DHANESH ALIAS KONDA BANJARE Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dated 11.2.2002 passed in Sessions Trial No. 443/2000 by the Seventh Additional Sessions Judge, Raipur, whereby, the said Court after holding the appellant guilty of the offence punishable under Section 376(2)(f) I.P.C. sentenced him to undergo R.I. for 10 years and to pay a fine of Rs. 500/- in default of payment of fine to further undergo R.I. for 2 months.

(2.) The brief facts are that on 19.10.2000 at about 19.30 hours, the prosecutrix Ku. Jayalata (P.W.4), a minor girl aged about 6 years, was playing near her house. The appellant came there, caught her by hands, took her inside a room and committed forceful sexual intercourse against her. When she was released, she went to her house and narrated the story to her mother-Smt. Resham Bai (P.W.1), who noticed the blood stains on her underwear. She called her husband, the appellant was also called and blood like stains on his loongi were noticed by them. A First Information Report (Ex.-P/9) was lodged by Smt. Resham Bai (P.W.1). During the course of investigation, the prosecutrix was sent for medical examination and was examined by Dr. Alka Gupta (P.W.-11), who prepared a report Ex.-P/7, according to which, the girl was of average look and average built, there were no marks of external injury over breast, cheeks, abdomen and vulva. There were no marks of internal injury over vulva perineum. Since the girl was not allowing internal examination, she referred her to the Gynaecologist. Later on, she was sent to Dr. Tripti Nagaria (P.W. 12), who was Associate Professor in Medical College, Raipur. She examined the girl on 20.10.2000 and prepared a report Ex. P/8. According to her report, no external injuries were seen on the body and there were also no injuries on thighs, hymen was intact and opening was circular, there were no tenderness or bleeding from the private part and there was no inflammation therein. According to her, no definite opinion could be given regarding rape. The accused/appellant was also arrested. He was also sent for medical examination and was examined on 21.10.2000 by Dr. S.R. Banjare (P.W.-5), who prepared his report (Ex.-P/2). He noticed one old lacerated wound admeasuring 1/4 cm. x. 2 cm. on the glans penis, which was of 2 days back. According to his opinion, nothing was suggestive which may show that the appellant was not able to perform sexual intercourse. The loongi, underwear and a full shirt were seized from the possession of the appellant on 21.10.2000 under Ex.-P/4. Likewise the underwear and frock of the prosecutrix were also seized under Ex. - P/1. All these articles were sent for chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/12, from where the report (Ex.-P/13) was received, according to the report of the Asstt. Chemical Examiner namely-Dr. (Smt.) S. Saxena, blood stains were found on underwear and frock of the prosecutrix marked as Ex. A1 and A2 and blood stains were also found on the underwear, loongi and shirt of the appellant marked as Ex.-C, D and E. Further on Ex.-A1, Ex.-C and Ex.-D i.e. underwear of the prosecutrix, underwear of the appellant and loongi of the appellant, semen stains and human spermatozoa were also found whereas neither blood nor semen or human spermatozoa etc. were not found on Ex.-B i.e. slides prepared from the material of surface of hymen. Site plan (Ex.-P/2-A) was also prepared by the Patwari-Laxminath Sahu (P.W.-6) and after completion of usual investigation, the charge-sheet was filed in the court of Judicial Magistrate, First Class, Raipur, who in turn committed the case to the Court of Sessions, from where it was received on transfer by the Court of Seventh Additional Sessions Judge, Raipur, who conducted the trial and passed the impugned judgment and order dated 11.2.2002, whereby, the appellant was convicted and sentenced as aforementioned. It is against this judgment and the order, the appellant has preferred this appeal.

(3.) The conviction of the appellant is based upon the testimony of the prosecutrix (P.W.-4), her mother (P.W.-1) and chemical examiner's report. The Sessions Court recorded a finding that the prosecutrix was below 12 years of age and she was subjected to rape by the appellant.