•»>.~>s HI6H COURT OF CHHATTtSSARH AT BILASPUR Sudhari alias Shivdhari Sinqh Vs. The State of Chhattisgarh !'^i^^®:a iS;|!i'£gg^a Post for Ordsrs ; Z'\ .07.2006 Sd/- Dilip Raosaheb Deshm'jkh Judge >. ' £+•iSSy^-St': HI6H C.OURT OF CHHATTIS6ARH AT BILASPUR Cr.Aooeal No.953/2001 Before : Hon'bte Shri b'tlip Raosaheb Geshmukh, J. Sudhari alias Shivadhari Singh Vs. The State of Chhati'isgarh PresenT.- Shri Neeraj Mehta, leamed Counsel for the appellant. Shri M.P.S.Bhatia, Pcuiet Lawyer for the State. JUD6MENT (Oelivered on 31.07.2006) This cppea! is directed against the judgment dated 23.8.2001 deliverec! in Sessions Case No.212/2001 by Shri T.P.Sharma, 1st Additional Sessions Judge, Koriya (Baikunthpur) whereby th? appetlant was convicted under Section 450 and 376 I.P.C. and was sen+enced to rigorous imprisonment for seven years under Section 376 I.P.C. and to rigorous impr-isonment for three years under Section 450I.P.C. 2. Briefly stated the prosecution story is -riiat on 18.3.2001, the prosecutrix aged about 16 years was alone at her rssidence in village Sfliod, Badkcparo, P.5. Patna, District Koriya. Her parents i.e. Ramadhsr P.W.2 ond Moharmunia P.W.6 had gone to another village. It is alleged that at about 8.00 P.M. ti'ie appellant entered the house of 1+ie prosecutrix cnd threatening to kill her, if she shouted, pushed her on a cot and committ'ed rape on her twice. At about 9.00 P.M., •riie parents of the pro%cutrix returned home. Seeing them, the oppeltont rvn awcy. The prosecutrix narrated the incident to her parents. !Sl63S! i^i^e^i?^ '^%^^ F.I.R. was lodged vide Ex.P.1 on 19.3.2001 at 3.45 P.M. by prosecutrix. T1ie school certificate ^iowing the date of birth of the prosecutrix as 8.7.1985 Ex.P.4 was seized from the proacutrix vide Ex.P.3. Dr. Kalawati Patel P.W.8 examined the prosecutrix on 19.3.2001 and found no extemal injur/ cmywhere on her body. Upon intema! examination. she found that the hymen had cn old rupture, vagina easily admitted two fingers cmd the prosecutrix was menstruating. It was opined that the prosecutrix was accustomed to sexual intercourse and there was no evidence of rape having been committed on her. The vagina! stides wers prepared and honded over to •the Constable which was seized vide Ex.P.9. The Chaddi of the prosecutrix was %ized vide Ex.P.2 on 23.3.2001. The underwear worn by the qipetlont was also seized vide Ex.P.14 on 21.3.2001. On being sent for chemica! analysis, the F.5.L vide report Ex.P.17 confirmed that semen or humoai spermatozoa was not present either on the vaginal sfides or on the ffiaddi of the prosecutrix. However, presence of semen ond human spermatozoa was confirraed on •Hie underwe&r of +he appetlant. However, these stains were not sufficient for Serofogical examination. After completion of investigation, the fl^ipeilant was prosecuted under Section 450 & 376 I.P.C. 3. The appellarst abjured the guilt, pteaded innocence and led no evidence in defence. The prosecution examined as mcmy as 8 witnesses. Relying upon the evidence led by the prosecution, the learned triaf Judge convicted cnd sentenced the appellant as mentionsd in paragraph-1. 4. Shri Neeraj Mehta, leamed counsel for the appeltant has assailed the conviction of the appeilant on 1+ie ground thct the evidence ted by the prosecu-1'ion clearty sstablidies that ^he^ •L. ^egs^:^^ prosecutrix was aged roore than 16 years on the date of occurrence and the possibilit/ that the alleged sexual act, if any, committed by the appellant was whotty with the consent of the prosecutrix couid not be ruled out. It was atso contended that •the prosecutrix had lodged a similar report of riys against the oppellant on on earlier occasion in which case also the cppellont had been acquitt'ed. Lastly, it was urged that the (ypeltant had been falsety implicated upon a property dispute. On the othsr hand, Shri M.P.S.Bhatia, leamed Panet Lawyer argusd in support of the impugned judgment. 5. Having considered the rival submissions, I have perused the record. So far as the ag,e of the prosecutrix is concemed, she admitt-ed in para 12 of her testimony -that she was aged about 17 years on the date of her evidence on 25.7.2001. Ramadhar P.W.2, father of the prosecutrix also admitt'ed that he did not r^member the dal®of birth of the prosecutrix. Moharmunia P.W.6 also admitted in cross- examination pnra 4 that the prosecutrix was aged about 17 years. Sie atso admitS'ed that the documentar/ proof relating to the date of birth of the prosecutrix was available at her home but was not given to 1+ie potice. Ramedhar P.W.2 afso admitted tfiot birtti of the prosecutrix had been reported to -Ae Kotwar. The prosecution has not produced the primary evidence i.e. the Kotwari Register to prove dnte of birth of the prosecutrix. Dr. Kalawati Patef. P.W.8 a!so opined •that the prosecutrix was aged about 16 years cmd she had referred her to the C.M.O. fos* confirmntion of age. During investigation, Radiologica! examination of the prosecutrix for confirroation of her age vsas a!so not done. In the above mentioned circumstances, the possibility that the prosecutrix was aged 16 years or more on the date of occurrence coufd not be ruled out. —— ii[:!1 6. TTie prosecutrix P.W.l stated that while she was alone in the house. the appelkmt entered the house and held her hond and threatened to kill her, if she shouted. After this, the appeltant removed her salwar and ffiaddi ond after removing his clothes made her tie on the cot. Thereafter, the nppetkmt committ'ed sexual intercourse twice with the prosecutrix. At this point of time, parents of the prosecutrix arrived whereupon +he oppellant ran away. 7. The prosecutrix admitted that houses of Laxman, Jagdish and Dharma Sai are situated near- her house and her voice could be heard in the rseighbouring houses. She did not testify thct she had shouted or raised any alarm during the occurrence a!though Ae admitt'ed in cross-exnmination that the qppellant had not gagged her mouth oind her hands were also free. Moharmunia P.W.6 also stated in parograph 3 that any alarm raised from her house could be heard in all the three neighbouring houses. Despite her honds being free and her mouth not pgged, the fact that the prosecutrix dsd not shout or rssist. renders her testimony regarding rape unworrtiy of credit. She stated that the oppellant lifted her in his arms ond made her lie on the cot and thereafter removed her clothes. Since nothing has emerged in the testimony of the prosecutrix to show thot she offered ony resistance or raised any alarm during the alleged sexuat act, tiie possibiiity that sexual intercourse, if any, hcd been committ-ed with the consent of the prosecutrix coutd not be ruled out. The contents of F.I.R. Ex.P.1 also lend support to the aforesaid inference since it shows that the nppellant had se>ajal intercourse with the prosecutrix for obout one hour inside her house and ran away on seeing her parents arrive. Ramadhar P.W.2 and the prosecutrix P.W.l havs admitted in their testimony that on an eartier occasion also the prosecutrix had ,fV- -(:=;*^___ lodged the report of rape against the appellant in which case the appeftant was acquitf-ed. The prosecutrix has also admitted in para 5 that parents of the appellant were forcing her to marry the appellant. Ramadhar P.W.2 stated in para 6 thnt had he liked the appellant, he would not have todged a report against him. MEEte ^^E^e^ 9. The testimony of ths prosecutrix that the appellant forcibly raped her twice till arri'/al of her parents is rendered unworthy of credit since medicnl evidence of &r. Kahwati" Patel P.W.8 also does not corroborate the testimony. Dr. Kalawiti P.W.8, upon examination of the prosecutrix on 19.3.2001 did not find any extema! injury on the prosecutrix ond found an old rupture in the hymen. She also found that the prosecutrix was menstruating. This fact also renders the testimony of the prosecu'h'ix unworthy of credence. If despite the fact that the prosecutrix was menstmating, the appellant had committed rope twice on her for one hour, undergarment of the prosecutrix as also of the nppellant would have had btood stains. No such finding was recorded by F.S.L in its report Ex.P. 17 which clearly goes to show that presence of semen or human spermatozoa on the vagina! slides of the prosecutrix wos also not confirmed which also controdicts the testimony of the pr-osecutrix and renders her unworthy of any credit. 10. The prosecutrix in para 4, Ramadhar P.W.2 in para 7 and Moharmunia P.W.6 in para 3 have admitt-ed •that relationship with the appeltant'3 faraily was strained due to an old property di^sute and -riiey were not on visiting terms. If such wus the position and if on an earlier occasion the cppellant had been acquitted in an earlier case of rape, it does not seem possibie that the cqspellant would have gone to the hou% of the prosecutrix to commit rape on her. The possibility ^*,v- that at the behest of her parents the prosecutrix lodged a false report ogainst the oypellant connot be ruled out. •T II,. The following facts +hus emerge from the above discussions. A) It coutd not be ruled out that the age of +he prosecutrix was 16 years or more on the date of occurrence. B) It also could not be ruled out that the qipellpnt was falsefy impficartsd. C) The testimony of -rfie prosecutrix.about raipe on her was wholty unworthy of ony credit in view of her conduct during ttie sexual act, if any, ttie fdKt fhtft she was menstruating ond also since it was not corrobor'ated by medicn) avidence or by the report ofF.SL. TTie possibility that sexuat intercourse, if any, had been committed with the consent of the prosecutrix couU afso not be ruted out. 1'2. Having thus considered the evidence led by the prasecution in its entirety cnd the above facts emerging therefrom, I am of the considered opinion that conviction of the oppellont under Section 450 and 376 I.P.C. and the sentence dwmirded thereunder are liable to be set aside ond the (q)psllo8i+ is entitled to benefit of doubt. >yy\ T;*TW?<n^ 13. In the result, the appeal is allowed. Conviction of the dppellant under Section 450 and 376 I.P.C. and -the sentence awardad thereunder are set oside ond the appeilcmt is acquitted after gwing hirs benefit of doubt. The oppetlnnt diall be set at liberty forthwith, if not required in cmy other cose. 1 ^ JA--—- Sdl- ihebD65" D RaosSge