^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) CriminalADpeal No. /;S~ /2003 APPELLANT ACCUSED (IN JAIL) Suresh alias Musuwa, aged about 30 years, S/o. Sumeri, R/o. Mohara, P. S. Basantpur, Distt. Rajnandgaon. VERSUS 'w* ^ii3 State ofChhattisgarh RESPONDENT CRIMINAL APPEAL UNDER SECTION 374T2^ OF THE CRIMI NAL PROC^DURE CODE 1973 CONVICTION U/s.378".5lCofI.P.C. •^s- Advocat6 SENTENCE.^- R.I. for fv'/fyea.TS with fine of Rs. lOOOflT'hidefaultof payment offine, farther R.I. year ^ ^ ABB^& OUT OF JUDGEMENT. CONVICTION AND SENTENCE DATED 24.12.2ff8?PASSED BY SMT. MAITRAYEE MATHUR, ADDITIONAL SESSIONS JUDGE. RAJNANDGAON IN S.T. N0. ^"•'•'1'' 66/2002ETSTATEVS. SURESHALIAS MUSUWA. ^^ffSS ^l HIGHCOURT OFCHHATTISGARH. KLASPUR Sinate Bench:- Hon'ble ShriJustice DNrendra MishFa Criminal Apneal hto.116 of 2003 Appellant :• Suresh alras Musuwa Respondent Vs State of Ctihattisgartr Appellant byShri G.S. Ahluwalia, Advocate. State by Shri Vinod Shrivastava, GA. JUDGEMENT (Passedon 13 7/2005) ;^'s;g;:^ The appeltant has preferred this crimirKdappeal against the judgment dated 24*' December 2CX)2 passed by Uie tearned AddBionalSsssions Judge, Rajnandgaon in S.T.No. 66/02 convicUng the appeltant under Section 376 and 511 of the Indian Penal Code and sentencmg him to undergo Rl for five yeare with fine of Rs. 10,000/-, in defautt of payment of fine to further undergo Rl for oneyear. 2. The prosecution case inbriefisthatwi 18.02.2002 theappellantlookthe prosecutrcc aged about five years and committed rap®wNh her In his house. At the time of incldent the father and mother of Uie prosecutrix had gone out in connection with Uieir work. When they rstumed back, the prosecutrix narrated the incident to her parents and report <rf the same was lodged with the police slaUon B^antpur, Rajnandgaon, on 18.02.2002 at about 23.00 hours vkle Ex. P/6 by the father of the prosecutrw namely Teelamlal Nlrmalloar whereupon offence under SecUon 376 of the IPC was registered against the appellant. The prosecutnx was examined by the doctor and report of Uie doctor is Ex.P/4. During investigation vaginalswabof the prosecutrix prepared by the doctor and underwear of the prosecutrix were seized vide seizure memo of Ex.P/3 and the same were medically examined, report of wMch is Ex.P/2. Thereafter, statements of the witnesses were recorded and chargesheet under SecUon 376 of the IPC was flled and the case was 3 'ESSsSS^ E& committed to the Sesstons Court. The leamed Acktitional Sessions Judga, framed charges under SecUon 376 & 511 of the IPC and the appettant pleaded not gulUy. During trial prosecuBon examined wttnesses namety Gopiram P.W. 1, Dr. Lohiya P.W. 2, Yashwant Rao Deshmukh P.W. 3, lady doctor K. Gangajali Wale P.W. 4, ^holc Kumar P.W. 5, (yosecutrix Sushila Bai P.W. 6, mother of the proseeutrbc Mukhi Bai P.W. 7, feither of the prosecutrix Teekamlal Nirmalkar P.W. 8 and grand-mother <rf the prosecutrbc Dulari P;W. 9 and after recording statement of the accused, the Court betowfound tReappetlant guilty and convicted him as above. \. The alteg^ons against the appeltent is that when the parenls of Ihe prosecutrix had.gone out for their work, he took the prosecutruc to Ns house and commttted rape upon her by penetrafing his penis h the vagina of the prosecutrix. The incident swas narrated by the prosecutrix to her parents on their return. Thetrial Court has convicted the aweUant tsy relying upon the statements of P.W. SSushila Bal, P.W. 9 Dulari, P.W.8 Teekamlaland P.W. 7 Mukhi Bai. Leamedcounsetfortheappellantsutsnltsthatthe convtetton is based on ttie statements of P.W. 6 as there is no eyewitness to the inci<tent except tfte prosecutrix who is aged about five yeare. He further submits that looking to theage of the prosecutrix, her statemwit ^iould be minutely examined with caution, as possibilHy of tutoring cannot be ruled out. It is furttier argued that even though the prosecutrixwas aged five years; oath wasadministered to her by the trial Court without ascertaining whether she understands the meaning of oath or not. Leamed counsel submUs that Uie Court below has convicted the appellant ignoring the matsrial discrepancy and omisston present in the statements of the witnesses on the basis of partisan appreciation of the evidence. It isalso contendedthat as the appelteuit was arrested after about two months aS the said incident and no wplanation has been given by tiie prosecution and furdier that the investigating officer has not been examined, adverse inference ought to have been drawn again^ prosecution and the appellant ought to have been given the benefit of doubfc On the othet hand, teamed counsel for the State has supported the impugned judgement of convictton under Section 376 & 511 of the IPC. 'i'v^fSKWsv 6. Havjng heard teamed counsel for the parties and after perusing the sntire record as welt as the impugned {udgment, 1 am of the view that ^here is substance in the argument advanced by learned counsel for the apperflant After examining the statement ofthe prosecutrix P.W. 6,1 flnd that she has been administered oatti by the Court below wtthout ascertalning the fiact whether she understands the m^ining of oath or not and the Court bdow has heavily relied upon para 2 of her ^atement wherein she hasstated that the appeltant after taking out her underwear did "chodf ke choda'wWn her and she narrated this tc»her mother, father and grand-mother that the appellant left her only when she pried due to pain. The above statement ofthe prosecutrcc cannot be acted upon for the r^sons giwn below; 1) that Uie prosecutrix used the word "chocff te choda" for the first time in her statement befbre ttie Court as ttiis is an improvement over her diary statement of ExD/1 and even otherwise it is highly improbable that she understands the meaning of the word used by her. 2) ttiat her above statement is not corroborated by the version of lady doctor P.W. 4 who has examined her after the Incklent and found no injury overthe person ofthe prosecutrbe. 3) that the police registered offence under SecUon 376 <rf the IPC on the basis of complaint lodged by the complainant wherein the act of rape has been described in detail. 4} ttiat in the cross examination of the prosecutrix she has stated in para 3 that she got her undeiwear removed by ttie appellant for passing urine and thereafter she ran to her home after picking her underwear. 5) that she answered in the afRrmative to the suggestion that the appellant did nothing except taking out her underwear. However, in reply to the questions from the Court she again repeated the word "chocff ke choda" 6) that in para 4 of her cross examination she has cteariy stated that she had deposed as per tutoring gwen by her parentsin her home and, T- J -^:&p^-^w^^- 7) that she furUisr stated m her cross examination that she had told the parents that the appellant had taken out her underwear at her instance. 7. Therefore, at thia juncture it vwutd be pertinent to mention here that grarri- mother Dulari P.W. 9 has also made exactly the same improvement over her diary statement of Ex. D/3 because she says that the prosscutrix had told her that the appellant did "chocS ke chocta"though this word is absent in her diary statement and'even in the statements of P.W. 7 and P.W. 8 similar improvement has been made with respect to the art committed by the appellant. 8. Thus, on the basis of the above analysis and i^rticulariy consklering the fact that no exptanation has been advanced by the prosecution for delay oftwo months in the arrest ofthe appellant and also for not examining the investigattng ofRcer, 1 am of the opinion that the prosecuUon has failed to prove the aforesaid offences beyond reasonable doubt and the case of the prosecution hinges solely on the statement of the prosecutrix who is aged five years and as such the Court below ought to hava given benefit of doubt to the appellant after appreciating e evidence and material available on record. 9. As a result, the appeal is altowed and conviction of the appellant under Sections 376 & 511 of the tPC is hereby set aside and the appellant is acquttted of all the charges and it is directed that he shall be released forthwith if hs is not otherwise required in connection wtth some ottier offence and if he has deposited the fine amount in compliance of the order of conviction, the same shall be refunded to the appellant. 10. Parties are entitled for certified copy of the otder^ Sd/- Dhirendra Mishra Judge