RUPESH KUMAR NISCHAL DAS Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 31-12-2008 passed by the Sessions Judge, Raipur in Sessions trial No. 70/2008, whereby learned sessions Judge after holding the accused/ appellant guilty for commission of offence under Section 376 read with Section 511 of the I. P. C. , sentenced him to undergo R. I. for five years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo r. I. for three months.

(2.) JUDGMENT of conviction is challenged on the ground that without any evidence relating to attempt to commit rape against the appellant the Court below has convicted and sentenced the appellant and thereby committed illegality.

(3.) CASE of the prosecution, in brief, is that on 30-9-200/7 at about 9 a. m. the prosecutrix, aged about 8 years, was playing near the house which was under construction, the accused went near the prosecutrix, took her inside a vacant room, undressed himself and the prosecutrix, lay her down on the land and was attempting to commit rape on her. While the accused was taking the prosecutrix towards the room, Takeshwar (PW-4) objected him and immediately ran away and informed to the brother of the prosecutrix namely, Asha Ram (PW-3 ). Asha ram (PW-3), Takeshwar (PW-4) and mantram reached towards the place of incident and saw that the accused was attempting to commit rape on the prosecutrix. They caught hold of the accused. Asha Ram (PW-3) immediately lodged the report, same was written in Dehati Nalishi Ex. P-2 and on the basis of Dehati Lalishi, F. I. R. Ex. P-5 was registered. The prosecutrix was sent for medical examination vide Ex. P-6 and she was examined by the doctor. No injury was found on the prosecutrix. Her secondary sexual characters were not developed, hymen was intact, no internal injury was found over her private part and vagina does not admit even one finger. Two slides were prepared from the vagina of the prosecutrix and handed over to the police. The accused was taken into custody vide Ex. P-11. He was sent for medical examination. He was examined by Dr. V. Dutta (PW-1) vide Ex. P-1 who opined that the accused is capable for committing sexual intercourse. Spot map was prepared vide Ex. P-3. Caste certificates exs. P-9 and P-10 were seized vide Ex. P-8.