!T1 A Cr. AopenS No. .) Bihari Lct Pstie Vs. rate of Q Post for Jud9msnt: 08.11.200i Sd/- Dilip Raosaheb Deshmukh Judge •c-.^ E\-'^ s« ^E E ^E Bshari Lai Patie Vs. State of ChhattiSQarh Shri Scutam Khetrapa!, learned Counsel for the cppeilant. Shri M.F.S. Bhatia, Pnnei Lawyer for the Stcte. (Oeliyered on this 08 a'ay of November 2006} S!" is o.ppeal ss di! dated 14 /'.ugus' t-h ^i^J:A;. 2006 deilvered bv Shr'. N.K.Chandravanshi. 4 Additional Sess'ons •'•I^IS?e Jucjqe, Bilaspur in Ssssions Case apoeilar.t was convicted under Section 450 and 376 (1) of the I.P.C. and sentesiced to uncerao riaorous imDrisonment for 5 vears and o fine of Rs.5000/- and in defauit to undergo further rigorous iiTiDrisonment for six months under Section 450 I.P.C. ond to uneieroo rigorous impr'isonment for 10 years and a fine cf Rs.10,000/- and in Gefeuit to undsroo nciorous imorisonment for one vear under Section 376(ni.P.C. 2. Shri Gautam Khetrtpal/learned counsel for the oppeSian* has, at the very outset, stated thot in thls appeoi he does not dispute the fact that the prosecutrix was aged 12 yecrs c.n the date of occurrence anc] that the aooeiiant is the cousin bi-other of the prosecutfix. ,^7-^. c^-'' 3. Briefly stated the pro^cution story is that on 26 November 2005 the parents of the prosecutrix had gone for work. The prosecutrix, csged 12 years, was in the house with her younger bro-riier Tikaram, aged one and half years and sister Monisha, aged tvuo years. At about 12.30 P.AA the oppellcnt forcibly entered the house of the prosecutrix and laid the prosecutrix on the cot orid after removing her underwear- committed rcpe on her. Hearing the cries of the prosecutrix, uncle Teejlal P.W.3 and Kajkumari P.W.2 arrived. The Ctppeiictnt hid under the Soda i.e. the place for keeping haystack in the house. AAother of the prosecutrix, Rajkumari P.W.2, locked the @oda where the appeilont hid, from outside. The prosecutrix who was bieeding profusely from her private part narrated the incident to Raikuman P.W.2 and uncle Tee i.1al P.W.3. . 4. On the some doy i.e. 26.11.2005, Teejial P.W.3 took the prosecutrix to P.5. Kota situated 9 kilometers away from the place of occurrence where the prosecutrix lodged F.I.R. vide Ex.P.l at 4.30 P.M. On medical examination by &r. Nikita Kanwar P.W.17 on the same day at about 6.00 P.M., it was found that the prosecutrix wns bleeding due to injury to her private part. There was tear of vagina, hymen was absent, vagina was red omd swollen and painful on touch cnd was bleeding from the 1-ear. The size of the vaginal tear was 1.5 cm x .5 cm. The injury on the private part of the prosecutrix was very tender. She was not cooperating for detailed exciinination. Dr. Nikita Kanwar P.W.17 opined that the findinas recorded by her were suggestive of rape. 5he prepared vaginat stide of the prosecutrix and advised chemical examination by F.S.L. Vaginai s!ide was sealed cuid handed over to Constable of P.5. Kota. ^^ A - \ ,1,,;-.;/ „•*!'-\ 5. On 27.11.2005 br. Sunita Verma P.W.14, Head fiynecologist and Obstetricion at the Chhattisqarh Institute of Medical Sciences (C.I.M.5.) examined the prosecutrix under generol anesthesia at 2.00 P.M. and confirmed the findings recorded by Dr. Nikita Kanwar. On examination, she found a central perineai tear sized 1" with another central yertical tear in the vagina sized 2" which was bleeding. The wound was repaired ond the prosecutrix was admitted in the C.I.M.S. She opined that ttie injury sustained by the prosecutrix couid have been caused by hard and biunt object within 24 hours prior to the examination. The appeliant was also medically examined by br. Sandeep Dwivedi P.W.6 on 27.11.2005. It was opined that the appellant was capable of performing sexual intercourse. The underwear of the accused which had blood and semen iike stains, the semen ejaculated by the appellant and pubic hair were sealed by Or. Ssandeep Dwivedi cnd honded over to the Police Constable of P.S. Kota which were seized vide Ex.P.15. The underwear- of the prosecutrix omd her va9inal slide were also seized vide Ex.P.16. The birth register of the Tr-ibal Weifare Depar'ttnent of ©overnmentof Madhya Pradesh wherein date of birth of the prosecutrix was entered as 04.11.1993, was also seized vide Ex.P.ll. 6. The prosecutrix was admitted on 27.11.2005 in the C.I.AA.S. ond was discharged on 30.11.2005. During investigation, spot map was prepared by Ramnath Rathore P.W.8 vide Ex.P.7. On 27.11.2005 from inside the house of the prosecutrix. a cloth stained with semen and blood which was lying on the cot was seized. The Newar of the cot which also had bloodlike stains was sei2ed vide Ex.PA. The articles mentioned above aiong with the underwear, pubic hear and semind :a;a ^ slide of the appellant and the underwear <md vaginal slide of the prosecutrix were sent for chemical analysis to the F.S.L. on 31.12.2005. Vide report Ex.P.24 excepting the pubic hair ond seminal slide of the nppellant, blood was found on all o-tiier articles. Similarly, excepting the pubic hair of the appellant, ^resence of semen and humon spermatozoa was confirmed on all other articles. After completion of investigation, the appellant was prosecuted. 7. The appellant abjured the guilt, pleaded innocence and led no evidence in defence. Th® prosecution examined as many as 17 witnesses. Relying upon the evidence led by the prosecution, the learned trial Judge convicted and sentenced the appellant as aforesaid in paragroph l (supra). 8. Shri Sautam .Khetrapal, learned counsel for the eippellant contended that there is not even an iota of legal material to sustain the conviction of the appellont under Sections 450 and 376 (1) of the I.P.C. since the prosecutrix P.W.l and her mother Rajkumari P.W.2 had turned hostile and did not support the prosecution story. It was also contended that &r. Nikita Kanwar had admitted in cross-examination that whiie takin9 a sw'mg if the prosecutrix had fallen on a wooden stump which penetrated her private part, the injyry sustained by the prosecutrix could have been caused. It was urged that in paragraph 5 of her testimony, br. Nikita Kanwar P.W.17 had stated that no definite opinion about rape having been committed on the prosecutrix could be given. It was also argued that Teejbl P.W.3 also did not support the prosecution story and stated that since the appellant was present at the house near the cot on which the prosecutrix was crying he had taken the prosecutrix to the P.5. Kota to lodge a report ^"\ against the qspelloint on mere suspicion. Lastly, it was contended that the appellant was innocent and had been falsely impiicated on mere suspicion and the prosecutrix hnd sustained the injury on her private part upon a fall on a wooden stump from a swing which had penetrated her private part. 9. On the other- hand, Shri M.P.S.Bhatia, learnpd Pane! Lawyer araued in support of the impuaned judgment and contended that the report of the F.S.L. confirming the presence of semen ond human spermatozoa not only on 1+ie vaginal slides of •ftie prosecutrix but also on her underwear as also on tiie underwear of the appellant and the cloth ond Newar seized from the place of oecurrence ciearly established rape by the appellant on the prosecutrix. It was also urged that the fact that upon arrivai of Rajkumari P.W.2 cnd Teejlal P.W.3 the appellont hid himself inside the house which was locked by the mother of the prosecutrix from outside also corroborated the testimony of the prosecutri^ upon leadings questions in toto. It was urged thnt the prosecutrix being a child of tender years wos under the influence of her parents while deposing in the examination-in- chief but had narrated truly upon leading questions being asked by the prosecutor that the appellant had committ-ed rape on her. On these premises, it was urged that the conviction of the appellant under Section 450 and 376 (1) of the I.P.C. and the sentence awarded thereunder by the learned trial Judge was weil merited and did not call for any interference. 10. Having heard rival submissions, I have perused the record of Sessions Trial No.108 of 2006. The testimony of Rajkumari P.W.2 that on returnin9 home with Teejlal P.W.3, the prosecutrix told her *M Sat that due to the swina breaking down she had a fall on a stump which had imured her private part is nothin9 but a bundle of falsehood. She admitted in cross-examination in paragraph 7 that the father of the accused and her husband were cousin brothers ouid that a compromise had taken place between them. She also admitted in cross- exainination that upon returning home from the field she saw the prosecutrix crying inside the house cnd blood oozing from her private part. She further admitted that after bringing the prosecutrix omd other minor children outside, she had locked the room since the appetlant had hidden himself under the place for keeping hcystack i.e. Soda. 11. Teejlal P.W.3 has deposed that on returning home with Rajkumari P.W.2, he found that the prosecutrix was crying while lying on the cot and was bleeding from her private part. The cppellant was standina nearby. The underwear ond chunni of the prosecutrix had blood like stains. Therefore, he immediately took the prosecutrix to lodge a report of rape by the appellant. It is to be noted that nowhere in his entire testiinony, he has deposed that the prosecutrix had narrated that she had a fall from the swin9 upon a stunftp which had injured her private part. In paragraph 5 of his testimony, he has admitted that the cot on which the prosecutrix was lying had bloodlike stains on the Newar which along with the bloodstained Chaddi of the prosecutrix was seized by the Police. The above testimony has rernained wholly unrebutted in cross-examination. If the prosecutrix had narrated to Teejlal that she had a fall on a stump while taking a swing, Teejlal P.W.3 would not hwe taken her to the Police Station to lodge a report of rcpe against the cousin brother of the prosecutrix i.e. the present cppellcmt. The above facts explain ^ii'^^^9'/^:SsSsi:fS:''^^SS^ip^S the testimony of the prosecutrix in her examination-in-chief that on being pressurized by her parents to depose a concocted story, she being of a very tender age, had stated likewise in her examination-in- chief but onleading questions beina asked by the prosecutor adiriitted that the appellant had entered the house while she was with her minor younger brother and sister and after pushing her on the cot and removing her clothes and undressjn9 himself," the oppellont had forcibly penetrated his penis inside her vagina due to which she' experienced pain ond blood started oozing. She also admitted that on hearing her shouts upon drrival of her mother, the dppellant hid in the Sodaw\d, seeing this, her mother took her and her minor brother and sister out of the house and locked the door of Soda. There is not even an ioto of doubt that upon a compromise by her parents the prosecutrix had deposed falsely in her examination-in-chief ond cross- examination. 12. Bear-ing the natural human conduct in mind, it js clear that had the prosecutrix sustained the injury upon a fall from the swina, under no circumstances Teejlal P.W.3 would hwe taksn the prosecutrix to the Police Station to lodge a report of rape having been committed on her by her cousin brother i.e. the appellant. Had the prosecutrix fallen froin the swing, she would hwe sustained sonie external iniury on her body which she did not. Had it been so, the mother of the prosecutrix, on hearing the story narrated by 1+ie crying prosecutrix, would not have locked 1+ie appellant inside the Soda.. 13. The testimony of the prosecutrix, upon leading questions being asked by the orosecutor, insoires confidence and is wholly reliable smce. it is fully corroborated by Dr. Nikita Kanwar P.W.17 who had ;'!;:. ^•ii.!il?s?E@;i%E'?L^' IEMfc '&;feteR!fis<£iy-; found that the prosecutrix was bleeding due to injury from her private part. There was tear of vagina, hymen was absent, vagina was red ond swollen and painful on touch and wos bleeding from the tear. The size of the vaginal tear was 1.5 cm x .5 cm. The injury on the private part of the prosecutrix was very- tender. She was not cooperating for detailed examination. Dr. Nikita Kanwar P.W.17 opined that the findings recorded by her were' suggestive of rape. She prepared vaginal slide of the prosecutrix and cdvised chemical examination by F.5.L. Vaginal slide prepared was sealed ond hcinded over to Constable of P.5. Kota. The above evidence finds further corroboration from the testimony of Dr. Sjnita Verma P.W.14 who examined the prosecutrix under general anesthesia and found a central perinea! tear sized 1" with onother central vertical tear in the vagina sized 2" which was bleeding. Sub-Inspector A.S. Paikra P.W.16 has proved the F.I.R. lodged by the pr-osecutrix on 26.11.2005 vide Ex.P.l while she was cxccompcinied by Teejla! P.W.3 to the Police Station Kota. He has also proved the seizure of a white coloured cioth iying on the cot and having blood and semen like stains and the underwear of the cot having bloodlike stains and the seizure of the underwear and pubic hair of the accused-appellant and also the seizure of underwear of the prosecutrix and the vaainal slides prepared by Dr. Nikita Kanwar vide Exs.P.15 and 16 respectively. He has also proved that the aforesaid articles which were sent for chemical analysis, were received in the F.S.L. Raipur vide acknowledgment Ex.P.23. The report of the F.S.L. Ex.P.24 also establishes that the piece of cloth found on the cot, the piece of Newar, the underwear of the accused, the underwear and the vaginal slides of the prosecutrix had contained blood. It also establishes that the presence of semen and human spermatozoa was confirmed on the piece of cloth, piece of Newar, underwear of the accused, semen of the accused, underwear of the prosecutrix ond the vaginal slide of the prosecutrix. The presence of semen and humon spermatozoa on the vaginal slide of the prosecutrix and the piece of cloth lying on ths cot on which rape was committed by the dppellant on.the prosecutrix and also on the piece of Newarof the cot leaves no room for any doubt in the above mentioned cir-cumstances that the oppelldnt had entered the house of the prosecutrix for committing rape on her and had committed rape on her after pushing her on a cot. 14. No explanation is forthcoming from the dppellant as to why he was locked by Rajkumari P.W.2 inside the room where the prosecutrix was crying smd why was he found stemding near the cot on which the crying prosecutrix was seen lying by Teejlal P.W.3. The above mentioned circumstances read with the prompt F.I.R. Ex.P.l lodged by the pr-osecutrix and the findings recorded by t5r. Nikita Kanwar P.W.17 ond br. Sunita Verma, P.W.14 read with the report of the F.S.L. Ex.P.24 lewe no room for any doubt that the oppelismt had committed rape on the prosecutrix after entering her house and seeing her mother arrive had hid himself inside 6oda. 15. While assessin9 the testimony of the prosecutrix, the Court must bear in mind the human psychology and behaviourai probability. The injury on the private part of the prosecutrix, the prompt F.I.R. lodaed by her at Police Station Kota, presence of blood on the underwear of the prosecutrix and accused and also on the cloth iying on the cot ond its Newar and the presence of semen and humon spermntozoa in the vtt9inal slide of the prosecutrix leave no room for any doubt that rape has been committed by the appellant on the iB's-sSi^S^ts-S;* MW3^''^'-^-'^ Bia e'sa: E"'6"*; prosecutrix. The leoirned trial Judge rightly took into consideration the above facts and did not sacrifice common sense in favour of on artificial concoctlon called judicial probability. The probnbilities factor does not render the testimony of the prosecutrix unworthy of credence. Although in her examination-in-chief she tried to support the concocted story put forth by her mpther in view of the compromise, she narrated the entire incident truthfully upon ieading questions being asked and her testimony was corroborated fully not only by medical evidence but also by the report of the F.S.L. The fact that the appellcirit was seen standing near the cot on which the prosecutrix was crying by Teejial P.W.3, the fact that the prosecutrix was bleeding from her private part, the fact that a prompt F.I.R. was lodged by the prosecutrix regarding rape by the oppellcnt, the fact that the appellant was locked inside the house by Rajkumari P.W.2, the fact that presence of human blood was confirmed on the underwear of the appeilont as also of the prosecutrix and also on the cloth and Newar of the cot and the presence of semen and human spermatozoa on the yaginal slide cxnd Chaddi of the prosecutrix and also on the cloth and Newar, there is o built-in assurance that the charge teveled against the appeilant is genuine rather thon fabricated. 16. It has been reiterated time and again that merely because a witness has suppressed truth in the examination-in-chief, the entire testimony of such a witness cannot be discarded as unworthy of credence. In such a situation, the Court has to consider the probabilities factor; the socia! bctckdrop of the prosecutrix, and the other circumstantial evidence available on record and to sift the grains of truth from the chaff of falsehood. In 6ura Singh v. State of Rajasthsn the Apex Court observed thus: '^ 11 "11. There appears to be a misconception regarding the effect on the testimony of a witness declared hosti!e. It is a misconceived notion that mereiy because a wltness is dsclcrsd ho3ti!s his sntirs syic!s?ics should bs exciuded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryanof- heid that mereiy' because the Court gave permission to the Pubiic Prosecutor to cross-examine his own witness describinq him as hostile witness does not comp'tete'y efface his evidence. The evidence remains admissibie in the trial and there is no !egal bar to base the conviction upon the testimony of such witness. In Rabindra Kumar Dey v. Sfate of OrisscP it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliabie only by his declaration as hostile. Mereiy on this ground his whoie testimony connot be excluded from consideration. In a criminal trial where a prosecutipn witness is cross-examined and contradicted with the !eave of the ccurt by the party calling him for evidence cannot, as a matter of general ruie, be treated as washed off the record altogether. It is for the court ot tact to consia'er in ea.ch case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be belieyed in regard to any part ot his testimony. in appropnate cases the court ccn reiy upon ttie part of testimony of such witness if that part of the deposition is found to be creditworthv . 17. In the factual scenario, I refuse to countenance the suggestion made by the defence that the appeilont has been falsely roped in on mere suspicion. It appears that the parents of the prosecutrix after having lodged a prompt F.I.R. realized the traumatic effect on the psychology of their daughter and to save their own sociai status and also their reputation in society chose to compromise with the appeilant who was the cousin brother of the prosecutrix and tutored tiie tender aged prosecutrix to narrate a false story in court. In the above mentioned circumstances, the argument odvanced by the learned counsel for the defence thattheappellanthad been falsely 1.2001 CRI.1..J. fSO 487 2. AIR 1976 SC 202 3.AIR 1977 5C 170 i'S?'"?'!i'''""In..'F'?T!^S'?' , 12 implicdted by Teejlal P.W.3 must be unceremoniously thrown over. 16. Having thus considered the evidence led by -tne prosecution in its entirety, I am of the considered opinion that the cor.viction of the appeliant under Sections 450 & 376 (1) of the I.P.C. is well tnerited and cal! for no interference. 17. The on'y question that remains to be considered is as regords ths ssntence. The ttDpeliont has behaved in a shockinoiy indeosnt mannsr. The magnitude of the offence cannot be over-emphosized in the context of the fact that he misused his position as a cousin brother and protector of the prosecutrix and took undue advantage of the situation of the prosecutrix being o'one by subjecting her to a fo"cib)e ssxuai intercourse. Thus, it is a crime of which a very serious vtew fflust be tcken. In this view of the matter. the sentence awarded by ths teorned trio! Judge under Sections 450 and 376 (1) of the I.P.C. is wholiy commensur'ate with the magnitude of the offence con'i'Tiitted by the appellant and deseryes no leniency whatsoevsr. J-n rne resulT, i conviction and sentence Sections 450 & 376(1) of is disrr'issed. decline to interfer-e with the we!! merited awarded by the iearned trioi Judge under tha I.P.C. This oppeai bsing devoid of merlt Sd/- Dilip Raosaheb Deshmukh Judge