HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No.456 of 2006 Pawan Kumar Patel, son of Lekhram Patel, aged bout 5O years, resident of behind Bombay Rice Mill, Millpara, and Districy Durg(CG). Appeilant (in jail) Vs. State of Chhattisgarh through Police Station — Durg, District Durg(CG). Respondent. (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. D.C. Verma, counsel for the appellant.- Mr. Neeraj Mehta, Panel Lawyer for the State. JUDGMENT (Delivered on 2-1 1—201 1) Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-2-2006 passed by 2nd Additional Sessions Judge, Durg, in Sessions Trial No.10I2005, whereby‘and whereunder learned 2nd Additional Sessions Judge after holding the appellant guilty for commission of rape with his own daughter Menaka Patel, convicted the appellant under Sections 376 of the IPC and sentenced him to undergo imprisonment for life and to pay tine of Rs.10,000/—, in default of payment of fine to further undergo further RI for one year. 2. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court beiow has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, appellant Pawan Kumar Patel and PW/5 - prosecutrix (name not mentioned) are father and daughter and they were residing in the same house. The appellant used to k“, commit rape with his own daughter — prosecutrix for the last seven years prior to the date of incident i.e. 24-1 1-2004. On the first day, appellant committed forcible intercourse with her after intimidating her, thereafter appellant was committing forcible rape with her. On account of fear, she has not told the incident to other persons including her mother. Finally when the appellant committed rape with her last time on 12-11-2004, she informed her Bua i.e. sister of the appellant and aunt of the prosecutrix on 24—1 1-2004 and lodged first information report vide Ex.P/4. She was sent for medical examination vide Ex,P/5. Her mother PW/6 Laxmi Patel gave consent for medical examination of prosecutrix vide Ex.P/6. She was examined by Dr. Shyamali Roy (PW/10) vide Ex.P/11, who found the following symptoms ; i) secondary sexual characters well developed; ii) vagina easily admits 2 fingers, iii) there was no discharge of whitish. fluid; iv) uterus was normal; v) two slides of (vaginal smears' were taken and pubic hair cut for sample. The samples were sealed and handed over to the constable for further examination. For determination of age of the prosecutrix, x—ray was taken. As per repon (EXP/9), her age was about 18 years. Her under-garments were seized vide Ex.P/1. Under-garments of appellant were seized vide Ex.P/2. Appellant was arrested on 3- 12—2004 vide Ex.P/3. Two siides of vaginai smear and pubic hair of the prosecutrix in sealed condition were seized vide Ex.P/3. Accused was also sent for examination and he was examined by Dr. Ashok Kumar Soni (PW/7) vide Ex.P/7 who opined that the appellant was capable to perform sexual. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/19 and presence of human sperm on under—garments of appellant and prosecutrix and on two slides of vaginal smears were confirmed vide Ex.P/21. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned Additional Sessions Judge, received the case on transfer for trial. In order to prove the guilt of the appellant, prosecution examined as many as 14 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. After affording opportunity of hearing to the patties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard Iearned counsei for the parties, perused the judgment impugned and record of the trial court. Mr. D.C. Verma, Iearned counsel for the appellant submits that although this is a case of rape committed by father with his own daughter which shows inhuman act of the father but conviction could not be possible on the sentimental ground and still prosecution was under obligation to prove its case beyond shadow of doubt. The evidence adduced on behalf of the prosecution including prosecutrix does not inspire confidence and trustworthy and same is not sufficient for conviction of the appellant under Section 376 of the IPC. Long delay of six years has not been explained by the prosecution. The evidence of prosecutrix is contrary to the chemical examination report vide Ex.P/21. On the other hand, Mr. Neeraj Mehta, Panel Lawyer on behalf of the State opposed the appeal and submitted that the evidence of PW/5 prosecutrix is sufficient to prove the fact that the appellant who is father of the prosecutrix has committed the aforesaid offence and after appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. VJ~1\ 11. As per case of prosecution, this is a shocking case of rape committed by father with his own daughter. Prosecutrix (PW/5) has deposed that since last six years, appellant was committing rape with her regularly and on first day appellant committed rape with her by using force. During course of evidence, as per deposition, she was weeping. As per para 4 of her evidence, appellant committed rape with her last time on 12-11—2004, thereafter she informed about the incident to her Bua i.e., PW/1 'Smt. Meera Chandrakar on 24-11-2004 and lodged first information report on the same day and she was sent for medical examination and was examined by Dr. Shyamali Roy (PW/10). PW/1 Smt. Meera Chandrakar, PW/3 Yuvraj Chandrakar and PW/6 Laxmi Bai Patel, mother of prosecutrix and wife of appellant have deposed that they were informed by prosecutrix that the appellant had committed rape with her and was committing rape with her for the last six years. She was examined by Dr. Shyamili Roy (PW/1 0) Vide EXP/12. The' evidence of PW/10 Dr. Shyamili Roy is sufficient for drawing inference that prosecutrix was unmarried and symptoms found over her private parts show that intercourse has been committed with her. She has taken two slides of vaginal smear and cut the pubic hair of prosecutrix for examination. Under garments of appellant and prosecutrix, slides of vaginal smear were sent for chemical examination to FSL, Raipur vide Ex.P/19 and presence of human sperm was confirmed on under—garments of appellant and on slides of vaginal smear of prosecutrix vide Ex.P/21. \VJ a 13. The evidence of PW/5 prosecutrix reveas that intercourse has l been committed with her. As per her evidence, appellant had committed intercourse with her for the last six years and lastly appellant committed rape with her on 12-11—2004. Her vaginal smear has been taken on 25-11-2004 by Dr. Shyamili Roy vide Ex.P/12 and the same was sent for chemical examination to FSL Raipur vide EXP/19 and report there of was received vide EXP/21 wherein it was stated that human sperm was confirmed on vaginal smear taken from vagina of prosecutrix after 13 days of alleged rape/intercourse. Definitely, as per case of prosecution, this is abnormal case of rape committed by father with his own daughter. Prosecution is required to prove the offence by producing credible, cogent and reliable evidence. The evidence adduced on behalf of the prosecution especially medical evidence, report of FSL and evidence of prosecutrix reveal that after 13 days of alleged rape, sperm was found in the vaginal smear of prosecutrix. As held in the matter of State of Maharashtra vs. Chandraprakash Kewalchand Jain1, spermatozoa/semen may be found in the vaginal smear of vagina within 12 hours of the incident, thereafter, dead spermatozoa may be found between 48 hours to 72 hours of the intercourse. In the present case, vaginal smear was taken after 13 days of the last intercourse but FSL has confirmed presence of spermatozoa after 13 days of such intercourse which was not possible and the same is sufficient for casting doubt upon the evidence of the prosecutrix or upon her character. This scientific evidence alone is sufficient to falsify the x‘ 99o (1) scc 550 \ \ \ \ \ \ evidence of prosecutrix and other witnesses. As per case of prosecution, this was a shocking case of rape committed by a father with his oWn daughter but scientific evidence clearly falsifies the evidence of prosecutrix. Conviction shouid not be based on sentiments but must be on credible and clinching evidence. 15. Considering the chemical report/report of FSL‘ Raipur, we are unable to rely the evidence of prosecutrix and other witnesses. While convicting the appellant court below has not considered the aforesaid report of FSL and medical evidence and thereby committed illegality. 16. For the foregoing reasons, the appeal deserves to be allowed and is hereby allowed. Conviction and sentence of the appellant under Section 376 of the IPC is hereby set aside. The appellant is set at liberty forthwith, if not required in any other case. Sd/_ ll T‘ P- Sharma Sdl- Rang nath Chandrakar i Judge 3