GOPAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of Sentence dated 30. 3. 2007 passed by the 14th Additional Sessions Judge, Raipur in Sessions Trial No. 28/2007 whereby and whereunder learned Additional Sessions judge after holding the appellant guilty for the offence punishable under Section 376 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for 3 months

(2.) JUDGMENT of conviction and order of sentence is challenged on the ground that without there being proof of age of the prosecutrix, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) CASE of the prosecution, in brief, is that underdeveloped brain, the prosecutrix aged about 17 years on the date of commission of offence i. e. 11. 11. 2006 was present at about 1 p. m. in her house of Deogaon, police station Kharora, District Raipur. Accused came in the house of the prosecutrix and committed sexual intercourse with her while she was alone in her house. Second day she narrated the incident to her mother who lodged the FIR vide Ex. P24. She was sent the medical examination vide Ex. P5 to Community Health Centre Tilda where she has not cooperated for Medical examination. Her age and physical features were recorded vide Ex. P6 and she was sent to Medical college, Raipur where she was examined by anita Yadu (PW4) and noticed 28 teeth over her both the jaws Hymen admits one finger. Hyman was patulous but no fresh in-jury was found. Vaginal was also patulous. The doctor has opined that intercourse might have been committed upon her. Her clothes containing like sperm stand were examined and sealed. Her clothes were seized vide. Ex. P1. Underwear of the accused was seized vide Ex. P2. He was sent for medical examination and was examined by Dr. S. R. Banjare (PW3) vide Ex. P3 and was found capable for committing sexual intercourse. Slides of vaginal smear were taken and sealed. Slides and clothes were recovered vide Ex. P6. For confirmation of the age of the prosecutrix, ossification test was conducted and her age was ascertained between 13 to 18 years vide. Ex. P8. Spot map was prepared vide Ex. P18. Articles were sent for chemical analysis and presence of human sperm was confirmed over slides of the prosecutrix and underwear of the accused vide Ex. P20. Spot map was prepared by patwari vide Ex. P21.