Wm : i In 200 mam (13W) mmiiwm awifatfm WWW. HIGH COURT OF CHHA TTISGARH BILASPUR CRIMINAL APPEAL NO 618 of 2005 Present: Mr. D.N. Prajapati, couns 1 for the appellant. Mr. Arun Sao, G.A. for th State/respondent. (1 1th Octcber 2007) Dhirendra Mishra, J. This criminal appeal is directed against the judgment of conviction and order of sentence dated 30.6.2005 passed in S.T. No. 371/04 whereby leamed Additional Sessions Judge, Dhalntari, has convicted the appellant under Sections 376 (2)(t) of the Indian Penal Code and sentenced him to undergo RI for ten years, pay a fine of Rs.200/- and in default of payment of fine to undergo additional RI for one month. 2. Case of the prosecution, ‘in brief, is that on 24.8.2004 at about 6.30 p.1'n. the appellant committed rape with the prosecutrix, aged about 4 ye ars. At that time her mother GRPRJ FS/246 2/2007 ' 50,000. APPELLANT Chima e0 @ Jeetu @ Jitendra (IN JAIL) Sahu, ged 18 years, S/o. Sudarshan Sahu, ccupation — Riksha Chalak, R/o D nitola Ward Dhamtari, RS. 85 Distt. hamtari (C.G.) RESPONDENT ’The St e of Chhattisgarh Throug RS. City Kotwali, Dhamtari, Distt. hamtari (C.G.) WW (W) mmfzwia; Mm m mwm‘ ., WW wW §N€fmm 3. During investigation b1 prosecutrix was taken into poss of the accused was taken into ] Legal Report of the accused is I sent for medical examination where Dr. (Smt.) Asha Tripathi report of EX.P/ 14. In reply to tt gave report of EX.P/ 12-A. After sheet was filed in the Court Dhamtari and the same was Additional Sessions Judge, for .rial. 4. During trial the prosecution examined 11 witnesses in all. Thereafter, statement of Lalitabai (PW-1) had gone to prosecutrix complained pain o complainant saw, there were b1 prosecutrix. Thereafter, the pr accused has raped her. Repc Police Station — City Kotwali, l: 25.8.2004 at 22.30 hours. work. When she returned the n her private part. When the )odstains over underwear of the osecutrix informed her that the rt to this effect was lodged in lhamtari by Lalitabai (PW—1) on aodstained underwear of the ession vide EXP/2. Underwear bossession vide EXP/4. Medico 3X.P/lO—A. The prosecutrix was to District Hospital, Dharntari (PW-10) examined her and gave .e query of EX.P/ 12, Dr. Tripathi completing investigation charge of Chief Judicial Magistrate, .‘eceived on transfer by learned the accused was recorded, in which he denied the circumstances appearing against him in the prosecution case and stated that he has been falsely implicated on account of animosity and the prosecutrix has been tutored by her mother. He also examined his mother GRPRJ FS/246 2/2007 5 0,000. W m W 200 WW (13W) aw??? mmm WW WW émimanéa Chandrikabai as defence Witness No. 1. However, learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused/appellant as mentioned in paragraph 1 of this judgment. 5. Learned counsel for the appellant submits that the prosecutrix is a tutored witness. Case of the prosecution is that because of rape allegedly committed by the accused, the prosecutrix sustained injuries OV 3r her persons and as’ a result, there was bleeding from her private part, which stained the underwear worn by the prosec utriX. However, there is no evidence available on record that the underwear of the prosecutrix seized during investgation was stained with blood or she sustained any injury over her private part. Her version is not corroborated from th statement of independent witnesses also. Therefore, in view of the discrepancy present in the case of the prosecution, the Court below ought to have accepted defence of the appellant that he has been falsely implicated on account of quarrel between his mother and mother of the prosecutrix, as is a u reflected from the statement of defence witness Chandrikabai. However, the trial Court has completely ignored the sta Chandrikabai. tement of defenc‘:\e witness 2/2007 50,000.’ GRPRJ FS/246 Wm WELT 1:1 200 mmmv Q WWW1§WW *aq‘fcmm 6. On the other hand, learned counsel for the State/respondent supported impugned judgment of the trial Court. 7. I have heard learned CO' have perused the impugned j available on record. 8. Conviction of the appella: the prosecutrix (PW-2), her m father Shishupal (PW—3). The t . the observation of Dr. (Smt.) A was reddishness over vulva of 1 is possibility of partial penetrati 9. The age of the prosecutri: years by the trial Court. She incident the accused was puttii house, took her on the terrace not to disclose this fact to he] suggestion that she has given by her mother. She has also were playing with her and stat nobody was playing with her. denied that she sustained the the staircase and the accused d1 Ansel for both the parties and udgment as also the evidence it is based on the statement of )ther Lalitabai (PW—l) and her rial Court has also relied upon sha Tripathi (PW—10) that there he prosecutrix, therefore, there 3n. r (PW—2) has been assessed five has stated that at the time of 1g on full—pant, he came to her and raped her and asked her She has denied the :he statement on being tutored denied that Pintu and Khilesh ed that at the time of incident This suggestion has also been above injuries due to fall from d nothing with her. ‘ mother. FS/246 2/2007 GRPRJ 50,000. mm (W) (‘ E WI. m _. '. .....g1 200 mm (W) mwm u, Wma¥1¥wm 5 awamqm 10. PW—l Lalitabai, mother o.‘ the prosecutrix, has stated that when she returned from wcrk at 7.00 p.m., she saw that there was blood stain on the unc‘erwear of the prosecutrix. On enquiry, the prosecutrix told hel that the accused took her on the terrace, removed her underwear and inserted his male organ into her vagina and therefore, her underwear is stained with blood. PW-3 Shishupal, :‘ather of the prosecutrix, has stated that on return from his duty his wife informed him that the accused has raped his daughter and thereafter, they went to lodge the report. In cross—examination daughter also told him that the accused raped her on the cried that the accused has raped her daughter. However, in the cross—examination he has tated that Lalitabai did not tell Similar is the statement of PW—5 Janakram. him anything. 11. PW-lO Dr. '(Smt.) Asha Tripathi, has examined the prosecutrix on 26.8.2004 at a]: out 12.20 hours and given the of EX.P/ 14. She has stated that during examination the report prosecutrix did not complain pain in any part of her body and there were no marks of injury on her person. At the time of examination of her private part, her thighs could be spread easily without any pain. Her hymen was intact, there was no injury over her private part, a slide of vaginal smear was ‘ _ L, GRPRJ FS/246~ 2/2007 a 50,000.’ GRPRJ FS/246 2/2007V50,000. W m...u.nnuur g1 200 mm (W) WWW a mm twm aiafrauam that partial penetration was ?repared and she has opined intact and thus, she has opined possible. or infection. also possible because of etching 12. If the statements of the pio‘secutrix and her mother are examination—in-chief has described the incident by using the word “m a? 33%! a1: f‘dm". the prosecutrix, it is very diffi closely scrutinized, it is observed that the prosecutrix in her However, looking to the age of lfult to accept that she would ordinarily understand the meaning of the word, which she was in these circumstances, the the prosecutrix is a tutored The prosecutrix does not utter’ a word in her deposition that be cause of act of the accused she suffered pain in her private part or any portion of the body as claimed by her mother. On th by the prosecution is committe only probable reaction of the Weeping. Similarly, her mothei returned from work, she saw t1? using in her deposition and defence of the appellant that Witness, appears to be probable possible. However, there was no injury on any portion of her body. In reply to the query dated 29.9.2004, she has reiterated her earlier opinion regarding abse nce of any injuries and stated that there was some reddishness over vulva, but hymen was that partial penetration was She has further clarified that the reddishness was 3 contrary, if the act as alleged id upon a girl of 4-5 years, the victim would be of pain and L has also stated that when she lat underwear of the prosecutrix HAM GRPRJ FS/246- 2/2007 50,000." i mmfa‘vm 3mm WEE mmmm‘ ? WWW1¥f€Q§WR §aaimm was stained with blood but she was complaining of any pain underwear of the prosecutri; ‘ investigation, however,'there is r that the same was in fact forw‘ Laboratory for chemical examinz the best evidence to establish t that the prosecutrix sustained there was bleeding, which stain< this, the report was lodged on th about 22.30 hours tl complainant has stated that af1 learnt about the incident an( husband Shishupal who immed the incident to him also. How< she has stated that it is correct home, her daughter did not nari It is also correct to say that in 1 did - not disclose about the in contrary versions with respect prosecutrix narrated the inciden1 In 13. The trial Court has based the testimony of the prosecutrix Dr. (Smt.) Asha Tripathi (PW—ll nowhere states that the victim or she was weeping. The < has been seized during .o evidence available on record 1rded to the Forensic Scienc Ltion as that would have been he allegation of the witnesses injuries as a result of which :d her underwear. Apart from 3 following day and that too, at 1e examination-in—chief the er return from the work, she i thereafter, she called her iately came and she narrated :Ver, in the cross-examination to say that when she returned 'ate about the incident herself. he morning also her daughter cident. Thus, she is giving to time and date when the . to her. conviction of the appellant on and also on the statement of )), who has mentioned in her GRPRJ FS/246 2/2007 50,000‘ WW (W) e Wm (W) mmm mm m WWW % WW§WW $Wm report that there was reddishn and there is possibility of slig doctor has further clarified that because of infection ‘or etching. the doctor that the prosecutrix portion of herbody and even examination of her private part, 14. ass in vulva of the prosecutrix ht penetration. reddishness was also possible There is categorical opinion by did not complain pain on any after spreading her legs for she was not complaining pain. In the matter of Aman State of Haryana (2004) 4 SC observed thus:— “Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary‘ Vulva Violence is as much rape statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete With penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony‘cannot be equated with that of V an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be any significance to the texture of the hymen is sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and 'lacerated earlier. Thus, a relatively less forceful penetration may not give rise to injuries ordinarily However, the remembered before assigning iindings. The shape and the variable. This variation GRPRJ FS/246 2/2007 50,000. Wm i a1 200 Kumar and another Versus C 379 in Para 7 i has been penetration with or without as vaginal penetration; The t mm WW) amgg$ mam amt 3 possible with a forceful att1 with regard to hymen Whi1 with regard to hymen whiq‘ anatomical situation. Nd importance, but inore tha injuries on labia majora. the first to be encountered mwi$wm §§3imm by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence‘ 15L It is settled law that conviibtion of the accused could be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seekin‘lg corroboration. 16. In the light of above prindlple Of law, in the facts of the no medical evidence of any injury, tenderness or pain over her conclusion of the trial Court libia minora or majora, therefore that slight penetration was poss‘ible, based on the observation of the doctor who examined the orosecutrix regarding presence I of reddishness over her vulva, is girl is aged five years, there is present case it is evident that the hereinabove, defence of the the discrepancies pointed out appellant as reflected in the btatement of defence witness Chandrikabai, ,mother of the appellant, who has stated that her bmpt. The anatomical feature Eh merits anatomical feature Eh merits consideration is its i . . . xt to hymen 1n pos1t1ve 1 that in frequency, are the These, viz. labia majora, are 3‘ :7 i not justified particularly when the doctor has herself admitted that cause of reddishness may be because of infection or etching and her opinion regarding slight penetration is based on %uessing. Moreover, in View of GRPRJ~Fsn46 2/2007 50,000." Qio mm T ta 200 t£ 1m