Vth Standard of the prosecutrix was seized vide Ex.P-5. The Appellant/accused was arrested vide Ex.P-12. The seized articles were sent for forensic examination and the FSL report is Ex.P-15. Statements of the witnesses were recorded under Sec. 161 Cr.P.C. After completion of the investigation, the Appellant/accused was charge-sheeted for the offences punishable under Ss. 363, 366 and 376 I.P.C. and Sec. 4 of the Act, 2012. He denied the guilt. On his denial, trial was conducted. The prosecution examined as many as 14 witnesses. The Appellant/accused, except his examination under Sec. 313 Cr.P.C., did not examine any witness in his defence. After affording opportunity of hearing and leading evidence to both the parties, the Trial Court has convicted and sentenced the Appellant/accused as mentioned above. Hence this appeal.

(3.) The main ground raised on behalf of the Appellant/accused in this appeal is that the Trial Court has not properly appreciated the evidence of the prosecution witnesses. It is further submitted by Learned Counsel appearing for the Appellant/accused that the prosecutrix (PW-1) was a consenting party. The contradictions and omissions in the evidence of the prosecution witnesses have not been taken into consideration. The prosecutrix (PW-1) had attained 19 years of age on the date of incident, but the Trial Court did not consider this fact. It is prayed that taking into consideration these facts and grounds, the impugned judgment passed by the Trial Court may be set aside and the Appellant/accused may be acquitted of the charges framed against him.