@ •W S ^uf <f. :-;3Bli:'iK^i :A EllEa^lj >T FOR •Sf w^. s-r Sd/- Dhirendra Mishra Judge ^l iiiish 'iSif -! Page 1 of6 Vs AAr K.K. Singh, Advocate for appetlant. AAr. 6.D. Vaswani, fiovernnient Advocntefor-the S+ate. ^j^igt JU&6AENT (Delivered on AL. 5.2007) The instant appeal is directed agcinst the judgment dated 22" January, 2004 passed in S.T. Kb.379/03 by learned Sessions Judge, Bas+ar at Jagdalpur whereby the cppeliant has been convicted under Section 376 of the I.P.C. and sentenced to undergo R.I. for iO years and to pay a fine of Rs.2,000,/-, in default of payment of fine +o further undergo R.I. for 1 year. Case ofthe prosecution, in brief, isthat on 1.5.2003 at about 11,00 n.m, accused/appe'lant Dilip Kumor took the prosecutrix, who is aged 5 years, towards fiis animal barn and raped her. Rukhman] Bai (PW-3), mother of prosecutrix, hear'ng cries of prosecutrix rushed there and saw her lying on the ground and accused was committing rape wi+h her. The accused ran away after seeing Rukhman!. 'Rukhmani narroted the incident to Ohaneshr'am Rawat. Kusha! S'ngh Rawat, Sitaram etc. On being asked, the prosecutrix told that accused had taken her on his !ap in a room, thereafter he took out her underwear and sat' over her nfi-er taking out his Page 2 of 6 6? 9SSSS! underwear. On examination of her private part, they found that i+ was swoilen and btood was oozinq. In the same evenina of 1.5.2003 at about 1900 hrs, Rnmesh kumar-, f'rther of prosecutrix, lodged the report (Ex.-P-l) in the Police Outpost Vishr'anpur'. The prosecutrix was sent for medical examinatio" to Primary Health Centre, Fnrsadih vide Ex.P-7, from where the lody doctor after preliminary examination referred the prosecutrix to Mahorani Hospital, Jagdalpuf;; for specialist report. Therenfter, the pr'osecutrix was sent to Maharani Hospital, Jagdaipur whers Dr. (Urs.) M. Tiwari (PW-8) examined her and gave her report of Ex. P-13. During investigation underwear of the accused was taken into lossession vide Ex.P-2. Accused was sent for medicat examination to Community Health Centre, Vishrampuri vide Ex.P-4A where Dr. D.K. Krishan (PW-6) examined him and gave his report E.i<.P-6. Spot mop was prepared vide Ex.P-11. Underwear of the accused and other orticles seized during investiga+ion were sent to Forensic Science LoborQtory, Raipur for chemical examination. After completing snvestigation, chorge sheet was filed against the accused/appel!an+ in the Court of Judiciol M.agistra+e First Class, Kondagaon, who in turn committed the case to the Court of Sessions Judge, Jagdalpur' for trial. buring trial the prosecution in order +o estab'ish the charge against the accused/appellant examined nine witnesses in atl. Statement of accused/appeilant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing ngainst him in the prosecution case and pleaded innocence and false impliccrt'ion due to enmi+y. Learned trial Court aft'er hearing learned counse! for the respective par+ies, convicted &. sentenced the Gppetlnnt as men+ioned above. Learned counsel for the appellant con+ended that from the .evidence available on record the offence of commission of rape has not been established. From per-usal of the statement of !ady Page 3 of 6 ?1^:E!i!^;^ doctor (PW-8) it is evident that o" medica! exam'nation of the prosecutrix no sign of rape was "o+iced and only possibility of attempt to comm!+ rape has been shown, even then the trial court has convicted the oppello.nt under Section 376 of the IPC. Placing reliance on the judgment of Supreme Court in the matter of Guddu I. 6) SBR 196, it is submitted thct the facts of present case is Identical to the factsi.of above cited case and in the identical circumstances the Supreme Court convict'ng the occused under of IPC has he!d that nppropriatesen+ence was »/'J1 imprisonment 5 vecirs. 5. On the other hand, teo.rned ©over'nmentAdvocate fisr' the State supported the judgment of the tria! court, I have heard 'earned counse! for th record as a!so the impugned judgment. 's parties and perused the •l), who is fa+her of the prosecutrix and complainant, has stcrted in his deposition that on th.e date of incident he had lone on his work and his iffife Rukhmoni wo.s in 'the home. His wife told hin"' about the incident. Rukhniani wos told about the incident by the prosecu+rix. As told by Rukhmani, she hnd shouted and abussd +he cccused upon u'hich he rcn away toivnrds forest, Prosecutrix returned from the house of accused shouting after the incident and nnrra+ed the incident to Rukhmani whereupon Rukhmani ca!!ed Kushal Singh S. Amru and informed them about the incident. He returned at 12 noon, Just 10 +o 15 minutes aft'er the incident. He went +o Poiice Ou+post Vishr-ampuri to !od9e the report. On examina+ion of the prosecutrix they noticed that blood was oozing from her urethra and other sides wer-e swolien. Accused wns brought from the for-est. Page 4 of 6 The prosecutrix (PW-2) was not about to depose due to her tender age which hqs been assessed by the trial court betweer, 21 to 3 years. 9. Rukhmani Boi (PW-3), mother of prosecutrix, has s+ated that on the date of incident at about 11.00 a.m. she hod gone +o take bath neor the tap, whereas, her daughter had gone to Aangcnbadi. When her dauqhter did not return and she was gosng to search her, on ~J ' ----••• "-- ---- '- -—.3----.3 • - ---.-.- .— , 'f.i, the way, she hearQ the sound of her cries, which was emanatinc from the house of Bhola, fother of accused. On which, she u'ent to the house of accused, at thcrt- time her daughter told that accused had taken her inside his room o" his lap, mode her lie, took out her underwear and sat mer her after taking out his own underwear. She had seen her urethra, the same wns swollen and blood was oozing, She called other villagers and on their arriva! she had also show.n her daughter to them and narroted them cbout the incident. At that time her husbond came bnck and she also narrated the incident to him. who in turn ivent to the poiice statiori cnd lodged the report. In the cross-examination this wi+ness has denied the suggestion tho+ on being asked her daughter, in fact, told thcf- she had sustained injury while playing as a result of which blood was oozing. She has further stated that the fnct that accused taken out the underwear of prosecutrix ns olso his under'weor WQS told by her to the police while giving her statement, however", if this fact is not mentioned in her diary statement of Ex.D-2, then she is not able to tell the reason for the above omission. She has further denied the suggestion that she is folsely implicating the accused in the above offence due to some o!d quarrel. 10. Statement of Rukhmani (PW-3) finds corroboration from the statement of Kushal Singh (PW-4) in material porticulars, as he has also stcted that on hearing obout the incident they had gone to the house of Romesh and had seen the priverte part of the prosecutrix, Page 5 of 6 which was swo'len and blood was oozing. Rukhmani had to thort- the accu^ed had taken ths prosecutrix to his honie where she hos returned weeping. Idth, Dr. (Mrs.) AA. Tiwari (PW-8) has stnted that on 3.5,2003 at about 11.30 a.m. she" had examined the prosecutrix and found one abrasion on her right hip. She did not notice a"y injury on her private part, however, on internal examination she had seen signs <t of clotted blood beneath labio majora and prosecutrix 'QS complaining pain on pressing. Her hymen wos intact. She did not notice any sign of rape, however, it Qppenrs +ho+ rape was at+empted. In the cross-examinotion she has s+ated that the above described injuries could be caused by hard & blunt object and the same could be caused by fal! on blunt object a!so. From the above evidence availabte on record, it is evident that the appellant hod taken the girl with an intention to satisf^,' his passion and the version of Rukhmani Bai (PW-3), which is based on the information received from the prosecutrix immediately after the incident, goes to show that the appellant o+tempted to rape the prosecutrix, however, because of cries cnd arrival of this witness he cou!d not succeed in his at+empt. Frotr the medics! evidence also it is c'ear +hQ+ though the hymen of prosecutrix was intact sut blood was noticed beneath labia mqjor'a and on the basis of above evidence Dr. (AArs.) AA. Tiwari (PW-8) has opined that possibility of attemp.t to commit rcp was there. However, the tria! court on the basis of sto+emen+ of lady doctor (PW-8) and iukhmoni Bai (PW-3) has orrived at the coriclusion that presence of blood beneath labia majora and complain of pain on pressing the above drgan establishes the comrnission of rape beyond all reasonable doubts. However, taking into consideration the positive ond categoric opinion ofthe lady doctor (PW-8), who had examined the prosecutrix and opined that no sign of rape wo.s found though Page 6 of 6 possibility of attempt to commit rape was there, the conviction of the appelfcnt under Section 376 of the IPC for commi+ting rape cannot be sustained. 13. In the result, the appeal of the oppellant is parth/ aliowed. Conviction and sentence of the appellant under -Section 376 of the IPC are hereby set aside cnd instead thereof, reiying on t.he judgment of Hon'ble Apex Court in the matter- of 6uddu @ Santosh «' (Supra), the appellaA is convicted under Section 376 (2) (f) read with Section 511 of the IPC and sentenced +o undergo R.I. for year's and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for 6 months. Sd/- Dhirendra Mishra Judge Roahan/' w