. .E..’ m ma; 1E 209M WW, EWIW E, W .r../ mm Wm (W) . R‘L 200w WWW l WW§WW ém‘msnam undergo RI. for 4 years and pay paymSHt of fmE to fglThsr revapactivdy. n 4., CaSE of the pmsscutian in a mport Vida EXP] 1 m Poli: gnaltionin‘g thErBin that 011 Thu came to their r€$id6nc€ 1'11 1116 and thersafter $116 along with grounduut fi€1d of th€ accused ‘his wife returned 110nm for c about 1 1.30 am. Exprsssgd his $€xua1 intarcou1‘s& with her a ths 115mb: of 1161“ casta T116 a Gut hEr undm'wear by tearing it hied to cry, he gagged her m her 0f life and Iepn'maxxded allyone. {PWQ} and maternal uncle Vehitram {PW-3). grand-father Budhiyar and Vi, Panchayat, however, he did 1101 lodged. After registration of th Constable, seized bloodetamed the prosecut‘rix ‘Vide Infomaation Report to Schedul " a fine of R$.2,0GO/ —, in ciéfault Df undergo RI. far two monthS, briaf iS that the pmSecutrix lodggd :6 Statian Kapu 011 11.10.2002 rsdav ia 10.10.2002 1116 accus€d 11'11g to engage her as a labourer accused and his Wife wellt to the ‘ weeding. Around 11.00 O’clock ing. Thereafter, theaecused at tention to the proseeutrix to have on her refusal he abused her in sed threw her on the earth, took d forcibly raped her. When she h with his hand and threatened not to disclose this incident to She narrated the incident to her grand—mother Jugiya Thereafter, her hitram asked Rohito to come in ‘come. Thereafter, the report was crime, PW-ES Chhatar Singh, Head i First lice ,_.~_if eces of cloth and underwear from EX.P,’3 .__.@‘, GRPRJ FS/246 7’”007 5&00"). and thereafter sent the Castes and Tn'bes Welfare Po 1 k o n c 0 h m u > 1 t r mw,m,m . w...z WW m (W) W mwm 3 (Pw— 13) ta 7.. Tame. nn‘ng investigation caste was taken info possession ViCie :nt for radiological exalninaiion to )r. 11K. Tandon (PW—4) examined EXP/5. The prosecutrix was also 11d D1‘.(Smt.} Susma Ekka (PW—7) rt of EXP] 7. The slides of vaginal ion vide EX‘Pi’é. Site plan of the :nce was formerlv regisiered Wide ition‘ Clothing of the prosecntrix e sent for Chemical examination to aipur vise. EX.P/ 16‘ The Station he spot map of EXP] 14. The al examinaiion to District Hospital, €Xam1'11e him guild Station for registration of the 0‘ cartiflcam of thE. prosacutrix EXP/4. Tha prosacutrix was S6 KG. H0313i‘ia1, Raigal‘h “71mm I 1161‘ and 3ubmitted his report'of se‘nt fqr madical axmnination 2 examined 1161‘ gum gave 1161‘ mpg Emear WEre taken into pOSsaSs madam ‘is Ex.P/10. Th6 offg EXP/4 m ths Sp€cial police 3t and slides of vaginai smsal wex Foransic Scisncs Laboratmy, F House Qfflcm‘ also prepared 1 accusad was also 36m for umdic Raigal‘h where BLVK. Msh submitted his report of EXP] 1 3. Afisr completing the inv tigation charge shoot was filed in tho Court of Chiof Judicia; committed tho samo i0 tho Spa (ial Court, Raigarh. Charges under Sections 376 of IPC, 3(1)(Xii) Tribes (Prevention of Atrociti framed against the appellamt, in moor to establish the char es examined 13 witnesses in ail. There ter,‘ statement of the a cused was recorded under Section ' gistrate, Raigarh who in turn Scheduled Castes 65 Scheduled Act anti 506—3 of the IPC were 110 ahjured his guilt. Prosecution GPRJ —— FS/246 2/2007 vr~ 50,€=iV). b UKI’KJ rD/L4D u! 1 I J v mwswm ea‘rmm in 299v d f a o ) 5 R W mm.g/r g $2., WW (W) a 2009 WWW WW t4 %a‘f%maan%¥r WWW 313 of thé C1‘.P.C. in which ha denied the circumstances appéaring agains‘t him in the pmsecuh‘ot. case and pleaded innoccinca and faisa implicafion. He 31$? pleadéd that ha has 13min imp1icat€d in the above crimé with an intsnt 011 to Gust him from the villaga so ‘ that his property“ may be grabltted a11d they may racaive a sum of Rs.50,090/ - fmm me Government. He also p1€ad€d that he was not capable of perfOmn'ug sexual intercourse. However, learned 3 Trial Coui't after healing counsel for the parties, convicted a11d sentenced‘me accused] appellant as mentioned above. I 4. The fact that the prose rix belongs to scheduled tribe and at the relevant time she was ed about 12 years, has not been seriously disputed. Even othe Wise, from the statement of PW—S D.Si Kanwar, Naib Tehsildar has given the caste certificate of EXP/8 in which her caste is s iown as Uraon which comes under scheduled tribe community, it is established that the prosecutm‘x belongs to scheduled tribe co ‘munity. From the statement of Dr. UK. Tandon, Radiologist, who ssessed the age of the prosecutrix after conducting radiological ‘ animation 12 years and from the statement of her grand—moth r who has stated that age of the prosecutrix at the relevant tim was 10— 12 years, it is established that the prosecutrix was 1’2 y s old at the time of incident. 5. Conviction of the appell 1t is based on the statement of the prosecutrix (PW— 1) as also statements of PW-Q Jugiyabai, GRPRJQyv FS/246 2’“007 i 5€;,0€'0. c t ag W 0 a ec r e WW,W,W m W0)" @ ../ ; WW (W) v1 200 'L/ mmm‘ WW§WW § $§maném gram-mother of thf: prosgcutrix, PW—3 Vichitmm, matsrnal muck of ths prowcutlk and PW-1O Budhiyarsai, father of the 13TOS€cufrix and PW—7 Qr.(Smt.) Susma Ekka who Examined i116 prosecutrix aftvsr the incident. 0n LLaaIned counsel for the appellant submits That thsrE i3 11o eyew’i‘mess to The 'incirlant, conviction is basod on the soiita-ly ‘ testimony of FW-l the prosecgtrix. He further gubmiti; That the 3 account éiven by the proeecu trix before the Court is in compleie variaiice with the ELR. lodged by herself. Her version is also contrarlicted by the medical evidence as the prosecutrix has claimed in her (ieoosition tha‘l ai the time of incident she became unconscious and sustained various iiijmies on her knees, back, neck, legs, hands and nose aILd blood was oozing, however, in the medical examination no extertal injtuy was found on the person of the prosecutrii. He further submits that all the Witnesses examined by the prosecution are highly interested witnesses a3 they are close relatives of the prosecutrix, though it has been claimed that Panchayat was convened after the incident, however, none of the independent witnesses of the Panchayat has been examined by the prosecution. Moreover, there is no explanation for delay in lodging the F.I.R. as ’he same has been lodged after more than 24-V'hours of the incident The prosecutrix herself admitted in her deposition that there are cnly two families belonging to Mahkul caste in 'her'village and her elders want to oust them from thqM W“'It" , t«r GRPRJa— FS/246 2/2007 r~ 50.6113 VJ XI-Hc—78 W mwg. g 2. Hi 200% mm (W) WWW WWW g mmmiw agaim‘amm vi1lage a3 they are skunk .‘md on this ground tha appdlail’: has been faleely imp1icated in t’bJe above crime 7. O11 the other harrd, harmed couneel for fhe State supporteri a f the unpugned V Judgment . of 111e tmal . Couri and submrrted . that even x % ‘ r on the uncorroborated testimony of the prosecutrix convic’rion c2311 3 be baSeti. In me inSrant cat'seevereion of the prosecutrix is duly corroborated by PW—2 Ju‘giyabai, PW~3 Vichitram arid PW-lO Budhiyar 3mgh, before Whom the prosecutrix dieclosed about the incident immediately after ’be ineident aS also from the Statement of PW-7 Dr.(8mt.) Susma Ekka, who after examination of the proeecutrix found her byme n torn. 8. I have heard learned counsel for the respective parties and perused the oral and documentary evidence available 011 recorcl. it ifs settled law that in a case under Section 3&5 of the IPC, conviction can be based eVen upon the uncoiroborated teetimony of the proeecntrix if the Same inspires confidence and ‘e of law as the prosecutrix is not an accomplice but victim of th incident. 10. Firstly, so far as‘t argument of learned counsel for the appellant that there is ii lexplained delay in lodging the FIR. which is indicative of th. fact that the same was lodged after re—e0 sultation is concerned, admittedly the .u corroboration is not a 1 s h . i Or$%2/ XLHc—78 mafaam y WW MW *WW incidmlt is of 10.102002 (at the sanie was lodged by the 12.30 hours). In the report i; was lodged belatedly beoaus: Vichitram, matarnal mick of about 11.80 am.) 211161 th€ report of prosecu‘u‘ix on 11.10.2002 (about has bsen mcmtiomad that tha same of c011v€11i11g of Panchayai PW—S " u 1‘ clam of i11cid€11t itSElf tlmy h; ‘he prosecntrix has stated that on the thé pohée did not register thaw rEpOH on that date and on next day Thouch commm'ng of Panchayat 111 lodgmc the mpmi 110 €v1d€nce of Panchayat has 136611 addlked and 110 mdapend‘ént “amass has h 6.611 axanlinéd. ThBreforE, belatedly has not been explained satisfactorily. prasecutrix has Stamd in her with hm" parenta, somE 4—5 months back tlm accus€d camE to hm" 110113.: af ”that time 11sr father, uncle, aumy and. grand—mother were preaent there, alSo expressed her Wilh'ngness to accompany them for weeding, however, the aecueed declineci to take her. At the time. of weeding, the accused and his Wife were present in the field and afte1 home for cooking and thereafter her on the earth. At that time the accused was putting on Lmtgi and underwear. After committing the offence, she fell uno‘onstious, at that time she had shouted, He had also asked her Their réport was mgistemd, g . given as ths reason for d51ay ‘ M . S the reason tor lodgmg the report PW- 1 thE dsposi‘don that she rcsides i1} viilagg he as [ted her to come for weeding his groundnut fleid, her aunty W. some time at about 12.00 noon the accused sent his Wife to committed rape after throwing WW a 200M warm (W) however, the accused threatened to kill her. td gone. to lodge the report, however, ‘7 XI-HC 78 WW, 5?‘ H3 $, W ‘ C/f‘fa g 2 WW WWW (W) #6 .z ..1n 200 H WWW S WW WW %aifanm to wagh bar undergarment W: incident she 1‘Eturned 110m grand—mother arid uncl€ Ma ‘ not pl‘assnt at 1101116. S116 h convmled in thE villags in howevar, he did 110i 001316 th‘ is evid€11t that $116 has madf. ”thé ELR‘. regaxdmg falling pointecl (mt in the cross—Ex d6p0$ition $116 has stated t kn€€s, back, neck, 1egs, han injuries. She has also state In her cross—examination portion of FIR. of EXP/1 Viehitram had caHed Rohit has further sta‘eed that afte‘ became unconscious, there manner her honour was 1‘01’ after one hour and then i‘avis‘ned. It is true that s inseited his penis into her 'v} thee fime. PW—Q Jugivabai, s Jich Wag $ta1'116d with blood. Aftér the 3 and narrated ”LEE. incidsnt to her lavir. At that timE hat parents was as further statad ”that Pancha‘vat was which thE accus€fl was also cailed, are. From pmusal 0f her statement it impr0V€m611ts upon her stamment 1711 unconsciouS which has bEen duly animation. in paragrayh 10 of 1161‘ at she had sustained injuries over ds and blood was oozing from Edi the that blood started oozing from nose. paragrayih S she has denied ihe that her grand—father Budhiyar and for Panchayat. In paragraph—4 she she was thrown on the ground she rter, she does not know in What bed and she regained consciousness ‘nlv she learnt that she has been 1e does not know that accused had gina because she was unconscious at grand-mother of the proseoutn'x, has d to the accused that she and her e together for weeding, however, the and send her grand—daughter alone. i kiVi inted that she had pi‘opos grand—daughter hath will co accused told hei‘ not to com i .Cqz g w WW Hi 2009 mmm mmwifgtam $Wa11é¥l Ai about 00 p m hm giain -\ laughter oamo back and complamod that i116 accussed after ssndmg ,WlEn 3116 W213 alens tlnmx‘iing , her undalwear, The abow mammlal uncle. on the sauna d She crow—examina’rion bv €115, p11 Frosecutrix had infammd ha Karn’?‘a11d had threatsnsd 1161‘ Wham i116 offence was committ house and if someon6 Shouts $3136 is amh'bla from their ho Shoum of her gramd-daughier. after thE incidsnt blood was o of the prosecutrix antl she ha This wigmss has also arlmitte- Should not live in the viliage Vichitram has also stated in t‘ Tim proswumx had told him t: Rollito for Wasding, 116 had th. rapped hor. Rohito had aske‘ aftor waShing the Cloiho and incidsm aiso 11s would km l Wimoss 112$ Stated thai 011 thE went to lodgo the roport,. 2/2007 50,000‘ w f / the glderss of t116 Villaga VW, hiS Wifo home robbé‘d hm‘ honour Iier on the earth and after taking out incident was; also nan‘atod to 1161‘ ay. Thomaftor, oha had gono to call has been declared hostile 811d in the aseeution, she has; stated that the. that the accused forcibly did ouia with life against shouting. The place ed was just 200 steps away from her from near the house of Rollit, the LISe. However, She did not hear the This witness has further stated that J‘Zmg from the legs, knees and back d stated this fact before the poh‘ce. 1 that they wahted that the accused PW—3 He has stated that iat‘when she had gone to the field of town her on the ground and forcibly l the prosecntrix to go to her home «n as he was a Wicked person. he similar lines, further not to disclose about the ier. in the cross—examination this date of incident in the evening thev ' ever then report was waistereu on GRPRJ H FS/246 6 mw,m,m Wm (13W) v - v; XI-Hc—78 Q7? “i 200(1 m Gard § a ’ WW (W) WWW N WW &Q§W * §Eai§ma=né¥r sV m. th6 116Xt day mornmg. 111 paiagraph—é this witnEss has stated thai mehayai' and only 3'4 persona of the W— 10 Budhiyaraaj, father of the on the date of incideni he returned at that time her daughier informed .1 the groundnur fieki Where ahe had iesa haS been declared hostile. and :ution. 111 hi5; crow—examination he t hie daughter had informed him that [or to diecloae about the incident or graph 6 of his cross-examination this after lodgingthe report they have * Government. Dr, (Suit) Shaina Ekka (PW-7) the are Ci‘oae relatives of the prosecutrix at she sustained various injuries over ‘nt Stands falsiiied, PW—7 D1‘.(Smt.) i2, of her statement has categorically intei‘hal injuries was found on the thay had not C011‘v‘6116d any P locaiity had gatlmred.‘ P prowcutrix, has Stated {hat home at about 12‘00 noon, that Rqhito has rapped 1161* i gana for weadmgf ThiS wit 01‘03S—exami1md by th€ prose haS d€ni€d the suggasfian the Rohito had thraamnad 1161* 1i 61% ha Shai’; kill her. In para Wi’mESs has admitted that recaivad RS. 16,000/ — from th< From the statement oi‘ VErsian of £116 WitneSSeS who and that of tha prosecutix Th 116.1” person chu‘hig tho incidi Susma Ekka i11 paragraph 1‘1. r StatoC‘L that 110 €xter11al o1“ parson of the proaecutrix. 12. Leanled hial Court in brushed asie‘xe the above d proaecutrix bf; simply menti halagraph 17 of the judgment has isorepaney in the statement of the ing that though no extelhal injuries x M i Q‘ o h m m m¢rg g 2. “i 2007 3mm (Witt) ‘; 15 4 .L {1 Eé V1 200'7 67% 3mm (W) mmm WW§§QW ’ aswmm Iz g § appellant who i3 admittedly 43 years 01d marn'ed man i3 that 116 and his brother are only N76 famih'as in the village beionging to Mahkul cash: and rem of $6 villagers; am tribe {w cas‘m, t11€ COmplainan‘i paliy Wi‘ih a}; intention to grab tlléir propmiv “Tani to ilSt ’Lhem from €116 Villagé and themfora, tha‘} haV€ impEicated him «fin a faisa cast A11 Tim Wiumssas- am family mailbag of i116 . pmsccu’aix aim as Such highlj? int€1~est€d Wimasws alxd they haw impiicamd the accus‘itd £11 a fed$e3 Saw by tuton‘ng a 12 years 01d 3 girl ié. t1§€ pmsacu‘u‘ix. T116 Vérsion of i116 prosecutriX wha is ‘ admitmc‘dy 1‘2 years 0k}. girL _ does: not inspire confidence aliélr poesibiliiy of her bemg a tui’o ‘ed witnese caiinot be ruled oui for the following reasone: (i) As already detaile 1 above thatin the. deposition of llie prosecuirix befor the C0111“: she has made material ’improvemente up 11 her earlier versiong given in the repoi‘: of EXP/’1 1d diary Statement of EXD,’ l, lie? vereioil That she became unconSCiC-us after l3ei11g illrown on the gi‘o 111d and i‘emaij'ieel unconecious foi‘ a period of one h 111‘, that she suSt-ained- numeroue injuries over V8 ions parts of her body siands ’ . contradicted by 1e staiement of D1~.(Smt.) Susma Ekka {PW—7) Wh has noi‘ noticed any external or internal injuries o elsthe person of the proeecn’tiix. iii) in the exaniinaiio —in—chief the prosecutrjx claims ”digit e . she was i‘avi‘ 1 po by ihe accused, however, in “the n ‘ W m . .2/ n1 2007 Ca‘.‘ ‘ 5% Wm (W) mwm 13 $qi5q"qW'§WIEE‘ aFBi‘Fcl'Rm (iii) a . (iv) {V} $116 statss That afwr S116 was thrown 011 1:116 e nth she becamii unCGnSCiouS and thririzfm‘e, $316 has 110 knowmdge ragal‘ding the act Qf i appellant aim came to know 01113: l consciouelless‘ sear emd vagmal eh'dee were sent for tion for confumation of biomlstaius however, report of the ESL. in thiS :11 flied. ‘ 11.30-12.00 110mg of 10th Octob'er, ‘the same was loclged after 24- home aseigned for deiay in the FIR, i3 the prosecutrix as a1so {he other have denied convening of any the contrary, they have Sfated that edge. the report on the. same evening, following ‘OSecuiion haS failed to explaiii fhe e. report Satisfac‘corily. available 011 record that the ace'useé re the onlv two familieS belonging to q; and the complajhairt parry “Tamed Handing him ae eliunk and as; Suc intercaurSe ‘by th Wh€11 $116 1‘egaiu€{ Th6 seizm‘l underx chlsmical examme a11d Spalmatozoa, regard has; 11ot b6: Th3 incidant is o} howavar, report 0:: anti th€ wason contradicmd by wif11ess€s who I Panchayat. On {116}: had gone to E however) marningv The ‘p: delay in lodging There is evidence and his brother Mahkul comm‘uir to ouet them by l They hacl a purpo recorded only on the it was ‘ h 'e to iinplicate the appellant in a false mammerhwefarmgr crose-examinatior; WW,W,W Wg.q > Wm WW (W) W 20% mmm ,4, WW WW %sifatrawl%¥1 m“ (Vi) at aboui 11—12 11011:, in a 1161C} user th€ ras‘k’i L oito plan of ExP,’ 1G as alSo from fhe otatomont of tho Vi1? Tho incidom’ alloged‘y occum‘oii m tho broaii day lighi 6 of £116 acouosd a3 1'3 ovidm‘z‘i from $1Loo £116 prosecwu ix and 14a On thé ba$iS 0f afomia‘aid opinion tjiat th€ aCCeun‘i givan ‘1‘6h'ab1a and thsf. swim does 110‘ The Courf‘brilow has ignorod Thi- ma-Lo‘fiau A. ’l c1i&:c1‘€pai1ciess prooo'ni i11- a11d Tho fact that hor vorsion has ”6:16 stamment of tim p1‘036cmrix bwn conHadictsd by 1161“ msdica‘i examination raport. ’It is; not Saf€ to baso the conviction of 1116 appollant on tho 3016. tootmlooy of tho prosmcuin'x alix‘i othar mtérwta. at and 111$ family momborS and Tharofore, posoibih'iy of falSE imphcafion by tuton'llg the prosocutt‘ix cai‘met b6 rulsd but. islatod witnosgoo who nouiished ailmmSiiv ‘towaxds. the app€11a 15. E11 the mam, 111s app€ appallaln uniiEl‘ S€cti0n 376 of i a1 S’ucoeodo. Conviction of the he IPC and Saciion 3 (1) (xii) of tho SCh€€1uiefl Castes 85 Schadukd ’1I‘YjbE3 (Praven‘rign 0f Atrocii‘i6$) Act ancl S€ntEnC€3 imposed themon of $116 abova Chargw. Ha be $6‘i‘ in emv other 05:36. 1 aim of tho considoroi} )y the pl‘oosouu'i‘z; is not Wholly inspire coniiiionoé of tho Coui‘i. , are. set aside and 116 i5; acquitifiii ‘a‘x liberty fol’&1with, if not raquimd Jr/ Sdl- DHnmNDRA 1mm?“ 1i Judge i GRPRJ FS/246 2/2007 503%. $ 363, Whi“11 iS high? mpl‘obablo. m : }