r-.ff WW COURT Cff CHHAms©ARHAT BILASPUP Criminal Appesl No.1076 of 1991 Rayindrabar sen of Khokhonbar, cned 19 yeor's, resident of P.V. 71, Police Station Pakhanjur, bistrict Stata ®f rtaihyc Pradesh (Now Chhattis9arh) (CrimJnal appsai under Sectiors 374 (2) of Cr.P.C.) SB; Hon'bteMr.T.P. ShcB'me.J. 'Q^ Present'- AAr.Vishnu Koshta, couns®!for the appetlaRt, Mr'.Sushii Dubey, fiovt.Adwcats for ths StaTe/respondent. (Passed on 30rtl June, 2010) 1. Chaltenge in this appeai te to the jue^ment of convictien & ord<Br of sentence dated 14.11.91 passsd by the Additioncl Ssssfons Judge, Bastar at Kanker, n Ssssions Tria! No.194/89, whereby & whereunder isamed Additiona! Sessions Judge oft®!'hotding ths <ippsi!wt 901Ity for the offence puTsh.Als under Sgctions 450 <& 376/511 of the Indi&n Psna! Cods sentenced h<m to undergo rigorous imprisonment for Thres years. on soch count. 2, ConvictiQn is chaitenged o" the 9r'ound that without eny iota of - evldence. the ^ourt bebw has convictsd & ssntenccd the appsltant oa afQrementioned snd thersby committ'ed iltegdity. 3. Cossof ths proeecution. m br'sf, is that tHe prssecutrix (PW-4) (name not mentioned) was o woraan of mdewtoped brain and physique. On 9.6.89 at ebout 9 p.m, she wes pre»ntatons m hsr house. the eppsltant .jcsirife into her house and commSttsd forcsfuily intercaurse with her. ESi^f —^ Aftsr the incident, ths appstiant f!ed QVBy from ths spot. After somstime hsr fethsr came to the house. byt on account of fear shs did not narrots ths tncidsnt to her father. On second day at Aout l p.m. she ngrrated the mctdsnt to her parents ®idwent to the poiics station, 22 kilometers away from the" villcge ami todged the FJ.R.en 11.6,89 flt <Aout 12.15 p,m, yide Ex,P/6.. She was sent for msdicatsxsiminatwn.but on 11.6,89 she wos not sxcmined. On 13,6.89 she wos examiFBd by Dr'.Smt.R.yactu 0aW-7). Hsr hymsn was found intact <md no evkiencs of cornmiss'on of ssxual intercourss was feund. Slidss wsre taken which was seized vide Ex.P/3. Underwear of the prosecutpix wos ^ized "ide sx.P/5. Ths accused wos stso sent for medical exammfftion; Me was exomfned vide Ex.P/8 and found cspobfs for* comnnlt!''ng intepcourse. 4. Statements of the witnesses were recorded uncter Section 161 of the Code of Crim'noi Pr'oc»dure, 1973 (in short- "'ths Cocte') and gfter cornptetion of investigation, charge-sheet was fited befwe'the JwK'M AAc^istrote First Clgss. Bh<mupmfq?pur,who in turn committed ths case to the Court ®fSessions, Jegdafpur, from where teiynsd Addjtioria! Sesamm Judge, Bastar ntceiwd the ca«OR trawfer for trial, 5. In order to prove the guilt of the aecused/appelfant. the prosecution has examined as mcny as 7 witnesses, The accussd/appetlnnt was examined under Section 313 of the Cods whsrs he denicd ths circumstonces appecrirg agglnst him snd cteimsd hnocsncs and faiss Implication on ths greund of rivairy 9r@up, 6,-After proyidjtig opprt-unity of hearlng to 1+ss parttes. tearned Addttional Sessions Judge, Bastar convictsd & aantenced the appeilant 7. I have hssrd tearnsd counssi for the part-ies, psrused ths judgment impugned cmd record of the triol Court. 8. Learned counsel fgr the appelkmt whemsntiy argued that m the present cass, ths prospcutrix ^W-4) is a womon of undevsioped broin who wse r»tin a position to stats the truth, therefors. without furthsr substantiye corroboration, hsr evidance is notsafe to reiy. As per ths evidencs of the prosecutnx.fui! ssxual intsrcourse hos been cofnmttted by the sppellant, but Or.Srgt.ft.Yadu (PW-7) has sategorfealfy dspossd that her hynwn was found intact md vsginol does not admit tip ®f fir^er which is su9gsstl"e of th®fact that comptete mtsrcsurse has not besn eommitt'ed w'th the prosecutrix, The prosscutr'x has not narrated the inc'dent ts her pflsrents when they come to ths house and as psr the F.I.R. Ex.P/6. shs narrated the mc>dent cfter Idpse of more thon 15 hours and th®F.I.R. was todged efter' about 40 hcwrs. 'Tke prosscution has not sxplainsd the defay in bdging ths F.I.R. In these circufnstances, evi<tence of sote witrwss prosscutrix is not safe to rsty for ths convtet'on of the appsftant. 9, On the othsr ha"id, leornsd Stwte ccwnsel supprtsd ths jydgnwnt ifflpugned and argued th.at evidencs of ths presecutrix in^irss confidencs and trustworthy ar>d is scfs to rsfy for ths a»nvjctionof the appsllflnt, 10.In crder to appreciate. ths orguments advonccd on behalf of the partiss, I have exam'nsd the svidsnc®addueed on bshaff of the part-ies. 11. &! the present cose, fl§eof ths prosecutr'x (PW-4) was sfaout 20 )«ars <rt- the time of commission of the aitegad incident. but shs wce a woinaR - -of uridevelop^y brain. therefors, questien of w'l! and conse-nt is immflrt-epia! for the comm'sslon of n^as, The presecutr'x (PW-4) hca deposed '" her ev'ctence that the- appeftant ccme to her house and commstted sexua! intercourse wM-h her. When hsr parents cam®.thcn , sba narrated ths jncidsnt -to them cnd wcnt to the podce ststion and y-d the F.I.R, She wgs examtnsd by Dr'.Smt.R.Yodu (PW-7) who haa 'cateyricalSy (fepssed in her ®vi<jence that she h» examined ths ~'\ ^' f' ^. "sk "'^ ^ ^.-8¥/ -^- "*',. prosecutrix twics. The prosecutrix wns a woman of undsyBfoped physique <md brai". Hymen wcss found (ntact arid vt^inaS doss not admit tip of finger which is suggestive of ths fect thsxt no ssxual interwurse has been committed upon hsr. 12, Harendra Majumdar (PW-5)< fathep of th«prosscutrix. has deposed in his svMence that on the date of i'lcidait ot d>out 10 p.m. he carne to his house and c^ain went to ths fjek!, hsr wife cnme to her twuse Gt dbout 10.30 p.m, The prosecutrix was present alow in his hoyss; On the second day betwsen 12 •te 1 p.m. when hs dirscted her for" bath. then she toid that ws the ppevious night the appellant has commstted ss?<uel intercourss with her, thcn he eonvsned ptmchayat cBd fmosl!y bd9»d the F.1.R. vide Ex.P/6. He hcs admitted in para 5 of his cross-sxamtnation rslating to rivs!ry group in the Viitfl^. 13.Admitted!y, as psr evidence br.Smt.R.Yadu (PW-7), the prosecytrix is a woman of undsvetoped physique & brom. The progeeutrix hoa net narroted the incident imiKdiately to her papents and narratsd the incident on the second day, cfter lapse of more thai 12 hours and they hcvs iod9ed ths F.I.R. aftsr about 40 hoyrs. Commissten of sexua! intereoupss does not firid support- from the medica! svidsnce. In cose of witness of undevebpsd brsin. corroborort'ion fr'om mttependent sources js not a rute of law, but is a rule of caut'on, 14.In ths prssent case. cJrcumstanee.s end medical evidsnce are not in support- of ths evide"ce of the pposscutrix. In thes®cir'cumstanees. . svidsnce of thte prosecutrix who is fl worna" of undevetoped bram is not safe to rs!y for drawing inference of commission of heinous offence of Sections 450 & 376/51i of the Indisn Pfcnat Gods. IS.White conyicting & sentencing ths appellwit. the trici Coyrt has nW considered the aforssaid circamstcuTces <nd rsqulrsrnent of . cerftybor-atjon smd thereby committed i!te9<ttity. Convictjon & sentence •:^J' :.'""% !\ s%i{ •-Y—/-' .-a-w-ii _ ^—^ of ths appettemt under Secttons 450 & 376/811 of ths Indion Penai are not sustainabie under the iaw. 16. Rsr tha foregoing redsons. the appea! is clbwed. Conviction & sentence of the <q;peiiant under Ssctions 460 & 376/S11 of The Iridian Penal Code- we hereby set asids, The c^peiiflnt b®set at liberty at once. Sd/- T.P.Sharma Jadge