THAKUR BAHADUR Vs. STATE OF C.G.

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 20 -08 -2010 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act, 1989'), Durg, C.G. in Special Case No. 05/2007 whereby and whereunder the learned trial Court after holding the appellant guilty for illicit intercourse and committing rape against will and consent of the prosecutrix (PW -1) (name not mentioned) and also for giving her threat to cause bodily injury/threat to kill and thereby committed criminal intimidation convicted him for offence under Sec. 376(1) and 506 of the Indian Penal Code (in short 'the IPC') and sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2000/ -, in default of payment of fine, to further undergo rigorous imprisonment for two years, and rigorous imprisonment for 1 year with a direction to run both the substantive jail sentences concurrently. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(2.) As per the case of the prosecution, in brief, that on 06 -08 -2006, at about 12.00 in the night, in the BTI hostel, Bhilai, Sector No. 3, the prosecutrix along with other team members was in the hostel, the appellant was coach of the team of Korba. At midnight, the appellant took the prosecutrix (PW -1) in an empty room in upper floor and by removing her cloth committed forcible sexual intercourse without consent and will and also gave her threat to kill thereby committed criminal intimidation. The prosecutrix (PW -1) gave written complaint (Ex. -P/2), the same was registered at Police Station Bhilai Bhatti. On 07 -08 -2006 at 11.00 a.m., police registered crime No. 95/06 and registered the case under Ss. 376, 506 of the IPC and Ss. 3(1)(xii) and 3(2)(v) of the Act, 1989 and started investigation. Police during investigation, seized the undergarment of the prosecutrix vide seizure memo Ex. -P/3 and also seized the birth certificate vide Ex. -P/4, prepared the spot map vide Ex. -P/5. The prosecutrix (PW -1) was sent for ossification test. As per report Ex. -P/6, the doctor assessed the age of the prosecutrix (PW -1) as between 14 to 15 years. Police also collected the entries of the register regarding the age of the prosecutrix (PW -1), seized the same (Ex. -P/7) vide seizure memo Ex. -P/8. The caste certificate is seized vide seizure memo Ex. -P/9. The appellant was taken into custody and his undergarment was seized vide Ex. -P/10. The prosecutrix (PW -1) was sent for medical examination. Doctor Ujjwala Dewangan (PW -11), after examination, noticed abrasion in the labia minora and also oozing of blood, hymen torn with swelling in 1 to 6 position, blood coming out by touching the hymen, tenderness and pain noticed. The doctor prepared slide from the vaginal swab, vagina admits two fingers with difficulty. The doctor opined presence of sign of recent sexual intercourse and injuries are caused by hard and blunt object, she gave her report Ex. -P/17A and also examined the cloth and advised for chemical analysis. The appellant was also examined by Doctor P. Balkishore (PW -6) who gave report after examination that the appellant was able to commit intercourse, no injury over the genital was noticed. He gave his report Ex. -P/13 and also examined the undergarment and advised for chemical analysis. The appellant was arrested vide Ex. -P/19. The statements of the witnesses were recorded under Sec. 161 of the Code of Criminal Procedure, 1973 (in short 'the Code').

(3.) After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Special Judge, Durg, C.G., who framed the charges against the appellant for offence under Ss. 376, 506 of the IPC and Sec. 3(2)(v) of the Act, 1989. The appellant denied the charges and prayed for trial.