sn^rqn ^<n a.n^i —1- •^sf -s.nqi^R, ^^yi|<i, Is«tiyli< ,..CxAra.y-2-..^.l.o./.2.d^ sn^ Traqr ('1?f^s'st) 8B: HON'BLBSHRI DHIRENDft& MISHRA, J. PS JAIL) aT-trl sa%?rihw^ 4 'ft'et l. rtillivipal ® Kobet s/o Heera riria, aged 'ut 3.9 ve&rs &. Jeejvaa 'a, Botalo Majni s/o Kaiasai Ma.ilii. fcoth. R/o villsisc ~ 'Jalilir)ara, Mujiapara, P.S. Patiualgaon, Distt. Rafcarh CM.P.l KJBSFOitDBNT 13-11-2007 Stajte of Madhya Pradesb . Shri Abhay Tiwari, Advoc^te, for fhe appeUants. Sari Neeraf Me&ta, Paael Lawver tor tjae s-itate. 2. This ciiminal appeal i^ directed agaiast the jndgment of convictlonand order of senten^e dated 1SU1 Septeiuber, 2000 passed m S.T. No. 102/98 wherebyjthe leamed 1st AddiUonal Sessions Judge, Raigarti has convicted the appeUaats under Section 376(2')(g) olfhe Indian Penai Code and ^entenced theni to undergo R.l. tbr 10 veaTa. prosecutyin 3. -ltie case ot Uie Uie prosecutnx naiiiely Siifcul (j 11 laentiomng Uiereni ttiat studyuig ui Ulass b, SDe is school certi&cale, her date of t>etore, accusecl -pei-sons torcibiy not to disclbse ttus tact or el^ ttis dyiab HI bnet is Uiat ou 4-&-yy, tattier ot '.W. 7) lodged written report of Ex. P- aaugfater prosecuUTX (P.w. H) is aud sne speafcs very less. As per »irt& is l-'^-iyy4. i-'ive to SK monms raped her axid asked fhe prosecutrix fhey shall kfll her. T'he prosecutrix .^ ^ ^a. -^ ^sS^ -^, 'VSSSSs: • ^s'y..-^.:^ ?i, •te^<^ G—78 ^s^ 'ar!r!n^p?, '»-(i1wi<»,i^iray ^^...6x..-..ft.-..Me.:...^.7.o./% sn^i -<^ (,'^^Rff) y»mRwg3 sirai 2- nan-ated about ttie iacident to was convened m ttie village ^i^T^ra^ Hl 4er parents a weeit Detore. A nieetnig tan 3-1-1998, however the accused persons have denied fhe iacidftit. On fhe basis of t&e above report, cnnie was registerea. Uunng u^vestlgation, Uie prosecutnx was seut for nieclical examinauon to Ci^il Hospital, Uliannjaigarn wliere ur. (Smt.) Bindu Singhal (P.W. i3)| r-Lb. r&e prosecutnx was also fhe reportof fhe Radiologist E^ TIie laarksheet of Ex. P-101 uivestigauou, cnarge siieet ^ Magistrate Mrst fJlass, Utiami^ exaxainect ner au.cl gave report ol Bx. sent for radiological exaiaiuation and . f-i'2 &as been provect by Ur. Josili. ol uie prosecutnx was taJien uito possession vicle seizure Dielno ol Bx. F-y. Atter coinpletuig \as filed ia the Court of Judicial ^igarii and uie same was received on transfer for trial by learaed Add|tion Sessions Judge. 4. Uuruig tnal, Uie prosecu^ion exainuiea 14 witnesses ui au ana thereafter stateinents of fhe ac<] Uiey aeruea Uie evidence appe^ iusecl persons were reconlect ui wtucii inng agauist meia ui uie prosecuuon case aua pleaded uuiocence ar(a talse uapticaUon at Uie uistance ot soine Jaginohaa. The trial Couijt aiter hearing fhe leamed counsel for t&e parties, nas convicted ana ^ above. 5. 1'lie conviction ot Uie apfl t&e prosecuUTx (P.W. S), tierl <Jlu~istopJier [f.W. y) aucl ner| enteuced t&e appellants as mentioned icUants is basea on Uie stateineuts ol taUier KuKul (P.W. /), Jier brouer mother Plulomma (P.W, 10). Other -^ \ ./ ^"^ .^' XI-HG—78 'TS! '^Wivftf, ^tftwi^, Fsi?i!'y^( £'f.:..^..^.ff..,.l^~l.o.J..G^ •ai^^rf^ffsi' wn sii^n grtis ^iqRWfi WRff'? fezt <fa^!<' ^aiRnaiT^i prosecution witnesses ex; ec( ('P.W. 2), Piyareai ('P.W. 3), Boifi (P.W.4) and Kamalsai (P.W. 5) have not supported Uie case ol tn^ hostile. The trial Court has notf ttie age ot tne prosecutnx anaj ttie prosecutnx is UTelevant as |tie prosecutnx was subiected to gaag rape by ftte accused persons wi^tiout Iier consent. tBe b. Leaniea couiisel tor ui^ evKtence avauaoie ou recoiu, i| niore Uian Ib years ot age oa. stieet regarding Uie age of ttte the prosecutrix who has stated birth of tlie prosecutrix is 12-8| ossifieation test lias assessed to iy years ana ttieretore, tne prosecutrix was muior at tne that conviction is based on. the trom perusal ot tae stateiaent o| sne was not conversaat witti recorctuig faer stateinent, seivicje interpretmg Uie statenient ot fafher himself had lodged fhe F{ de fado compiauiant and been recordect as stated by Jier tfie tfae wtoclle namely cnandan Sai (V.'M. 1), AKalu prosecution Emd fhey have tumed iccoraed auy tuiauig wiUi respect to it has been obsei-ved fhat the age of appeUant subnuts t&at trom. tne is evictent tnat Uie prosecutrK was date ot inciaent. Bntry in Uie laarls: tirosecuuix is Detied DV Uie tataer ol ffaat in tlie hospital record, fhe date of i(-8I. TUe Radiologist after conductiag age ol the prosecutrix between 17 p^osecution nas tailed to prove aat uie tjme ot inciclent. it was rurUier agued ptateinent ot uie prosecutnx Jiowever, Uus witness, it wouict &e evident uiat 1-lindi lauguage aaa ttieretore, lor ol lier tafher Suicul was taken tbr prosecutnx. It is arguea ta.at t&e |1.K. ot Kx. P-ll and as sucli, ne was stateinent of fne prosecutrix has (atner ana tlieretore, Ute Court betow tde t(mf T cyiB,^ ^""•^"'"% ^ -HG—7i ?s[ '^n^TrpT, sStilyi<o, l^iray ^....£^...fi.:..^e...r..2Rl6/^ ^) SV^f wnsn^i •qiW (Tpt;I^q^ L 'reroT'oi^'g an^ q? aifgq aii^r was not justitiect ui placins prosecutnx ansl beuetit ot doutl appellants. KeteiTtng to Uie M. fhat uie prosecutnx was canyitig 28 weeks' pregnaacy at ffae tiine of examinauon on 4-5-iyyy ano prosecutnx tor Uie ttrst tune in ofher persons. The explauatiori under Uie ttireat ot Uie accuseci retiaQce over Uie version ot ttie t ougtit to nave been extended. to t&e ,.C. report of Ex. P-16, it was argued the incident was disclosed by Uie flie inonffa of May, 1998 and for this whole period, she did not disc^>se fhe conunission ofoffence to any ot Uie witaesses in tliis I'egard Uiat persons, tne same was not ctisclosecl appears to be uuprobabte ansf. t&e conctuct ot Uie prosecuU-Di in loclging Uie report Delatedly cr^tes reasouable suspicion Uiat sne is not a witness of trufh. 7. On fhe other haud, Uie nnpugnecl juctgnient arguec] was subjected to gaag rape by icct cou.asel tor t&e Ktate supportm.^ Uiat t&e prosecuQTX ot a tender age [ne appeilaats, siie was Darely aDle to speak and her steteiueat hasi been recorded on fhe basis of her gestures aad signs. SIie has <|:ategoi-icaUy stated that tiie accused persons ttireatened her not to jdisclose fhis tact and because of the act ot me appeuants, s&e gavej bntti to a inale ctuld. Her version is duly con-oborated troni fhe Christoplier, fafher P.W. 7 Suklji and mother (P.W. 10) PhJJoinina. y. 1 iiave nearcl leamecl coluisel perusea me iTecord incluctuig tU{ ^tateiaents ot Jb.er brot&er H.W. y for the appeUants. I have also unpugned ludginent. as ^^ JA. 'f-HC- wnswsignw -s^t "sfpVv^, "^ftWTS, Mcniy>i,< ..C.'v.:..0,:,?s.'.?..r..2-.^.Z?l..'s2. sn^iTsq? y. yo tar as t&e age otj ttie prosecutnx is concemed, ttie prosecution tias relied upon inentions the date ofbhth offye prosecutrix to be 1-2-1984, however &~om perusal ot ttie stateinent para 3 ol tus deposiUon t0.at ^ fhe luark sheet of Ex. P-10 which t>f faer tather Sukul wh.o lias stated in ^s per the Jiospital iccord, tier date of bufh is 12-8-1981. The Radiot>gist has also assessed fhe age of fhe prosecutrix between 17 to 19 [years and, fherelbre, the prosecution tias tailect to prove t&e coi't'ect age ot uie prosecuttix tieyoud. reasoiiable doubt. 10. Now coiaing to f&e quest|on of commission ot gaug rape by tne appeliants. To estabUsh the ^bove fact, the prosecutrix has been examiaed as P.W. 8. Belbre refzorduig her stateinent Uie trial Court &as observecl ttiat sfie is not al^te to speaK properly as s&e is tiara ol neanng and, Uieretore, ner n^ottier l-'&iloiaiaa was sumnionecl tor puuiag quesuons to Uer uu-oijigii s^ns ui Uraon laaguage 011 y-b- 1999. She was re-examiacd af^er admiiustering oafii on 1-10-99. On fhat date also uutiaUv the Couift obseived tliat the witaess is uot able to apeak aud she answers fhe ^uestious t>y gestures and it tias been furtlier observed that no i|idependent person kaowing uraon laaguage is available and for tl(is purpose, fhe matter was adjoumed fhrice aad, fherefore, the fathe^ as interpreter rejecting uie o't^ [ ofthe prosecutrix Sujculwas engaged jecUon ot Uie tlelence. 'l'nereatter &er stateinent tias Oeen recorcted tfoin para a ot ner cteposition. SJie faas stated that she identifies the ^ccused persons. They are resident of \ T —78 SDt^'W^IR? wir sntw gRF¥ ~^Wvi^, t?tl1'H'l<o, 'teTOTy ...C-^.A'...y.o..'...2.^..7.^.% 37!^?CqsiWC;3^S?) tWTO Wffi3 CT^T <£• qmfwiN 'RTiRTf <f fSVf '((SRS'R ^; sfRm sff^r her viUage. At the time of in4ident, she was studyiag iu Class 6. Accusecl persons usea to taKe|ner ancl on ner relusal tney used to beat her by lafhi. They also us^d to fhreaten her not to disclose fhis lact to lier tat&er or else theil sfiall AiU lier. 'l'tie accused pei~sous nave spoiled Jtier iite aiid robDe^ tier faonour as a result ot wiucn slie becam.e pregnaat and gave bufh to a son. Her houoiu- was robbed under a niaago tree on 6-7 occ4sions. Oii being asked who is Robate, she poiated out towards Robat^ atias Piathvipai and stated fhat his name is Kobate. She furtlier stbted tiiat accused Robate took her to his house aad robbed her hoadur aad tiireatened not to disclose the nicident anct at ttiat tune, Uie ad.mitted fhat they residtd ui pfher accused was also present and both ofthem robbed her honou(~. She has deaied fhe suggestiou that she had relationship wifh Putiji and Kudo of thdr vfllage. She has |ier viuage, sne iias turtlier admittect that she had disclosed titie incilent for fhe first tune on fhe date of lodging the report. She has als^ stated fhat she has stated fhe fact that tfae accused persons usedj to assault faer by lafbi and used to tlxreateit her not to disclose ttd her and throw, however if tt$s fact is not writteii ia her diary sratement ot BX. U-4, men stie Uiat t&e nouse ot Kobate is locd suiTounded by the house of <] s tact to lattier or else fbev snail kiu •anuot give the reasons for fhe same. Uniission regaMing repeating tjie ottence on six occasions nas also been poiatea out ui ner cross-e^amuiaUou. sne tias rurmer aduutteci ted in the nuddle of fhe village aiid is kt&er viilagers, however she ^^1 not \ -^. ^S3^£: %B7B»3h-, "S9 an^r TnT3iA?r " 1 gi6 ^a? ^1<4ld'4, ^ti1^1<c, f^dl-M^ ..Cx-./5.:..C?;?..-...2.AlfiJ.^. •(raq?(-cp1 'ranww'gg sitei ^hi^ifef^H 'iTffl^f "^f 'f^1^ <f^^.R ^affiiqan^t disclose fhe fact to any vfflag^r. She has dexiied that the chitd was mrougn Mito ana Kudo. coqiplauaant 11. F.W. •t SuKul tae daughter is haiid oflieariag aii^L on account of wrong deed of] spoued her tife. After they lear4t daughter and sae named fhe ^< onence. L'^. yuuuarls Uie stateiueu^ wUQ tias also statecl tttat a ine^tui the said meetiag her sister ha4 aacl stated tnat Uiey fiaa rot>b$ct toe proseciitnx l-'.W. 1U ^flilc has also stated that her slie taUcs titUe. KJie becaiae pregnaat fhe accused persous aad Uiey have about fhe pregnancy, they asked her pccusea persons as perpetrator ol tae ol brotlier ot Uie prosecutnx l-'.W. y iag was convened in fhe viUage and ia ponited tcwards tlie accusecl persons her honoiir. Stateinent of mother of is also in t&e sunilar luie. 13. lt tae eviaence adduced by tnese wituesses particuiarly Uie evidence of fhe prosecutrix is ^xamined, itwould be evident fhat her statenient was recorded by| fue trial Court on ffae Dasis of interpretanon ofher signs andjgestures by her father Sukul. It is also not ia dispute that the writtei| report of Ex. P-11 was lodged by Uiis witness. The evidence is also the witness faave also not beeli recorded and oiuty interpretation by ttie tauier nas Deen iccoraect aot ni question auswer torm. Ssigns ot S if the evidence has been recoided on the basis oforal evidence giveji by fhe prosecutrfac. There is evideuce available on record that flie pjrosecutrix was studyiiig ui Class 6 or \ .-f;3^;i'•&$?>>„. an^l ~ss Fww wnsn^i'g^TC p -gs( ^.i-pncpT, ^y'i<o, (»4c'iiytj,< ..C'r../9,,Mi?.-,,^j,^/;^ sn^iTraq? •wifwNiwwB^ fe^ xN^rc qiaBOTSll^T Class 7, however fhe trial Couj-t did not inake any effort to record Uie stateiaent ot Uie prosecu 14. So far as flie statemenli ui wntten tbnn and in Uiese cu'cumstan.ces, iinplicit reliaacje could not be placed on tbe statement of ttie prosecutrix. ol otlier wiaesses is conceraeu, ttiev are inofher, fath.er aad brot^ier of the prosecutrix and Uiey have deposed before the Court on t&eBi by ffae prosecutrix. ttie basls ot Uie inlonnaUon given 15. On tne basis ot ttie altiresaid anaiysis, U-us Court is ot Vae opinion that tlie Court beloi|F was not justmea ni convictiag toe appeUaats by placuig nnpu<(it reUance on t&e stateinent ot ttie prosecutnx and Uie trial Co+.rt ought to have extendea benetit ot ttouDt to t&e accusect persons.l 16. la fhe icsult, me ias judgiaent of couviction ani [ant appeal succeeas. 1'lie unpi-ignea order of sentence convicting fEie appeUants under Section 37q(2')(gj of I.P.C. and sentencing tb.em. to undergo R.l. for 10 years arejset aside. Ttie appeUaats are acquitted ofauthe charges. The appeiiajat No. 1 is stated to be on bail. His bail bond is dischai^ed. The app^Uant no. 2 is stated to be ia jail. He bc N- set at tiberty torttiwitn it no refiuirea in aay ot&er case. " / ^/