^.,^': a IN THE HIGH COURT DF 3UDICATURE AT BILASPUR, CHHATTISGARH £RIMINAJ^APP£ALtW. / 2004 APPELLANT ..^.^ y>l>'^\e'<-( CAVOY ' •fa @^ovinc) Ram, aged about 32years, S/o. Shri Dashi^th^-Occupation: Labour^fc,- R/o. Village Lunhg^,,Police Station .. ^yr, District Basfar, Chhattisgarh VE RSUS State of Chhattisgarh, Through: SHOX - /- Pollce Station Narharpur, District KanrKer, Chhattisgarh. <A o ,<nt"'-^ -S^L^ APPfeAL UNDER SECTlttN 374(2) QF THE CODE OF t^;.^ • --^-^,^-.'•:y^^ '^•''. .•'. ^^^^^;;^:^^^:J^^^'^;^ ^^ ':^Kli!^]S^Si '"^^y:l- HI6H COURT OF CHHATTIS6ARH AT BILASPUR Cr. Appeal No.944/2004 Single Bench: Hon'ble Shri Dilip ftaosahd? Deshmukh Miinna © ©ovindftam Vs. State of Chhattisgarh PRESENT: - Shri Ranbir Singh Marhas, learned counsel with Shri Sourabh Dangi, counsei for the accused-appellant. Shri Ashish Shukla, S.A./Addl. Public Prosecutor for the State. ORAL JU06MENT (belivered on 08-03-2006) This appeat is directed against the jud9ment dttted 07-10-2002 detivered by Shri M.S.Qureshi, Hnd Additional Sessions Judge (F.T.C.), Kanker in Sessions Case No.292/1999 whereby •rfie appellant was convicted under Section-376 of D'C and was sentenced to under90 rigorous imprisonment for 7 years and a fine of Rs.10,000/- and in defautt of payment of fine to undzrgo additional rigorous imprisonment for 20 months. 2. Briefly stated the prosecution story is •that on 19-05- 1999 at about 10 A.M., the prosecutrix, aged about 28 years had gone to the forest to cotleet firewood. Finding her alone, the appellant came there, pushed her on the ground and mounting himself upon her committed i! 'N;;U8 1 R: 3. W i !) rape on her and ran away. The prosecutrix started crying and while returning home, narrated the incident to Ashok Kumar PW-2, Bhagira-thi PW-3, Ajit Kumar PW-6 and Rajlal PW-ll. The prosecutrix atso narrated the incident to her mother Sukma Bai PW-7 on reaching home. On the same day at 2.05 P.M., F.I.R. Ex.P-11 wis lod9ed in Police Station-Nnrharpur, Outpost-&udhawn by -the prosecutrix who was sent for medical examination. &r. Hemluta Sahu, PW-12 found an abrasion on her back. Upon intemal examinction, she found that the hymen had an old tear and two fingers coutd be insert'ed with difficulty inside the va9ina. No definite opinion could be given about the rope having been committed on the prosecutrix. t>r. Sushil Kumar Supta PW-4 who examined the accused on 20-05-1999 found that the accused- appetlant was capabte of performing sexual intercourse. Vaginal slide prepared by tSr. Hemtata Sahu PW-12 along with one pink skirl- and red coloured nylon chaddi of the prosecutrix seized vide Ex.P-4 and one yellow cotoured nylon underwear betonging to the accused seized vide Ex.P-3 were sent for chemical analysis to the Forensic Science Laboratory, Raipur. Vide report' Ex.P-10, presence of semen and human spermatozoa was confirmed on all the abovementioned articles Ihough the seminal stains were found insufficient for serologicat examination. ia!!'!!.i!Ulu_ ® 4. After completion of investigation, the cppellant was prosecuted under Section-376 of IPC. The appellant abjured the guilt. The prosecution examined as many as 13 witnesses. The prosecutrix could not be examined since she hdd become mentally retarded. &r. ft.K.Chandrawoaishi was examined as a Court witness and after examining the prosecutrix in Court tsstified that she was comptetely. mentally retarded oind was unable to make a statement. No evidence was led by the appellant. The learned trial Judge relying upon the evidence of Ashok Kumar PW-2, Bhagirathi PW-3, AJit Kumar PW-6 ond Rajbl PW-11 relating to res gestae under Section-6 of the Evidence Act and also on extra judicial confession made by the appellont before Preetam Ram PW-1 convicted and sentenced the appetlant as aforesaid. 5. Shri Rcmbir Singh Marhos, learned counsel for the appellant has assailed •the impugned judgment on "the ground that the prosecutrix was not examined in this case. He has fur-riier contended that the testimony of Sukma Bai PW-7, mother of the prosecutrix clearly negatives the allegation of rape levelled ugainst the oppellant. It was also contended that since the appellant was a married person, presence of semen and huinon spermatozoa on the underwear seized from the appellant was of no consequence in this case. He also drew my attention to para-10 of the impugned judgment in which the trial Court has observed that in view of old tear found in •t+ie hymen, -riie prosecutrix wos habitual of sexual intercourse. Therefore, the presence of semen and human spermatozoa on the petticoat, underwear and vaginal slide. of the prosecutrix could not by itself estdblish the guilt of the qspettant beyond all reasonabte doubt. On the otiier hond, Shri Ashish Shukla, ©ovt.Advocate has argued in support of the impugned judgment. 6. Having considered the rival contentions, I have perused the record of Sessions Case No. 292/1999. Prosecution has examined Ashok Kumar PW-2, Bhagirathi PW-3, Ajit Kumar PW-6 and Rajlal PW-11 as witnesses to whom •Hie prosecutrix had narnited the incident immediately af-Ter the occutrence white reluming from the forest. However, -the testimony of the aforesaid wi-hiesses is shurply contradictory by the testimony of Sukma Bai PW-7, mother of the prosecutrix who testified Ihat on returning from 1+ie forest, the prosecutrix had told her -that the appellant had caught hold of her hands. She has categorically stated that the prosecutrix did not tell onything furt+ier to her. Sukma Bai PW-7 being -the mother of •the prosecutrix, the incident, if cBiy, would have certainly been narrated to her by the prosecutrix. Thus, in view of Ihe testimony of Sukma Bai PW-7 euid statement of Ashok Kumar PW-2, Bha9ira-t<ii PW-3, Ajit Kumar PW-6 and Rajlal PW-11 \s r-endered unreliabte. 1><^ 8. So far as the evidence relating to extra judicial confession made by the appellant before Pr'eetam Ram PW-1 is concerned, it is sharply contntdicted by witness Ashok Kumar PW-2 who was present at the wHage meeting and stated that upon being asked the appettant had denied having eommitted any offence. Thus, the testimony of Preetam Ram PW-1 is also rendered unreliable. The medical evidence of br. Hemlata Sahu PW-12 also does not support- the prosecution case since she found an old tear in the hymen and was not able to give any definite opinion about recent sexual intercourse having been committed on the prosecutrix. Having thus considered •(he evidence led by the prosecution in its entirety. I am of the considered opinion that the prosecution has failed to establish the guilt of the appellant under Section-376 of IPC beyond shadow of doubt. The appetlant is therefore entitled to the benefit of doubt. The conviction and sentence imposed on the appellant therefore deserves to be set aside. __-^—- -- 6 i 9. In the result, the appeal is allowed. The conviction of the appellomt under Section-376 of IPC and the sentence awarded thereunder are set aside. The appellant is acquitted after giving him the benefit of doubt and shall be released fo^hwith, if not required in ony other case. Fine if paid, shall be refunded to the appellant. Sd/- Dilip Raosaheb Deshmukh