^ lon Benca: ll.tisgitSijlds® Raiiiadhui State ofM.P. (now C.G.) Sd/- ,, ' T. P. Sharma Judge ^ <^^ , Sd/- Dhirendra Mishra Judge ^ ; Post for pronouiicem.ent ofjudgiuent [% . 1-. Sd/- <r | |.|- r0 u ^SSW-isSS',^^ :/'s~'°"'% i> ,.'Bi6. & \ 1^ ^^^ r^« Rataadhui. aged about 22 vears. son of Bharosa Gond, Resideiit of Chhuitohani, P.S. Arjuni, Distiict- Reuour. Versns The State of M.P. ttu-ough P.S. Arjuni, Distdct-Raipur Shri M.D. Dhote, counsel for fhe appeUarit. Shri Raviadra AgTawal, Panel Lawyer for the State/ respondent. sencjii: €^ (DeHvered oa fc? Jaa.uarv. 2010) JL££.EA^6SJLfs. 1. This criiiiiE.al appeal is dirccted agaiu.st the judgiiient of conviction and order of sentence dated 29th April, 1991 passed in S.T. No.238/1988, whereby the leanied 5th Additional Sessions Judge, Raipur, has convicted Uie appellaiit under Section 376 of the IPC aad senteuced TinT! to undergo tife im.prisoninent. 2. Case oftlie prosecution, ia brief, is fhat on 15.7.1988, fh.e prosecutrix had gone to field outside fhe viUage to attend fhe cail of nature along witli her friends Malti. Kewat aiid Jauld Bai and while rctuniiug was intercepted by fhe sppeQaiit and his associate Seuk Kewat. It is the case of th.e prosecution that Gie appeUant caught hold of the hands of the prosecutrix, dragged her, reiaoved her clofhes and conunitted sexual uitercourse irifh. her. After soine time Risau, brofher of Malti, Shotoha, Dbaaraj aad DhansTagh arrived at tae spot, iipou which, the appeUaat raa awa}-. Thereafter, fhe prosecutrix came back to vfflage aloiig with Malti, Risau aiid narrated fhe iacident to T,-UIage residents naiaelv SivaE-am. and Budliram and vfflage Pauchayat was convened, whercui eiders advised to lodge report te fhe potice station. Tliereafter tae prosecuti-ix, Malti aiid her brotiier went to pouce station and lodged the reportoffhe iricident. 3. First iofomiation report of Ex. P-1 was lodged in fhe PoUce Station- Aijuni on 17.7.1988 at 14:05 lirs. by the prosecutrfx reporfeig aUeged comniissioE of offence. Thereafter on that veiy day, petticoat aad saree of the prosecutrix aUeRed to contain staius were seized bv fhe poUce fiom fhe possessioa of Gie prosecutnx vide Ex.P-2. Police furfher seized uiiderwear froia the appeUaiit oa 18.7.1988 vide Ex.P-3 which alleged to coataiti sem'iTia.l staias, Vide Ex.P-4A, police seized a sealed slide contaiaiag vagiaal secretioa of the orosecutrix on 17.7.1988. Meinoraiidum of Ex.P-5 dated 17.7.1988 was sent to fhe S.D.0., Dhaiutai-i for grant of permissioa for examiiiation of private parts of fh.e prosecutnx and fhe permission was obtamed. After obtaiaiag fhe consent of BIiagivan, father of tlie prosecutrix vide Ex. P-5, fhe prosecutrix was sent for inedical examiaation to Dr. S. Suighal fP.W.2) uxider inemo of Ex.P-7 along wifh Police Constable- Ramdulal of Ponce Station -Arjuni, After exaiiuiiatioa, doctor gave aer report vide Ex.P-3. In her report, doctor stated her age appearing to be above 17 years; secondary sex character were found well developed; hairwere also present. Doctor further stated no m.ai'ics ofextemal injus her che.st or back. The report furfher stated fhat vagiaa adiaitted one liager wifa resistaiice aad hviaea was found to be intact: no raarks of exteraal iajuri- over private parts were found aor stams of blood or seininal were seen. It was also stated that fhere was no niattiag of hair. In ttie opm.icn, regardiag age, doctor stated prosecutrix to be 17 or 18 years ofage aad for defiaite opiaion. advised fhat it be refen'ed to Radiologist. Regardiag sexzial ,^t^ 3. iatercourse, it was stated ftiat she was aot useci to sexual iatercourse. Vagizial slide.s were prepared, packed and sealed. Undei^arments vrere also exaxaiaed, packed S» sealed aiid were haiided over for cheinicai exaEninauon. 4. The appellaat was also sent for inedical examiiiation oa 18.7.1988 vide Ex.P-8 to Dr. O.S. Bajpai (P.W.3), who exaiuuied fhe appeUant aad prepared his report vide Ex. P-4. Doctor ia his report stated amongst otuer tliiags that no marks ofstruggle e.g. bi-uise, sciatches and teeth bits were fouiid on his body, cliest, thigh or over geaital parts and no clottiiig of pubic hair due to elimuianon of senien was found; ao presence of haii' 011 Gie tiody of appeUa.at was found, no presence of aTjrasion, laceratioa on ^enital orgaa were found, Further, fh.e report stated that no evidence of izs.fection was found. It was opined that the accused is capable cf performiiig sexual iatercourse. It was also stated that no 'blood or seniinal staias were seen on flie unden'year broiight for its examination. The same was again sealed and handed over to fhe consteble for oiiwam cneinical exansir.a^oii- 5, For ascertaiiirug tae age of tlie prosecutrix, fhe prosecutrix was sent for radiologicai exaiidiiation under m.ei&o ofEx.P-9. Report ofttie Radiologist, Ex, P-12 stated fhe age ofthe orosecutrix about 16 to 17 years. 6. After coaipletiag iiivestigation, PoUce of PoHce Starion -Arjuni filed charge saeet hi the Court of Judicial Magistoite Pirst Class, Dhamtari aBeguig coaunissioa of offence under Section 376 of fhe IPC, who ia turu cominitted fhe case to fhe Court of Sessions Judge, Raipur whicli was registered as S.T. No.238/1988 ar>.d the same was received on traiisfer by the 5th Additioaal Sessioiis Judge Raipur for trial. 7. The leamed trial Court fraxued cliarge agaiast the appeUaut for jiaitriug coiuniitted offence of rape oa the proseczitrix fhereby coiuiEitting offence zuider Section 376 ofthe IPC. Appellaiit abjui'ed his guilt. i^»sm g .?-\ ^-'l,.1 8. Iii oider to briag aoine fhe guilt offhe appefl.aat, the prosecution exainiaed in ail 12 witnesses. AppeUantwas examiaed ay the learaed trial Court as.id iri his exsaxmatioii under Section 313 of fhe Cr.P.C., he denied havic.e conirGitted aiiy offeiice and pieaded mnocence. T'lie defence offtie appeUaiit has been fb.at because of the group rivalry amongst Dhiinar aitd G-ond comaiunit)7 ia fhe viUage, he has been falsely implicated u.i fhe crim.e in questioil. 9. The learaed trial Court relyiag upon ffae ossification test oftfie prosecuti'Lx as also iiiedical report ofDr. S Sitighal (P.W.2) held th.e prosecutrix to be a inajor being age of 18 to 19 years. The leamed trial Court vide impugned judgiaent of coiinctioa aiid sentence held. that the prosecutioii has proved that the appeUaat has coiniaitted sexual uitercourse with tlie prosecuti-ix agamst her wishes cUid therebv comBiitted offence uiider Sectiou 376 of tiie iPC. Such findiag of guilt has beea recorded by the trial Court reb-iiig laainly on tlie testnaony of the proseczitrix, Malti (P.W.-4), Risau (P.W.6), Chaim-u {P.W.7), Dhaasitig (P.W.8) aad Shobharam (P.W.9). The leamed trial Court obseiviag tliat fbere is uo discrepaacy ia the testimonv of fhe prosecutrix aiid ui fhe first information report lodged by her, Iias recorded a finduig "that inerely because no iatemal or exteraaJ iajiiry was found on tbe body of Uie prosecutrix aiid even though hynien was not fouad toni, it could not be said taat no oSence was coiniuitted, It was also recorded fhat eveii though presence of spennatozoa was not fouiid ia fhe cheiaical examination ofarticles i.e. saree aiid petticoat, ao inference caa be drawn tliat sexusl iatercourse was not couiinitted. The defence version of fhe appellaat as stated by soUtan' defence wituess of Vishveshwar (D.W.l), has also been disbelieved. .C'. Leamed counsel for the appeUant veheiaently argued fhat the leaiTied trial Court has coiniaitted gross iIlegaUty ia holdiag the appeUaat guilty by relying upon fhe testunony of prosecutrix. Evidence of fhe prosecuti-ix :' l/'?c; L2>- (P.W. 1} does aot at all iuspire confidence and is not trustavorthy, He fcrfher submits that fhe siaa.-a.er ui which th.e oiFence is said to havc been coiaiaitted aad prosecu'fcrix was dragged, resistaace offerc'd by her, forcefully sexual iatercourse coiaraitted, oozuig of blood, secretioii of seinen and fall on clothes are not at all supported by inedical evidence brougbt on record bv 'the •orosecution. He furfher subiaits that tbe eiitire ston" naiTated by fhe prosecutrix ia her tes-timony is false, because if fhe same is to t>e accepted, it niust have resulted not oiily ia die iujuries on. exteraal pai'ts of tlie body of fhe prosecutrix but also on her private parts m.cluduig conteiiung blood staias 65 iateraal aiid exteraal vagm.al iajuiies, existence of seiuiaal staias on clothes. He argues that froin fhe testiinoay of Dr. S. Siiighal (P.W.2) aad the defence of fhe appeUaiit, it is clear tliat fhe appellartt has been falsely iiaplicated in ttie offence. The prosecutioii has failed to prove its case beyoad reasonable doubt iaasiuuch as in addition to above inaterial discrepancy whereby inedical evidence does not. at aU support fhe case of the prosecution, FIR itself has been lodgecl after delay sn.d her bym.cn was not found tom, versioa of ofher witnesses beius contradictory. In totalitt', th.e prosecution Iias failed to prove its case and th.e conviction on fhe basis of such shalsy versioa is illegal and could not be sustaiiied io. the eye oflaw aad fhe accused is entitled to be acquitted. 11. On fhe ofher haud, leamed counsel for fh.e State has supported fhe impugned judgiaent. 12. We have carefiitly perused fhe iinpugued judginent passed by the leamed trial Court aiid entire records offhe case. 13. Prosecuta'be (P.W. 1) ui her deposition before fb.e Coiut stated fhat when she had gone to field outside the village along with Malti and Jauki to attead the call of nature aiid while retuniiag after ease, was caught hold by fhe appeUaiit. In spite of resistance offered, fhe appeUaat did not release her, on which, the prosecutrix asked Janki to go to village aad infonn tlie 1 °%!Sa'' ':siTf;h'^ viUagers. She also deTiOsed ttiat the aDpeIlaat draeged lier to Baiiara, wmch was about 200 yards away. Bayara belonged to Rajau Kisaa. She fdi"ther deposed fhat iii the Bayara, she was thrown and sexual iritercoui'se wa.s coiniaitted. Though slie resisted, her hands and legs were pushed beliiiid and her laoutli was also gagged. After iiitercourse, seaiinal discretion feU on her clothes aiid on fhe floor. She lurther deposed that when she laised hue and ciy, Risau, Sobharam, Dhausing and Dhaaraj cam.e ia ar<d the appeUaat was caught ia the Bayara aud was taken to viUage. She states fhat wtien the appeUaut was caught, he was coirunittmg sexual iatercoui'se wifh her. She further deposes that after being brought to village, the incident was told to village Sarpan.ch- Siyaram and vffiage Patel - B-adhram. and OE tbat veiy day, a vfllage Panchayat was convened and on fhe next date also such sittiag was conveaed. It has been deposed that ia fhe said raeeting, fh.e prosecutrix aud fhe appellant were present, whereia she had aarrated ttie act of the appellaat, at which Sarpaiich -Siyaram and Patel- Bhudram. stated that fhey are helpless and advised thein to lodge tlie report iti the police station. Prosecutrix also states that she did not know tlie accused but came to know about his name ui fbe sitting of vfllage Paiichayat that his name is Ramadhm and is resident of Chhin.bham. In tlie cross-examuiation, the prosecutrix has stated tliat she was tliroivrt (qesp fen). She further deposed that when she feB, she received iajuries on her hands, elbow and also on her head. She also slated tb.at fae sexual iiitcrcourse was painful at the time ofiasertion ofinale orgaa, which led to oozing ofblood froia her private parts aiid it also wetted ber clofhes. She has also stated fhat iiitercourse contiaued for 15-20 nunutes. The prosecutrix deposes fhat on fhe date of iacident itself she had gone to fhe poUce station along wiih her fafher and brother of her fnend and her fhuiab impression was obtained, whereas fhe incident was nan-ated by Uie .-?-•? '/ <•--- ':%, ;/ 1 ""^'^ brother ofher fi-iend. Later oa. she states that she is una-ble to sav that fhe report v. as lodged ta'co days thereafter. A. Dr. S. Siaghal (P.W.2) wbo examined fhe prosecutnx wben she was brought to her after 'the aUeeed incident. has stated fhat tlie vagiaa adinitted oiie fiiiger witii diBicult;-. Testiiving her report of Ex. P-3, shc has stated that aeithei' aay tilood staia was fouad nor aay kind of iDJuri' was found on tue private parts of the urosecutrix. While depositmg that the urosecutrix was not habitual of sexual intercourse, it has been stated fhat ao definite opiaion regarding sexual m.tercourse caa be given. In cross-exataio.ation, she has deposed that hyinen was found iatact. She has further deposed that ia case where resistaace is ofFered at the tune offorcible sexual iatercourse aad EUI atteiapt is uiade to save froia ffae rape, a per.son m.ay sustam. uijuries. She has veiy clearly stated fhat she did not find aay injur^- xvhatsoever, on the person ofthe prosecutrix. .5. Dr. O.S. Bajpayi (P.W.3), who has exaTnined fhe appellant, stated that no teeth bite or uijuiy of aay other kmd evidenciiig auy scuffle was found on fee person of ttie appeUaat. It has been deposed th.at no clotting was found on p^Aic hair. Ele has also deposed tbat no abrasion or scratcli or any otlier kiad of injui-,' was found on the gecital parts of the appellan.t, No seiiiiiial staias or blood niarks were fouiid on fb.e ucdenvear seized from. tae accused. la cross-examiaation, he bas stated that if rape is committed and tlie victtm inakes efforts to save herself froin fhe act, it is quite natoral that she m.ay receive uyur)r. .6. Froia fhe testiiaony of Dr. S. Siaghal (P.W.2), it is clearly revealed ihst fhe prosecutrix did not receive aay injun- whatsoever eifher on any part of her - bodv er iii her urivate Tiarts. while fhe urosecutrix deuosed fhat slie was dragged for about 200 yards forcefuUy • by the appeuaat, tlirown in the Baycs.ra aad sexual iatercourse was coiaiuitted on lier agaiast her wishes ./.' /-•'•• ^.^'% \i ^ ts: '^'•' ^. p—- which slie resisted. Thus fhe Medical evidence completely falsifies &e versiou of tlie prosecutrix. Prosecutrix has stated in her cross-examiuation that the penetration was veiy pamful aad blood stai'ted oozing out, towever fhis version of the proseciitt-ix is not at sjl supported from Uie tnedical evideuce inasinuch as even slightest iiijury, abrasion or rashes bave not been found over private pails of the prosecutrix and there is total absence of aiiy iajuty on fhe vagiiial walls. In the Ught of what has been stated by the ladv doctor that the vagina adinits one finger ivifh difficiilty, it is difficult to accept tiie version of prosecutrix that sexual intercourse was coTnmitted on her ia tbe inanner described by her in her testiinony wlule it is not at aU supported by fhe laedical evidence. 17. There is no cogent or reliable evidence on record to prove aud estabUsh fhat eifher blood or seiain.al staias or suennatozoa was found on the weaidng apparels ofthe prosecutrix. Furfher even discharge ofvaguial slides seized during the course of iavestigation aad sent for chemical exanuiiation were also not found to contaui any sperm.atozoa so as to establish the case of sexual iatercourse. There is also no cogent reliable evidence on record to estabUsh presence of blood staais, vaginal discharge or semirsal staio.s oa undergariuents of fhe appeUaut, which was seized by fhe poUce duriag iavestsgatioii. Dr, O.S. Bajpyai (P.W.3) has also deposed fhat ao iajur^- was found on aay part of body of the appeUant nor Qiere were aay bruises, scratelies oa fhe private part aad genital orgaa of fhe appeUaiit. 18. Touchstone for recording fhe fmdiag ofconviction ia a rape case is ttiat- fhe testunoay of fhe prosecutrix niust be reliable suid iaspire confidence; it shoTild be worfhv of crcdit aad it should not suffer froni basic iafirmitv and fhe probabiiity factors should also not reader it untrustworthv of credence. Ttie medical evidence as has conie ia fhe present case coinpletely belies uie testimony of the prosecutrix and renders entire prosecution. case doubtful. --^ ^^ /^) 19. Tlie appeUaat/accused ia his examtaation under Section 313 ofCr.P.C. has stated that he has been falsely implicated m. Uie criiue because of group rivaliy amongst Dhiinar aad Gond 'community. In his defence Iie has examiued Vishweshwar (D.W.l), who has deposed that fhe prosecution witaesses had inimical relations witL. the appeBant, as tb.e appeUaat was workmg m. the departuient of fisheries aad veiy often used to obstruct fishing by prosecution •(ritnesses uaniely Risau, Malti, Godawari, Dhaiisai, Dhaasingh, Chamra and Bhudram. As fhe testimony of prosecutrix is not at all supported by niedical evidence, we are unable to uphold ftie finditig of ^Tiilt recorded by the leam.ed trial Court on the basis of testimony of fh.e prosecutiix (P.W.l), Malti (P.W.4), Risau (P.W.6), Dhansiagh (P.W.8) aiid Shobharaiu (P.W.9). The impugned judginent of conviction and order of sentence recorded by fhe tdal Court caiuiot be sustaiued under the law aad fhe same called for iuterference. 20. In the resiut, the appeal is aUowed. Conviction of the appeUant-Ramadhia under Section 376 of ffae IPC aad sentence imposed under fhat Sectioa is hereby set aside. He is acquitted of the charge of fommissirin of offence liader Section 376 of fhe IPC ftem.ed against him. The appeUaut is on bail, therefore his bail bonds staud discharged foi'ttn'idth. He need aot surrender. Sd/- Dhirendra Mishra Judge ? ^ Sd/- Manindra Mohan Shrivastava Judge