BISAD KHAN Vs. STATE OF CHHATTISGARH AND ORS

JUDGEMENT

(1.) This appeal arises out of the judgment of conviction and order of sentence dated 26.04.2008 passed by the Additional Sessions Judge, Balod, District Durg, in S.T. No.02/2008 convicting the accused/appellant under Section 376 (2) (f) read with section 511 of IPC & sentencing him to undergo R.I. for five years and pay fine of Rs.2000/-, in default of payment of fine amount to further undergo additional R.I. for one year.

(2.) Brief facts of the case are that on 25.10.2007 FIR (Ex.P/1) was lodged by Lagni Bai (PW/1)-grand-mother of prosecutrix alleging in it that on 24.10.2007 her son along with his wife had gone for their livelihood leaving behind the prosecutrix (PW/3) aged about 4 years. It is alleged that on 24.10.2007 the accused/appellant had taken prosecutrix along with him offering chocolate and when she returned home at about 6.30 pm crying and complained of pain in her private part, on being repeatedly asked, she disclosed the incident that the accused/appellant had taken her near transformer, lay her down, removed her undergarment and inserted his finger in her private part, thereafter, the accused/appellant removed his own clothes including that of underwear and tried to insert his penis in her private part and attempt was made to commit sexual intercourse with her as a result of which she felt pain. It is further alleged that Lagni Bai (PW/1) noticed swelling on her private part, however, as it was dark, on the next day after consulting some female members of the village, the report was lodged. Based on this report, offences under Section 376/511 IPC was registered against the accused/appellant. On 25.10.2007 the prosecutrix was medically examined by Dr. Shashi Cladious vide Ex.P/8 who opined that secondary sexual characters were not fully developed, no odour, swelling, tenderness, bleeding and secretion were present on the medial side of thigh, labia majora and minora respectively. Hymen was intact, she was not habitual to intercourse and no intercourse was done with the prosecutrix. After investigation, charge sheet was filed against the accused/appellant under Section 376/511 IPC, however, the trial Court has framed the charges under Sections 377 and 376 (2) (f) IPC.

(3.) So as to hold the accused/appellant guilty, the prosecution examined as many as 13 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.