.•*" 1. .^?4 °" w sw' A» !g8d DST THE fflGH COURT OF JUDICATURE AT BILASPURCC.G.) CRIMINAL APPEAL)^^/2006 APPELLANT (INJAIL) RESPONDENT Rajkumar S/Q Harakh Ram . agedabout25 years, - R/oVillage- Marka Tola,Police StationKorer Dist. North Bastar Kanker (C.G.) Versus State of CUhattisgarh ThroughP.S.Korer Dist. North Bastar . Kanker (C.G.) CRBS/mSTAL APPEAL UNDER SECTIQN374'r2')QFTHE CODE CmMIMAL FRO€EE)URE. 1973. K!-^ KK» BBt iK-~[ ^ ;''%«.. .uSi isii'^nr?gi^'!^^^^^sig^^f^Ei^^^; -/..|^:,<.-^>.ai!arl-i^^:s;i l^^?Ni'rr~ IBiW li J il !' IIIIii. HISH COURT <y CHHATTIS6ARH AT BILA5PUR Cr. AoBBalNo.164/2006 Singie Bench; l-fon'bjeShri Dilip'Raosaheb Oeshmukh, J. Rcijkumar' Versus State of ChhatMsgarh) ^- •' . .• • '•'.•• . .. ' ' ' " • . - Shri Aivn Kocher.Counsel for'the cypelfant. Shrt AAish Shukla, fiovemment Achmcate foi- the Stcctert ^GSMEN-F <Oefh^redQnWis?2^i;|yofJune2006)^^^^^^^^^^ Thjsoppeatisdirec;tedagdinS1'"thejuclgmentclated 25.2.2006 delivered by Shri S.K.^ir^, lw A(^itionaf Sessioins Jydge, Kanker in Sessiori*Q^'N£fc|4{%^2005^i^erebytheappellant^i^ lincler Secl-ioffi §7&(t)3E.P.C- °"d sen-tenced to undergo R.I. •for seven yedrs and a fine of Rs.500/- and ?hT defauh' to undergo additional rigorousimprisonment forone moiTrii. 2. Briefly s-tated the pro^cution story is that on 11.8.2005 at about 2.00 at Ma^tola the prosecutrixyi^ed abouf 45 yearS, was alone in the house. Mer husbcnd tieshdwam @ Keshariya PjW.4 hacl gone for beggjng. The appellant cdme to ttie house ot the prosecu|tTix and forcibly icommittec) r^e on her. White the Mppetlah^^^^ committing rcye on the prosecutrix; Ke^avrom RW.4 arrh^. ^er^ wMq^quarre! betv^en Keshavrom, appelfaritcOTd the pposeGutri^^ ^W^cutrix informed aboul" 't+te ocieuri'ence to JaycBitffiBai F^W^|anc|i L^h Bai P.W.2. RI.R, w^ fed^d at 5^@ P^. on >li. Ex.P.4 by the prosecutrix in Police Station Korar, Dist. Kanker. The proseGutrix was sent for medical exafflination. Dr. (Smt.) Hemlata Sahu P.W.6 found no marks of injury on her private parts. She found asmall fresh scratch mark on the backof the prosecutrix. It was opiried 1+lat the prosecutrix was hdbituated of coitus and no definite opinion could be given about fpesh coitus. Vaginal slides were prepared, sealed and handed over to the Constable. One red coloured ^iyaworn bytheprosecutrix.atthe timeof occurrence.havingsefflen like stains at many places wdsseized vide Ex.P.10 on the aime day. Two vaginalslides jn dsealed condjtion prepared by &r.(Smt.) Hemlata Sahu P.W.6 were atso seized on 12.8.2005. The appellant was also sent for medical examination on 12.8.2005 which reveated that he was capable of performing sexual intercourse. After completion of investigation, the appellant was prosecuted under Section 376 (1) P.C. 3. Thedppellwit abjurec! th^'guilt, pleaded innocenceond false imp!icationand!eclevidenceof5ube5in9h D.W.l and Dorulal O.W.2 in defenee. The prOSecl.ition examined as many as 9 witnesses. Relying upon the eyidence lecl by the prosecution, the learned trial Judge convicted and sen'tenced the qipellant as aforesaid in paragraph-1. 4. Shri Arun Kochdr, iearnedcounsel for theappeltcinthasdssailed the conviction of the c^pellant on the ground that-the evidence led by the prosecution does not establish the guilt of the appellaht for the offence under Section 376(1) I.P.C.sincethetestimonyofthe prosecutrix js unreliable and not worthy of credence. It was further argued that theprpsecution has failed to produce the report bf F.S.L to estsbiish the presence df semen and human spermajtozoa on the vaginal stides as also the underwear of the appeltant. It was also .contendec) thdt Jayantri Bai f.W.l and Leela Bai P.W.2|to Whsm ttiei ! : ':K..^w pro%cutrix was dtleged to'bave jmmediatety narroted the inciderit'^ €1^ I. \ not support the prosecution story. Lastly, it was Contended that the medical evidence of Dr.(Smt.) Hemtata Sahu did not corroborate the testimony of the prosecul'rix and jn view of the evidence of Keshavram P.W.4, it could not be ruled out that the fresh scratch mark on the bock of the proseculrix wcis due to the scuffle with the accused. On these grounds it was argued that the conviction and sentence awarded by 1+ie leamed trial Judge is liable to be set aside. 5. Shri Ashish Shukla.learned Sovernment Advocate.on theother hwd, argued in support of the impygned judgmentmd contended that the medicdl evid€nceof &r. (Smt.) Hemlata Sahu P.W.6 corrobprated the testimony of the prbgecutrix since fresh scratch marks were found on her back. It was also contended that the dbsence of interndl injuryon her private parts was insignjfioMit since she was a married woman. It was also sufcimjttecl •thd't' the testimony of the prosecutrix was corroborofted by the ^islence,^|her husband Keshovram P.W.4, as a resutt 1+isreof, conyiction o¥||Hieappellanton the testimohy of the prosecutrjxwas liab|e1w be sustained since the testimony of the prosecutrixwasreliablea'icliwot'thyofcredence. 6. yomng^ hecrd tiie rival^ ~ of Sessions ca»No.4C®/2005. It [s sett\ed law -rtiat in asexual offence, tha testimony of the prosecutrix is not to be treated at par with that ofan accomplice and the appeflant can be convicted on the basis of the sole testimony of the prosecutrix where it appears •riiat ttie testimony of the proseeutrix js nfflural, inspires confidehce and worthy of credence. It is dlso well %ttled now that where the testimbnYofthepresecutrix,an^riedwomcn,isncrhjrol|amdreliofe|&;;j the Court may look for eorroboration from medica! evi4ence only to ||; satisfjf its judicial conscience but nototherwise. j i IS 7. Bedring the above touch-stone in mind/I^ have jscaniiejd ^e^ testiimnY'of:ftie'pro%cutFix,^In^the.^I.fc^Ex.P.4;,fhe^pr®^ •^:'wf>^-w-^'. had stated that the offence was committed in •rtieafternoon at 2.00 P.M. However, in her testimony, she has clearly denied this while Stating that the offence was committed et 11.00 A.M. The prosecutrix P.W.5 stated thdt while her husband had gone for ^ • ': • • . •••;' . -..•'.-'•' • .'.. '••' •) begging, the (^pellantentered 1+ie house and mouritirig on her after rerooving her clothes, commitf'ed rape on her. She further stated ttiat while the appellaht indulged in the sexual act, her husband arrived cuid objected to tbe appeltant. However, this testimony is rendered unworthy of credit by the statement made by the prosecutrix in parograph 3 whereinshe clearly stated that while the appellant wdS near the road, her husband had returned home after begging afms and a quarre! had then ensued between herhusband and the appellant. 5he has reiterated the same statementafter a few lines while stating thdt when her husband retumed, he had met the c^pellant ou+side the house <md after a quarrel ensued between them she had entered the house. This renders the testimony of the prosecutrix doubtfu!. 8. Alttiough theprosecutipn has alleged thdt •the prosecutrix had narrate3 Ihg. inpident immediately to Jayantri Bai P.W.1 and Leela Bai' P.W.Z,but the prosecutrix in pardgraph 4 of her testimony cleaply dehied this and stated Wdt she did not narrote the incident to Jayontri Bai P.W.l and Leela Bai P.W.2. Jayantri Bai P.W.l and Leela Bgi P.W.2 havealso denied that the prosecutrix hdd in'formed them about -the commission of rqse on her by the appelfant. j Both the% witnesses were declared hostilebyt+teprosecufion. ; 9. Dr. (Smt.) Hemhta 5ahu P.W.6 who had examinecl- theiii prosecutrix on tl.8.2005 had clearly sla+ed that <?h int6rridNi[| ooined thatshe wusliabiltiated to sexual'intetSoui'siiSIKI '^/ '.'SB^SIIBIBIB It is .true :that ;Dr.(Smt.):Hemkria: S(!hu''P.W.6.had'&un£tli>miiiSBBNi i..ll8B.: iasi: exam'ination she:did not find any iryury on 1ii& prn/a-te p^rtsi|ois't'|ie|||^| JISt^ i'1'11 : f?. fi. •lll'l'i scratch marks on the back of the prosecytrix but they are well exjilttined by the testimony of KeshayranR P.W.4, hysband pf the prosecutrix who deposed-that wheri he returned after begging altBS to his houa.he fourid -t+iat a quarret had ensuecl between the appellqnt and his Wife in which tfie ciothes of the dppellont u»re 'h'rn Therefore, the possibility that the pi'osecutrix had sustoined these scratch marks m the scuffle with the agpetkint could also not be ruled out.' :. •• - .. ; • 10. K.R.Khandte, S;H.O.Korar PAV.9 has proved that the vaginal slides as also underwear of the appellcOTt wrere seized and wereSent to F.5.L. for chemical duialysis. However, the prosecution dicf npt produce the report of the F.S.L. to establish presence of semen cnd humian spermcrtozoa on the vcgina! slides of tl'ie prosecutrix as also the underwear ofthe i^ipellant; 1L The testimony of Keshdivnim R.W^4 and the prosecutrix P.W.5 dear!yrgwaisthattlTehpuseof-rt'iei,grosecutrixis Situffted ataplace where public l+iopoughfape is going on. ifediavram P.W.4 has also cdmitted that there is^^^^^^ near tiis house. The proSBCutr'ix hds also admitted in poragraph 3 that her house is sityatee! in q verv busy Idcality cnd on the date of oecur-ence there was crowct near her house. In the FJ.R., the prosecutrix had stcrted •that she hdd attemp-ted to raise an alarm at the time of cjccurrence but the appellont had gflgged her mouth. However, in her testjmony dle did not say so but stated •Hiat she had ^iouted, but nq one frpm the nei^ibouring crowd came to her rescue. TTiis testimony does not ihspire confidence. 12. The prosecutrix stdted that her husband arrived oppellant wds committing rape on her. Mowever, ^shavr;ain;,^tei*Est!^ 1^'?'siS!ySltlSS8IK: 4hcrt-:OLt the:time:when'he gFrived'a:'auarre))had ensued^b'i-lwe^ll^ '"'^'.^ ^'':y^ s?:^^:ii^i^s^^^^ dppellant.and •tlielprosecutrix.J :According to. KeshavKMw.;:'fh^JtijJH8Si'SSB|S|Jl 6 41 was 2.00 or 3.00 P.M. whereas, according to the prosecutrix, the incident occurred at 11.00 or12.00 A.M. and not in theaftemoon. t3. Havlng thus considered the evidence ted by the prosecution in its entirety,! am of the considered opinion that thstestimony of the proseajtrix is unworthy of credit and it woufd be highly unsafe to rest the conviction of the appeltdnt on ajch testimony especially when it is neittler corrobordted by medi<al evidence, nor by independent witnesses namely Joyuitri Bai P.W.land Leela Bai P.W.2. In the facts and circumstances mentioned aboye, it would not to be prudent to sustain the cBnvictibn sioce a serious doubt is created in the prosecution story. The cppe!lant is thus entitled to benefit of(loubt. 14. In the result, the appeal isallowed. Cohviction of theappellont under Section 376 (1) I.P.C. and the sentence awarded thereunder are set aside. The appellont is acquitted after giving him the benefit of doubt. The c^pellant shall be set at liberty, if not required in any othercase. Fine, ifpaid.shallbeirefandedtohim. Sd-/' Dilip Raosaheb Deshmukh Judge -f^L-il Oi:ilBi8BSi 'HISBiifiBjRgi 'SSSSSSSi lil!SBiSt Ma