5me 11am? s //V" WL ‘ 1. @{e W“; 8 ~ i / / 1 Berthqlamy s/o GgbFel Tirkey aged 18 years reqlden" cf _ village Kutma, Salhhadana, P f: Bagic ha,"9istr1cf : Raigaié‘dMP)“ Prabodh Kumal/s/o Ilias T‘irkey aged aboat 19 §ear resldeW ‘of Kutrm, $a1k19dand P b Bagmha D13t" : Raigar'h (MP) - Veréusa CF0000058486 ‘7 £[ ’7 m mag Him-i couRT OF MADHYA PRADEgH AT JABAL?U“ Criminal Appeal No.%laa /’l994 H Respondent 0b Extate of r/I.P;xtbrmgh S.H.0. ’ ;P.‘S.-Bagicha_, Digtf: : Raigarh,’ '(MoPn)o " ' APPEAL UNDER 3 mm 374(2) OF CR.P.C. s WE$£§ARH .M' §I§$§§3U . .. VA R Singb Bamh : Hon’bEe @r‘ S'us‘iica ?ri‘§‘§aakar Ewakar Criminal Agaem‘ Na. 1213 of 1§94 APPELLANTI'S Bar?haiamy IE: qmfher, Vus ars RESPONDENT Smfe 0f Mmhyu Pma’esh (now~ Chhaffisgar%} Mr". MD. wade, counge! for ‘rhe appegéam‘ Ne. 2. Mr. Va§bhav Gover‘dhan, P L for ”rha Smfafresgwnézrsf. CRIMINAL APPEAL UNGER $ECTE$N $74 GF THE €QG§ {2F CQEMENAL ?&GCEBU§§ .3 U D 6 A£. E N T {$4.082GW} Vida order dm‘eri 159121996 The appeal in raim‘ian m a‘hg agipellam‘ Nc‘ 1 Bermaéamy was digmissad by fhe Higm Chum? af Mddhya Pradesh and h“ has bee. i.fcrmgd by 3hré Dhm’e Tm? The appeHm? Na; 1' ms draady undgrgme Th5 eniirewsanmme, and, ’rher'efere, The prgsery? agpeai camcines an!y in raspecf of appeliam No. 2 Pmbadh Kumar. 2. This appaai is direcmd ’agaéas? fine: ié‘agug.ad Judgmem‘ re: crder' dm‘ed 13.7.1994 passed by Add£?iana§ Sessions Judge, Jashpur' Nagar in Sessicns Trig! N3 184/1'392 -onvicting ‘z‘he accused persgns norndy Ser-i‘hoicmi é i3mb$c§§a Kumar under Seca‘ion 376 Gf fhe Indian Pena! Coda and sghfancing each sf fhem m underga riger‘ws §mprisanmem far 1f.) years, rind 1‘0 pay fine of Rs.£,OQOX-, in c§efau§f 9f paymant 0f fine m fum‘her undama r!’ amug m‘ nrisanman’r far fhr‘ee mem‘hs. J I \ 3. Brief facts a;s ?he casa aha €ha? (m 22.2.1992 FIR {ExP-l) was iadged by The grosecufrix (PW—i} aged abcu‘r 13 ’ years élleging in it f'ha'? on 192.19% a? abcm‘ 8 am when she a a iA~-.&J ‘ N @ was Taing ba‘rh i Th2 river, accud/app2§§an?s reached fhr'e and affer' inserfing a piece f cio'rh her momh, he wa$ subjecfed To sexuai nfargcurse by accused persans namely Berthaiomy nd Prabodh. She has alsa a§§eggd mm acced persons namgiy Afmma 64 Mangru were als presen'r ’rher‘e and ‘ may were haiding her but may have m? commiHed mpg on her. Afer EnVTigg?icn, chm/m? was fiied against The accused persons naaiy gr’rhaiom! (S: ?rab0$h undgr Sec‘rans 36109 and 376—6 of Thg Endian Penal Cade, In rgspect of ether a‘wo accused persens namely A‘fmme (51:. Mengru, chaiian was fiied befare the Juven‘!e CeurT, Ambigu. Hewev, whéie framing The charge ccurT beiew has framed fhe charge ageins’r the accus persons nameiy Eerfhekmi & 9rebcdh Kumar under Secfion 376 of fhe Indian Pena? Cede en 2,9.‘1992 and accordiny fhey ere prosecufed. 4. So s ‘g‘a hohd the accused persans gu§‘:‘y, prosecufion has examined as many s 1Q witnesses in sappar‘ of i’rs case. Staiements of fhe accused aersans were aisa recarded under Seci‘ian 313 af fhe Code sf Criminai Pracedure in which ihey denied The charge ieveiied against fhem and pleaded Their innocence and false implica‘iian in The case. Agar? from ‘rhis, witnesses namely Victaria Tapas {DW-l) a Dr. DC, Mahadeek (DW-z) have alsa been examined by the defence in support af its case. 4. After hearing the parties the trial caurt has convicted and sentenced the accused persans tcr‘ theQotfence as mentianed abaye. Hence this appeal, 5. Caunsel far the apaeliant Na. Z submits that present appears to be a case of consent where the prasecutrix (PW—1) k n sa e c m s i a u§ o t ss m B i 3/ ‘er er ed 3 gl w a ! a ? @ has permi‘rfed bc’m ‘fhe accused pawans Tc: have, sex with her. He submh‘s Thaf The medicai regorf gf The presecuWix dees no‘l' fuily suppsr‘? The prosecufmn case as 3*?!31’2 was m: inferna§ or exTemal injury on her bady. He further §ubmifs Thai There" is no §egal caggm‘ admissébk evidence in raspaa? af the age ef Th prosecu‘rr'ix and as per The assificm‘ion Test she is aged abou‘r 17—18 yeafe. He further suhmifs The? during pendency 0f The appea! aecused BerThaiamy gQT married wiTh The prosecuTrix' and, Therefare, The presenT apgeMQnT Pmbcdh may nm‘ be convTed under Secign 35:76 of The lndiah Pena? Code. He submiTs The“; incide is said. Tc hcwe Taken pEace on 19.2.1992 whereas EIR. has beeh Iceged afTer‘ a.ouT four days Le. 2.2.1992 and The said deiay has nm‘ been expiained properl y The proeeeian. He furTher submiTs ThaT 'Dr. Vioni Bakhm W—8} in her reporf hes caTegcr§ce§§y sTaTed ThaT ET was noT a case of rape bsT 3T was a case sf aTTeT To cammiT rape. ms Ww I A D $2 6. On The oTher hand, supporTihg The impugned judgment iT has been argued by STsTe ccunsei ThQT ch The daTe sf commissibn of offence The pmsecuTrix was aged abouT 13 years as her daTe of birTh is ié.10.1979 shawing in her Mark SheeT (EXP—8). He furTher submiTs ThaT medEca! reparT of The prosecuTrix is pasiTive ahd Dr. Vinaané Bakhla (PW-8) has caTegor‘ically apihed ThaT hymen cf The prosecuTrix was fauna To be IaceraTed and aecaraing Ta her opinion, she was subjected To rape. 7. I have heard eaansei far The parTies aT TengTh and perused The maTeriai avaiiabie an recard isciuding judgmen’r impuned. $ u| e ic T m 2 y b m nd (P g @D 8. Prosecm‘rk {PW—1), aged about 13 years has s‘m'red Thai' she knows fhe accused. persgns and on The dam of incident m‘ abauf 8 am when she had gane To mkz bcj'h in ‘fha river, accused perscms reached. imam! accused Pmbcdh Kumar and Aframe caught hOEd her hand and *ock her é’o some d§smnce and thereafter, accused Ber‘fhaiami removed her underwear- and her mcm‘h was g gged by we accused/appehm‘r NO 2 Prabodh She hns <To+ed Tha? 1‘1” , an subJecfed +9 rape by accused Berrhoinmi am: Thereaf‘re" ”rhe npnehan‘f NO Z cemmwfed rape en her. She has fur’rher smmd Thaf after Taking excuse of drinking waTer, she semehow escaped from ’rhe place af incident, She hes fem‘her smmd Than” accused V persons namely Aframe a. Mangru were aise presenT There and f’hey were heiding her“ bu‘r irhey have n0? cammi‘rfed rape on ‘her'. Pmsecufr'ix has furé’her si‘ated 3"ha‘r affer‘ refumin§ 1‘0 her house she narrafed The inciden’r f0 her sisfer‘ Sajmif‘a and To Pmbha and Sunim. She has further sfa?e»;i ‘?ha‘r on fhe dene of incidenf her fafher was ne? There and when he reTurned TaTe in The nighT Then The reperT was ledge-(Tr She was medicaiiy examined by iady DoeTar and her X—ray was aisa Taken. She has also sTaTed ThaT her mark-sheeT (EXP—8) was seized vide EXP—2. She has furTher sTeTed TheT before lad9 ing The rePorT, a village meeTing was cenvened which Teak. ebeuT a day and in The said meeTma oll The Villa ers were rresenT She has denied i The suggesTiens as given by The accused persehs To The effecT ThaT There was some dispuTe beTween The fcr‘her o-F The accused BerTnolami and The faTh’r of The prasecuTrix She has furTher denied The suggesnons ThaT she was naT subjecTed To rapeby The appeilahTs buT has ledged The reearT an accounT of enmiTy. 9i Jaisunim (PW-2) — Sisfar' 0f ‘rhg prosecufr‘ix hgs smfed Hm? on fhe Lies*-6 cf incidgnfi presgcufrix had game t0 Th5 river for Taking bufh and af'rer rammmg fram There, she had infcrmedxher’ thaw she was subjecfed “h: mys‘Ecai remian by‘ The accused :ergons Berfhaiomi & Pmbadh. She: has gmwd‘ ‘fhm‘ a? Thu? “mm Tha ccndiTian 0f ‘fhe wasgsuwix was he? propel". ln fhe cross-examinahan, fhi5 wimess $ vary fh‘m and has no? 3fa€red may sgch ihing which mg‘ay halp ?ha accused/appeilanf. Heiar'iyuf (PW—3) is The faiher' of fhe prosecufr‘ix, has sm‘red that on The dm‘e of incident ha was not in fhe viiigge. and whgn hg returngd iqTe in The. night; his wifg had informed abou'r The manner in which The prosecufrix was subjaci'ed ’ro' sexuai iniercourse. Adward (PW-4) has nm‘ supporfed The prosecuiian case and has bggn deciared hosiiie, v Lakhahiai (PW—5) is The ?aTwari and has prepared The SpoT Map (EXP-7). JR Gupfa (i’W-é) is The Head Masi'eh af ihe Schoai and had broughi The admissian regisfer of ‘ihe Schoei showing i‘he dafe of bim‘h of ‘i'he phosew‘ir‘ix is lé.10.19?9 and he had aiso produced ihe mark—sheet (EXP-8) of ‘ihe presecufr'ix saying Thai in ihe mark shee‘r also her daie of birfh is recorded as 16.10.19?9 and fhe same bears his signafur'es. In fhe cross-examination he has categorically denied fhe fact That enTries have been made in The documenTs on The basis of assumpTion. Dre RN. Dubey (FW-Y} is The wiTness'iwha had rmedicaiiy examined The accused persons nameiy BerThoiomi d Pmbodh and according To him They were capabie of performing sexuai inTercourse. Dr. (SmT.) Vinodini Bakhia (PW—8), who had medicaiiy examined The proseeLiTrix and had gives her reporT Ex; P—li, has caTegoricaiiy sTaTed ThaT The prosecuTrix was minor giri, aged abouT 14 years and Than? she foand biaod sTains 4 4E g) an her cio‘rhes. She. ms fur‘i'hgr' smfad firm? hymen of fine prosecm‘r‘ix was iacerm’ed and if was difficu¥7§ ire in5er‘r one fingers in her privafre pari'. in paragraph 2 of hzr sfm‘emen? she has sfm‘ed fhaf according fo %1.er‘ eainien ?%‘;z prosecufrix was subjec’red +0 rape. In paragraph 4 0f har- cmss-examinmion, This wifness has cafegaricaéiy sm‘red that? m har repar’r sha had wrong!y menfianed Thaf ah cwtgmpf was made to ccmmh‘ rape with The pmsgcmrix but in fam‘ she was subjec’red m mpg: She has danigd various sagggstigns as given hy‘The‘ defence. Diieep Pandey (PW—10) —Inves?igciing Officer has supported The prosecu‘rion case. VicTaria Toppo (DW-l) has sm‘red That on The dm‘e of ’ inc§denT she had gene along wh‘h The pr‘csecufr'ix ”to fake bafh and no such incidenf had Taken place. Dr‘. DC. Mahadeek (DW— ‘2) has sTaTed ThaT in The medical reporT iT has been menTisned ThaT an aTTempT has been made To cammiT rape on phasecuTr‘ix and he agrees wiTh The said reparT. . 10.’ As per lady Dr'. (SmT.) Vinadini Bakhia (PW-8), The prosecuTr‘ix was referred for her Ossh‘icaTian TesT and Though The said reporT is an recard showing The age of The prosecuTrix in beTween 17 To 18 years buT RadioiogisT has naT been examined and even The said reporT hasVnaT been exhibiTed by \ \ The prosecuTion. Be ThaT as iT may, minuTe examina‘iian of The sTaTemenTv of The prasecuTrix makes iT ciear Tha‘i she was forcefuiiy subjecTed To sexuai inTercaurse and even assuming ThaT‘ she was a major girl, The accused/‘appelranT Prabodh i Kumar' cannoT derive any benefiT from The same. STaTemenTs of The prosecuTrix and The oTher' wiTnesses make iT clear ThaT she / . was subjecfed fa mpe by accused persons nameiy Berthobmy & Pmbodh Kumar. 12. I find no force in Hue argumen‘r of Shri Dhm‘e, cougsei for ‘rhe appellan’r No. 2 Thaf during fhe pendency of fhe fria! as _ The marriage af fhe presecu‘rrix had been so!emnized wh‘h the accused Bartholomy, The accused/appamnf N9. 2 Pmbodh‘ Kumar- is en’rh‘ied fer acquittal. 13. ACCor-ding fo fhe cansider‘ed opinion of fhis Cour? The evidence of The 'prosecufrix, being comp!efely frusfwcr'fhy inspires fuli confidence and nothing has been broughf 0n record by The defence To discredif or discard The same. / 14. The appeal Thus has no subsTance aT all and accardingiy if meeTs The faTe cf dismissai. Appeiiam‘ Na. 2 Prabadh Kumar' is r‘enar‘fed To be on bail, his bail bonds sTand caneeiied. He be dispaTched To jaii To serve ouT The remaining parT of The i gen. senTence imposed upon him. T Pritinker Diwaker ‘ Judge \""\i