ll/Hll ‘UML x 4 WIJQIJIJHLLIII £VH ‘ §m§§€W / V IN ,THE EEGH COURT OFV MADBYA PRADE$RAT JABAL’PU . -' g ' ar’.App‘ea1_No,.’3gg ‘oF 1990.7;1; ~ a: V $67 , / , r Bbnshan son of Narayan Nai ‘ v I APPELLA aged 29 years/R/G village—Mama § V y ‘ . Ponce Station Kurud District Raipur./ .. N ‘ v ' z j - ~Versu.3a ‘Etate, of- Madhya Pra‘clesh / CRIMINAL' , APPEAL’ U/s‘ 57-44 2) (or.‘Pv./c;r \L‘XK z.. " NT ‘“%g; %gm£7£§ .L. . XI-HC—78 WWQA‘ RW,W,W m W/~?z% ] WW(W) mam WWW wwwm 25.01.2007 Shri Janak Ram Verma and Shri C.R. Sahu, Counsel for the appellant. Shri Sandeep Yadav, Dy. Arguments heard. Judgment pass€d as foll‘ Govt. Advocate for the Stata 1W3: ORAL JUDGMENT @01200‘7 SUNIL KUMAR SINHA, J. against me judgment of conviction This appaal is: dimcted axld order of santence dated 23/3f 1990 in Sessions Trial No.557’89, whereby, the accused/appellant was convicted under Section 376 of IPC and was sentenced to undergdrigorous imprisonment for 7 years ard. to pay a fine of RsilOOO/g in default of payment of fine to further undergo RI. for 4 months ‘ The case of the prosecution is that the prosecutrix namely Ku‘ Ashwani Bai, auminor gif. aged about 13 years, was playing near her house at about 12 - were not present at that time. neighbour of the prosecutrixp 1’0 Clock in the noon. Her parents The appellant, who is the 11116 over there, took her to a Katha (a place Where the straw etc are kept), got her lie on the straw and committed sexual intercourse prosecutrix came to the house in the evening, the prosecntrix rr__,__7_h__ i against her] When the father of the XI-HC—78 EW,WE,W W .n’3.. 7% 200 mm<W> WWW mmm ’L WWEWW ‘ %311%‘11:311%¥r wmwm reported the matter to him and. t11€reaften the prosecufrix, her father and other villagers wen“. to fhe Palice Station and lodged. a complaint. Firstly, the compkdut of the prosecutrix was recorded in Roznmchasmm (Daily Diaxy) of the Police Stah'on at No.66 1 vide EX.P/ 11 and thereafter, she was sent for medical examination under the memo (EX.P]7). » Her medical examination was conducted by Dr. (Suit) M. lPurohit (PW-10), who prepared her report (EXPI 9). After receivin the medical report by the Police, a First Information Report (Ex. [12) was registered in the Police Station under Section 376, 354 and 511 of IPC against the appellaut and the 'investigati 11 commenced. The Investigation Officer prepared the site pait (EXP/6) and he also seized 1d the statements of the witnesses the were ‘Iecorded. During e course of investigation, accusediappellant was takel into custody and was sent for medical examination and his medical report (EXP/3A) was prepared. The underwear, hzirs and slides sent by the hospital marked as Article A, B &. C were sent to the State Forensic Science Laboratory, Sagar, for their chemical examination, on which, the report (Ex.-P/5-B) was received from the said authority, according to which, Semen etc was nct found on these articles sent for chemical examination. The charge sheet was tiled under Section 376 of IPC before the Judicial Magistrate First Class— Dhamtari, Who in turn committed the case to the Court of Sessions onr31/1/ 1989, wherefrom, the case was received on transfer in the Court of :J’TO. s underwear of the prosecutrix XI-HC—78 HW,W,W .3.§.8./.7g; 200 Wm<W> WWW wmm mmwm 3 WW£fW®E§R éawaww roduced 2 witnesses. the father of prosecutrix naim rmation Report as well as evidence of Learned counsel for testimony of the prosecutrix‘ inspires oonfldence and her V and truthful. They also argc is exaggerated and is not su and the First Information Re the trial Court committed a Second Additional Sessions Judgq Raipur, who conducted the ilial. vThe learned Additional Sessions Judge framed charges under Seciion é76 of IPC, to which, the appellant denied. The prosecution in ordex‘ to establish their case examined as many as 11 prosecution witnesses. Thereafter, the examination of the accused/appellant was recorded. under Section 313 of Cr.P.C. and the defence also p The learned Additional Sessions Judge after hearing the arguments of both the parties held the appellant guilty of the od‘ence punishable under Section 376 of IPC and sentenced him as aforementioned. appellant is based upon the sole The conviction of the testimony of the prosecutrix, which has been held to he corroborated by the First Info 31y Lakhansingh (PW-2). the appellant argue: that the sole is not fully reliable, as it does not ersion does not appears to be natural Le that the version of the prosecutrix pported by the version of her father port as well as medical evidence and Ln error of law by holding that her XI—HC—78 WWWW QA @ W 200 WWW WWW wwwm [7 WW§WW é;aTFR\ill3n%3T version was supported by above evidence and the conviction based upon the said matarial deSBrve On the other hand, lealned counsel for the Sfate opposes these arguments and supports the judgment of conviction and. order of sentence passed by the trial Court. I have heard learned co have also perused the records In the mattel of Dian] and another its. State of M. 1h. A ex Cawre nx can be acted upon and made rut being corroborated in material rule about the admissibility of ignored by the Courts in sexual held in the said case that in View of sole testimony of the prosecutrix, medical evidence as well as by the version given by PW—8 (her aunt in the said case), to whom, the prosecutrix narrated the incid s to be. set aside. unsel for the parties at lengfh and 3f Sessions Trial. sole testimony of the prosecut the basis of conviction Withc the corroboration should not be oit'ences. The Apex Court also the inthmities present in the which was contradicted by the particulars. However, ent soon after commission of rape, implicit reliance could not be placed upon her sole testimony. In the matter of Chaluiierapénake Anal S.P. S.C.C. 175, the Apex Court conviction of an accused on prosecutrix alone is permissil evidence of the prosecutrix in: IPTO Vimal Suresh Kamble ”S. and another reported in (2003) 3 again held that it is true that the the basis of the testimony of the ile, but that is in a case where the miles confidence and appears to he oooo.o WW(W) reported m 2001 9 S.C.C. d2 held that 1t 1s well settled that the M XI—HC—78 HW,W,W ~ a’q#3gg/w WWW FIE 200 WWMW) / mmwm ) WWEwW ém%wan%m Wmm wmm natural and truthful. The Apex Court held that th€ avideuce of the prosecuttix in that case was not of such quality, and there was no of11€r cvidanc6 on record which may even lend some assurance, short of corroboration that she is making a truthful statement. Therefore, the View taken 13y the High Court is a possible, i i reasonable View of the evidence on record and, therefore, warrants no interference. Therefore, it is clear that though there is no bar in resting the conviction on sole testimony of the prosecutrix, but conviction can be based on such testimc 11y, if the same inspires confidence I and appears to be natural and truthful, but where there appears to be intirmities present in the sole testimony of the prosecntrix other evidence available on record. ‘ lacking corroboration to her testimony, a conviction would not be possible on such sole testimony of the prosecutrix. If we examine the records of the present case, it would appear that the pmsecutrix, who was examined as PW-l has stated in her examination-in-chief that when she was playing near her house, the appellant came to her house and took her in a room (Katha), got her lie down on the straw and thereafter, removed her underwear, closed the doors and said that she will not disclose these things to anybody and he penetrated his private part into her private part, on which, she started weeping. She also states that thereafter, the discharge had taken place and then, the appellant opened the door and the prosecutrix went out and she was contradicted by XI—HC-78 c WW(W) @ .111 200 maxim mmm mw‘wm é WWWffWWA éawm of the room. She further statns that she had narrated the story to her mother, father and to the mother of the accused also. It has' begn observsd by the Court that this girl was of waak mental constitution, sha was also suii‘ermg from epilepsy and she was unable to understand question. For these reasons, the trial Court recorded the ev dance of this witnesses without administration of oath. In tll cross-examination, the prosecutn'x had replied by making gestu‘es and she had admitted that the appellant and his wife, both 11 d went to the place, Where she was playing and since she was wearing a torn underwear, the appellant said for purchasing a new undelwear. A question was put to her that whether the ap ellant had asked her as to Why she is sitting in a naked conditio on road, on which, she had replied ’ irrah'mnative. However, she ] that the appellant had taken her to Katha (placevof occurrence) and pushed her there. was asked to her as to who had gone to lodge the report in the the prosecutrjx has pointed towards the On the very second question as to whether ‘ she was taken for medical examination, "she again answered in negative hy making gestures of her head. 0n another question as to Whether the Police had recorded her statement, she had replied that no Police statement wasrecorded. Last question was asked to her as to whether she had lodged any report in the Police Station, she denied after showing gestures by head. 3am,a¥tlw,i%larag{ d flr $é5> 7o Wm ....... 000900oo¢o~'. Police Station, accused/ appellant. to. d stated in the cross-examination It is peculiar to note that when a question a XI—HC—78 WW,W,W Wm JOw? 200 WW(W) W$IW WWW J— WW§WW ERIWWW éswm If we look into the Rozznmnchasana report 10dg€d by the prosecutrix, it would appear that the prosecutrix has not made any allegation reganiing commission of sexual intercourse by the appellant. She had only said that the appellant had‘ said her to unwear her underwear and thereafter, he said to wear it. She also pointed towards her vagina aiid said about pains in it. 011 being pointedly asked by the Police Officer as to why the pain is there, she was unable to say anything and thereafter, she said that the appellant had abused her‘ On this, the oitlcer writing Roznamchasana has recorded that nothing was clear; therefore, the Police sent the pmsecutrix for medical examination before the First Information Report is lodged and after receiving the medical examination report First Information Report was lodged (Ex:P/.12). The omission about commission of sexual intercourse by the appellant in the Romainchasana report as well as First Information Report lodged by the prosecutrix is certainly fatal to the prosecution. ’ If the prosecutIiX can speak about complete penetration by the appellant in the Court statement on 7l9/ 1989, then, she should have mentioned the sane before the Police also, while the Roznamchasana was reduced into writing by the concerned Police Officer on 20/8] 1988. It appc ars to me that since the prosecutrix was unable to say anything about commission of sexual intercourse by the appellantjperhaps therefore, the Police did not record First Information Repoi at the first instance and kept the matter restricted to the entries made in the Roznamchasana and P.T.O. XI—HC—78 ww,m,m Wm a. In 200 WW(W) WWW wmm wwwm ? WWffWrf—EW éawm and, V when th€ medical r€port calm: to them, fhe same did not reveal much more) came that there may he a case of partial penetration, then only, the First Information Report was lodged. These are the inf'umities which are coming forward in the evidence given by the prosecultrix regarding complete penetration. Not only this, if the contents of medical renort (EX.P[9) and the statement of lady Dr. (Suit) a query was made by the Police on 23f8/ 1988 and when the report of the queq; . Purohit is looked into, it would appear that there was no external injmy on the body of prosecutrix and there was of wound on the right libia, there was Some infection in the vagina and some swelling was also there . 0 no injtny on her private parts. However, there was some mai The prosecuttix was complaining pain at the time of examination. The hymen of the prosecutrix was found intact. The Doctor has opined that there was no penetration in the vagina and the mark ofwonnd was due to infection. Not only this, the Doctor has also opined that the prosecutrix was keeping a weak mental constitution and for which, she had advised her to get examined by Psychiatrist. The father of the prosecutrix has also been examined as PW- 2. He has stated that when he retmned back from the fields, the prosecutrix was weeping and she had complained to him that the appellant had abused her. On her complaint, he understood that the appellant had abused her aughter, hut when the prosecutxix took him to the Katha and s d that she was abused here, then I._, I ;_\, [hiiégn C’ @ :' P.T.O. XI—HC—78 mm,m,fémragt g/Ig @ 3/0 mmo‘o.oooQoooOt¢o‘ooooow ¢§/ 200 WW(W> WWW WWW WW§WW %31%H3WI%3T ‘ only, he could understand that in fact, sexual intercourse was committed against her, 011 Haration of thc said story to him, he took the prosecutrix to lodge the FIR to the Police Station after due consultation With the Kotwar and other persons of the village. It is important to notice has never stated to her father intercourse by the appellant and in fact, at the first instance, the father only understood that this fact hem that the prosecutrix that she was subjected to sexual the appellant had abused the prosecutrix, but when she took him to the Katha, then only, he could guess and understand intercourse. The evidence of the. fath‘er, Doctor as well as the contents of the Roznamchascma and First Information Report are not corrohorating the story of complete penetration set forth by the prosecutrix in 'her examination-in-chief. that she was subjected to sexual In fact, there are intirmities in the evidence of prosecutrix, on which, her testimony does not inspires conhdenoe of this Court and there was a necessity of corroboration in this matter, but her such testimony is not corroborated either by tt e First Information Report or by the contents of Roznmnchasana or evenxby the evidence of father, rather she h/ hasfggi‘i/tradicted by In the facts and circu stances of the case, I am of the opinion that her sole testim 11y was not dependable so as to warrant conviction of the ap llant, therefoxe, conviction based upon the sole testimony of i ff, RIO. +1: E. S a sievidence . the prosecutrix holding it to be XI—HC—78. 3amhm,W ‘ .Q.../%.:.§.€3..70 WW‘ 1H 200 WWW WWW wwwm io WWEWW %3T%wan%w k\ Shyna supported by the evidance of 1hkt1/1e1‘ and medical gvidence, as has be€n 11€1d by the Court is 110‘: in accordanca with law and sama daserves to bc set aside. . ally-w L The conviction and sent aside and he is acquitted of th. It is stated that the app discharged. He be set at Ebert 111 the result, the appeal is allowed. 311cc awarded to the appellant is set 3 charges framed against him. sllant is on bail. His bail bonds are y, if not required iii any other case _i. Wmwawr) Sd/— SU'NIL KUMAR SINHA F ‘\ Judge :-