••»Sf^ l' ^ H. mr- js APPELLANT: (InJail) HIGH COURT OF CHHATTISGARH, BILASPUR CriminalADpeal No.600 of 1993 Mishrilal son of Shri Vikram Yadav, aged about 34 years, residentof Bansgapn, P.S. Bherumgarh, DiStt. West ChamRaran (Bihar) presently Geedamnaka, Jagdalpur, Distt. Bastar. Versus RESPONDENT: State pf Madhya Pradesh (now State of Chhattisgarh), P.S. Konta, Distt. Bastar. {Appeal under Section 374 (2)ofthe Cpde ofCriminal Procedure, 1973} .! ' Present: None present forthe appellant. No representation is made. Mr. Sushil Dubey, Govt. Advocate forthe State/respondent. . SinflleBench: Hon'bleMr. T.P. Sharma, J ORALJUDGMENT (27-7-20-10) 1. Challenge inthis appeal is to the judgmentof conviction & order of sentence dated 1-5-1'993 passed by the 1 Additional Sessions Judge, Jagdalpur in Sessions Trial No.199/87, whereby & whereynder learned Additional Sessions Judge after holding the appellant guilty for commission of the offence of rape on 14-3-87, conviGted the appellant under Section 376 of the I.P.C. and sentenced him to undergo R.l, for seven years & pay fine of Rs.5,000/-, in default of payment of fine to further undergo imprisonmentforsix months. 2. Conviction is impugned on the ground that without any evidence of commission of rape, the trial Court has convicted& sentenced the appellantand thereby committed illegality. 3. Case of the prosecution, in brief, is thaton 14-3-87 at about 7.15 p.m,, eight years/aged prosecutrix (PW-3) (name not mentioned) was present in'tier house, she was sleeging on the cot and at that timeshe was not yvearing underwear. The accused came to her house and cQmmitted rape on tier. She narrated theincident to her mother. Her mother& father asked the accused relating to commission of rape which the appellant denied, then they went t,o the Police Station andlbdged F.I.R. ;;vide Ex.P-7. The prosecutrixwas sent for medical examination. She was : examined hy a lady doctor Dr. Mrs. K. Rizvi vide Ex.P-6 and no internal & KM' .s^- •siasN-"" externat injury or bleeding was found on her body. Clothes ofthe accused were seized vide Ex.P-2. One currency note of Re.1/- was seized from the prosecutrix vide Ex.P-12. Biood stained and plain soil were seized from the spot vide Ex.P-13. One frock of the prosecutrix was seized vide Ex.P-14. Slides of vaginalsmear of the prosecutrix were seizedvide Ex.P-16. 4. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. After completion oTinvestigation, chargesheetwasfiledbefore the Cburt ofjudicial Magistrate First Glass, Sukma, who committed the case to the Court ofSessions, Jagdalpur from where learned Additionat Sessions Judge receiyed the case on transfer for trial. 5. In orderto prove the guilt ofthe accused, the prosecution has examined as many as nine witnesses. Theaccusedwas examjned underSection 313of the Cr.P.C; in which he denied 'the circumstances appearing againsthim, pleaded innocenceand false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convictecl & sentenced the appellant in the aforesaid manner. 7. In the present case, repeated processes have been issued against the appellant, but the accysed/appeltant is not found in the given address and in such circumstances, 1 have heard learned State counsel, perused the memo of appeal, judgment and record of the trial Court. 8. In order to appreciate the findings of the trial Court 1 have examined the evidenceadducedon behalfofthe prosecution. 9. In the present case, evidenceadduced on behalf of the prosepution is sufficient for drawing inference that at the time of commission of offence age of the prosecutrix was 9 years i.e. below the age of 16 years. 10.As regards./fcommissionofoffence, the prosecutrix (PW-3) has deposed in'her evidence that at th.e timeof commission of offence, she was sleeping on the cpt and was not wearing underwear, the appellant came ahd committed rape (feura /(am)with herand on accourit of pain she shduted, at that timeafter hearing the sound of motorcycle, the a'ccused left her house. She narrated the incident to her mother and her mother .Tiairrated.ttie incident to her father, then they went to hospital. She has further deppsed that at the time of commission of offence, the appellant fc=fl- ,,,s»®"-., •ate:,^. has given Re.1/- to her. tn her cross-examination she has specifieally admitted that her father has tutored her. 11.V. Kameshwari (PW-4) - mother of the prosecutrix has deposed in her eyidence that when she came to her house, her daughter (the prosecutnx) was not normal, she was little bit restless, bloodwas found on her left thigh and ori being asked, she narrated her that the appellant has committed bwa kam with her. Thereafter, tbey quarrelled with the appellant,she assaulted the appellant with belt and then theywent to the Police Station. Asper her detailed evidence, blood was coming froni priyate part ofthe prosecutrix, butshe has not narrated thjsimportant faet tothepolice in herpreviousstatementrecorded underSection 161 ofthe Cr.P.C.. . 12.The prosecutrix was examined by the doctor vide Ex.P-6, but as per the report, hymen was intact, no swelling or injury was found on her private partpr on other parts ofthe body and no blood was found on herprivate part. Medical evidence reveals thatthere was no external injury on her body. 13.Story of oozing of blood from private part df the prosecutrix does not find support from any other source even including the previous statementof motherof the prosecutrix. No person has witnessed theoffence. The prosecutrix was aged about 8-9 yearsand she has stated in her evidence that the appellant has committed bura kam, but she has not deposed that actuallywhattheappellantha$committedwith herandwhatwastheact of the appellant. The prQsecytrix is not a matured lady and at the time of commission ofoffence she is achild aged about8-9years. It is difficultto hold that at that time she wasiable to understand the meaning of'bura kam'. In absence pf corroboration from medical evidenceor evidence fr6m othersources, it isdifficult to hold that the appellant hascommitted rape or sexu^l jntercoursewith the prosecutrix. However, evidence pfthe prosecutnx'clearly revealslhatthe prosecutrix was agedabout 8-9 years, she was a student of Clas^VI, she was not wearing underwear at the time ofincident and that the accused had caught hold of herand had raised her legs, This shpws the indecent act of the appellant oytraging themodesty of awoman. l4.VVhile convicting the appellant under Section 376 of the I.P.G., le^med ~ - 'Additional Sessions Judge has not considered the evidence of the !'.'t ''• "-'.f'•'.•'"•"-r- •%^r .-^. Soma prosecutrix, her mother and corroboration from medical or other sources, and thereby committed illegality. 15. Suspicion howsoever grave cannot take the place of legal evidence. The prosecution is required to prove its case beyond alt reasonable doubts.' Evidence adduced on behalf of the prosecution is not sufficient for conviction of the appellant under Section 376 of the I.P.C. However, evidence adduced on behalf of the prosecution is sufficient for'drawing inference that the appellanttias used criminal force with intent to outrage the modesty of the prosecutrix which is punishable under Section 354 of thel.P.C.. 16.Fortheforegoing.reasons, theappeal is partlyallowed. Conviction ofthe appellant under Section 376 ofthe I.P.C. is altered toSection 354 of the I.P.C., TheappellantwasinCustodyatleastsince 16-3-87till 13-7-87-f6F about four months, same would be sufficient sentence to the appellant under Section 354 of the I.P.C.. Consequently, the appellant is sentencedto undergo R.l. for four months i.e. the period • already by hlm. —- Sd/- T.P. Sharma Judge 1^1 ^^i Bl nsi I ti:l