Preamlal Markaam vs State Of Chhattisgarh
2021 Latest Caselaw 1803 Chatt

                                                                               NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                       Criminal Appeal No. 187 of 2016

   • Preamlal Markaam, S/o Ramnath Markaam, Aged About 35 Years, R/o
     Village Aamgaon (Aamanara), P.S. - Boraee, District - Dhamtari,
     Chhattisgarh.

                                                                       ---- Appellant

                                       Versus

   • State of Chhattisgarh Through Police Station Boraee, Civil And Revenue
     District - Dhamtari, Chhattisgarh.

                                                                    ---- Respondent

For Appellant : Shri Brijesh Kumar Singh, Advocate. For State/Respondent : Shri Ravi Maheshwari, Panel Lawyer.

Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board

17/08/2021

1. This appeal has been preferred against the impugned judgment dated

17/12/2015 passed in Special Criminal Case No.34/2015 by the

Additional Sessions Judge (F.T.C.), Dhamtari, District Dhamtari, (C.G.)

wherein appellant has been convicted and sentenced as under :

                   Conviction                               Sentence

               U/s 363 of the I.P.C.            R.I. for 3 years & fine amount of
                                                Rs.500/- with default stipulations.

              U/s 6 of POCSO Act,           R.I. for 10 years & fine of Rs.2,000/-
                                                    with default stipulation.

                           Both sentences to run concurrently.

2. In the present case, at the relevant time age of the prosecutrix (PW-1)

was about 10 years and at that time she was studying in class 3.

According to case of the prosecution, appellant mixed something in

food item and gave it to the prosecutrix to eat. Thereafter, appellant

took the prosecutrix to his house and committed sexual intercourse

with her due to which there was bleeding in the private part of the

prosecutrix. Then prosecutrix came to her house and told about the

incident to her brother-in-law namely Laxman Singh (PW-2).

Thereafter, matter was reported by Laxman Singh in the police station.

On the basis of said, offence has been registered. Statement of

prosecutrix and other witnesses were recorded under Section 161 of

Cr.P.C. After completion of the investigation, a charge-sheet was filed.

To prove the guilt of the accused/appellant, prosecution has examined

as many as 9 witnesses. No defence witness has been examined.

Statement of appellant under Section 313 of the Cr.P.C. was recorded,

wherein accused/appellant has pleaded innocence and false

implication.

3. After completion of trial, the trial Court has convicted and sentenced

the appellant as mentioned in paragraph 1 of this judgment. Hence,

this appeal.

4. Learned Counsel appearing on behalf of the appellant submits that

appellant is innocent and is falsely implicated in the present case. He

further submits that trial Court has wrongly convicted the appellant

without there being sufficient and clinching evidence against him. He

further submits that victim/prosecutrix herself has admitted that she got hurt on falling down while playing. It is also admitted by the doctor

namely Dr. Asma Farheen Khan (PW-9) that injury caused to the

prosecutrix could occur on falling down while playing. This fact cannot

be denied that prosecutrix got hurt while she was playing. Thus,

conviction of the appellant is not sustainable.

5. Per contra, learned Counsel appearing for the State supports the

impugned judgment and submits that sentence awarded by the trial

Court is just and proper and requires no interference.

6. I have heard learned Counsel appearing for the parties, perused the

record, statement of the witnesses and other annexed documents

minutely.

7. Prosecutrix/victim (PW-1) in her Court statement has categorically

deposed that on the date of incident, she was playing in the street. At

that time appellant took her inside his house and committed forcible

sexual intercourse with her, due to which her private part was bleeding.

She further deposed that after the incident she came to her house and

told about the incident to her brother-in-law Laxman Singh (PW-2) and

her sister. On the next day, her brother-in-law lodged report in the

police station. Her statement is duly corroborated by Laxman Singh

(PW-2). He also deposed that when he came to the house alongwith

his wife, then on seeing them, prosecutrix (PW-1) started crying. On

being asked, prosecutrix told that appellant had committed forcible

sexual intercourse with her. At that time, when he saw the private part

of the prosecutrix, he found that her private part was bleeding.

Ramjivan Markam (PW-3) has also deposed that when he reached the

house of Laxman Singh, then he also saw that private part of the prosecutrix was bleeding. Firstly, prosecutrix/victim was medically

examined by Dr. Smt. Madhuri Wankhede (PW-4). According to her

examination report, there was four abrasion found in the back of the

prosecutrix. Later on, prosecutrix was examined by Dr. Asma Farheen

Khan (PW-9). According to her report i.e. Ex.P-22, hymen of the

prosecutrix was found ruptured, there was swelling and redness in

vulva and it was painful on touching. According to her, there was

possibility of commission of rape with the prosecutrix. Tameshwari

Markam (PW-8), friend of the prosecutrix has also supported the

statement of the prosecutrix and deposed that when they were playing,

appellant took the prosecutrix to his house. Statement of this witness is

also not rebutted during her cross-examination. Though prosecutrix

has admitted the fact that she got hurt while playing, but no such

suggestion was given to her which may establish that bleeding in her

private part occurred due to falling while playing. Thus, there is no

substance available in the argument that bleeding of private part

occurred while playing. From the statement of prosecutrix/victim, which

is duly corroborated by medical report as well as other evidence, it is

well-established that appellant had committed forcible sexual

intercourse with the prosecutrix.

8. With regard to the age of the prosecutrix, on the date of examination,

she herself has stated that her age is about 10 years. Laxman Singh

(PW-2) has also deposed that at the time of alleged incident,

prosecutrix was studying in class 3 and she was about 10 years old.

Statement of above two witnesses were not rebutted. According to the

entries of Dakhil Kharij Panji (Ex.P-10C) also, date of birth of the

prosecutrix is 10.07.2006. Looking to the entire evidence adduced by the prosecution, documentary as well as oral, it is well-established that

at the time of alleged incident, age of the prosecutrix was below 12

years. Therefore, in my considered view, the trial Court has rightly

convicted the appellant.

9. Consequently, the appeal has no merit and is, therefore, dismissed.

10. Records of the Court below be sent back along with a copy of this

order forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Prakash