.(Wibr V “1L XII-189/(Jau) 7 v c J P R 11/94/2,ooo Divisioh Bench (Criminal) CF0000059423 APPEAL F PRISONER N _ N W x 0 ame ~ Father S name WI???" am? “7"7W# W «WéFWQ/ 2W1 WJQWW/ Res1dence c (gig Age , $ J a _ Cw QII Under Sentenced sect1on to “0"”Qf 7 g7é/(/( a"d/‘W(’: ’ wi’éw r B “Q“‘F‘y’z" on ‘ 379’? / 3 2 WV“ M914 K" / ' vwzra&/ W f/ ém/ I ....- . ‘ § 7m 3u79é’ It 1s explamed to the pnsoner that 1f he states or w1shes to be represented by legal practltloner the Appellate (”curt W111 not proceed w1th the base for seven (lays unless the legal practmoner appears If the legal practmoner does not appear w1thm seven days he may not heard at all if the pr1soner states that he does not w1sh to be repre- sented by legal practmoner the court may proceed at once W1th the case arm Will not be obliged to give a hearing to any legal practltroner who should appear ~ Date of-Application for copy of Judgement 'Date on which copy received ’72/9% / 199 /fw‘er/ <14 '~Dated l%€/L/¢15 '199‘” Forwarded to the€HIEF WLW Db ”WI? V f) want/mm} &%/ew W/p $1] , byway. secleé; togather which a copy of Judgement or order passed 1n the case for favour of trans- mtssion to the proper Appellate Court. ‘ .._p A w ._Q. %\, saw?» a Cr ave? 3a/95 w sf wyrv ——¢Jzacg {317% WweW V Date of receipt in...l s Date of receipt record to accompany the .. office a”. Memo of Appeal to the Appellate court No. Forwarded to the Date of receiptjn Appellate Court Date on which Appeal i. 2% 2Wé Whether the prisoner Wishes to be represented L‘ or not — Yes/ No \ r ‘ J If K; Name § ' g 5‘/a #37é’xF V ‘4”a CF Confinedm qwqr Jail Z Kg i (@w XX-HC—«78 vx mm mm mm (We) kmwm W/m Wm 7 $Wm Dwision‘ Bench: - Hca’me ML L.C. Bhadoe and Hon’bie Mr. Dhirendra Mishra, JJ; $-3-2006 Mr. Abhijeet Sarkar, counsel Ifor the appeiiant. Mr. U‘Ns. Dee. Additionai ”ubiic ProSecutor with MI. MRS. Bha‘ma, Pane! Lawyer far :he Statelrespondnt. Qrai §udgmgnt dictated an Dis‘ §er LG. Bhadoo J: - By :his appeai under Sectin 374 (2) 0f the Cr.P.C.. the accused} appeliant has questioned iegaHty, ropfiety am: carrecmess of the judgment 0f conviction and erder of sentence dated 13m February, 1996, passed by the 1" Additicna§ $essions Judge, Q rg, 5n SeSSions ‘m‘ai No.30/95, whereby ‘1earned Additronai Sessiens Judge after hcdding the accused/appeiaant gumy for commission of offence under actions 307 & 376 (2} (f) 0f the i.P.C., sentenced him to undergo imprison nt for iife on both counts. The case of the prosecutio , in brief, is that the prosecutrix namely, Rashmi iodged the First informaion Rsport (ExP-M) in Poiice $tation: Supeia to the effect that she is a beggar, her tether resides in Karna‘mka, mother is dead and she used tc bg on the Railway Station! Biiaspur, there one oid beard person met her wh was wearing white, red shirt and Lungi. He wanted to keep her with him. S e used to caii him as Babe. 8he refused to remain with her and she came to Shiiai. 0n 28-4-1994 at abeut 4 am. she was steeping on the ground, Bab eame and asseuitee‘ her with a sharp edged weapon on he: neck with in ention to cause her death, as a {esuit of XE-HC——»78 W amm _EA. mW ’ fs‘étW $ 2mmm Meurya talkies, the Police me: h a! and they brought her to the Pelice Statien. The neck mjury is giving pain. Receiving this report, the Poiice registered offerice uroder Sectéon 3G? of the LPJS. Cictn‘es cf the prasecutrix were taken iniu pesseseion under ice! examination where she was examined -3) regarding rape and the dectcr prepared iso examined by Dr. SA. Khan (PW-4) in reepect of {he iniuries receive by her and after examinaiion, the decior prepared the injury report (EXP . The frock of the prosecutrix was sent for examination ro the doctor and the dector after examination, prepared the report ExP—6. X-ray was ta en in order to ascertain the age cf the prosecutrix. The inveetigating Officer prepared the site plan (EXP-10}. During pciice custody, knife, the weapon of offense wee taken inte , ' possession from the possession of the accused. The accused was identified by the prosecutrix before the b Tehstidar & Executive Magistrate and the Naib Tehsiidar prepared the ide tification memo (EXP-1 3). The doctor took / the vaginal siidee and thereaft r the siides cf the vagina, frock, knife and Lungi of the accused were sent to the Forensic Science Laboratory, Raipur. As per the report of the Laborat ry, semen and spermatezoa were net found on siides. However, on the froc‘ of the prosecutrix, semen and spermatozoa were found. Accused Dukaiu v‘ s examined by Dr. RB. Agrawai (PW‘2) in order to ascertain the potency d he gave the certificate (EXP-4}. Ciot es of the aecused were taken into p ssession under EXP-3. After completion oi inves igation, charge sheet was fiied in the (Eourt of Judiciai Magistrate, First Cia s, Durg, who in turn committed the case to the Sessions Judge, Durg, fro where teamed Additional Sessions Judge received the case on transfer for trial. Ex.P=11 and she was sent for by Dr‘. Smt. Vandana Gupta ( ihe remit (Ex‘P-E). She was d m P r N i XI HC 78 Guaé’65‘7é WW i gwj Wag 23v examineci 12 witnesses. On the ether hand, statament o? the acéuseai was renamed under sectiw 313 of thi: Cr.P.C. injwhich he denied the materia‘ appearing agairist him in the pruaecution evidence and stated that he is innocent and he has been faiseiyi plicated in the crime. Leamed Additionai Sessions. Judge, hewever, con ic‘ted and sentenced the accueed as mentioned in para 1 ef thisjudgmeiit. We have heard. Mr. Abhijee $arkar. ieamed counsei for the appeiian‘i and Mi. UN‘S. Dee, iearned AG iiienai Pubiic Presecutor with Mr. MRS. Bhatiai ieamed Panel Lawyer en ehalf of the State/reseandent‘ We have perused the record and thejucigme tof the trial Ceurt. As far as commission of off nce under Section 37$ {2) (i) of the i.P.C. is concerned, as per the medic-21 eport. at the time of commission of crime the prosecutrix was aged about 9 ars. After perusei of the regard, we are of the opinion that the prosecution hae faiied' to estabiish chargeagainst the accused for commission oi offenc under Section 376 (2) ('f) of the LRQ. fer the foiiowing reasons: - i. That, in the First informatio Report (EXPA 4), the prosecutrix had not mentioned anything about c mmission oi rape on her. $he has simpiy stated that the accused as. suited with a sharp edged weapon on her neck in order to commit her 2. That, even on the siides, w ich were taken from the vaginai part of the prosecutrix, as per the F$L report (EXP-1 5), semen and spermatozoa were not found. 3. That, Dr. Smt. Vandena Gilipta (PW-3) who examined the prosooutrix with regard to commission of rage on her has stated that there was no r i mf:“?m g e WWW (Wm WwwW an? em‘m WW may“ A3 ~ mw%m;:ftw§am . W . The prasecution in om‘er i3 estabiish charge against the accused XI-HCW78 mm (Wm ‘¢i- WWW \3!’ ./j.g.....111m ‘ Wm.6?. ......' 4"€S ' WW ‘&@W iniurv 4m ,the ,extemal naw hymen was ruptured, an tq was in 6 O’ dock position ismted as i0 whether there \q 4. That, the pmsecuirix in her \ amused has committed rap She went far sleep, ihe acc {esmt of which she became cammitt‘ed on her b 1 the a sh9 regained comdoumes from there. $319 went near she again became uncens: t9 the haspital. in cro3s-exz know about injury on the n'ea Therefore, in the circum$ar to estabiish charge cf rape again hereinabove. Hence, the finding under $ection 37‘5 (2} (f) of the i. iiabie to be set aside. A3 far a$ cammission nf d cf the bndyiagfgge ‘g¥u€er:rrtjzix.mwever ucning, biood was ccming out and hymen and she stitched the hymen She has noi as any sign of commrssmn or rape. evidence as PW-7 has not stated that the e' on her. She has eimpiy stated that when seed attacked her cn neck with a knife as a uncenscious. Whether anything eise was ‘ccused or not she dees not know. When ‘e she found that the accused wee missing a sawmiii and e hoiei, after drinking water, ,ious and she does not know who took her amination, ehe nae stated that she came ta :k only after she woke up from the steep. toes, there is no positive evidence in order st the accused fat the reasons mentioned of the trial Court eonvicting the aceused P}: cannot be sustained and the same is fiance under Section 307 of the i,P.C. i3 concerned, Dr. SA. Khan (PW-é) lhas examined the prosecutrix in respect of injury on her neck and has stated was on the thyroid cartiiage and muscles and tissues were found out. Th doctor has not opined that the injury in question was grievous in nature. Dr. MC. Mahnot (PW-8) has stated in his that there was a cut injury in the size of t2 x 3 x 3 ems. on neck. The inju \ awrmm awa‘wmm érBWae—WWe show that any grievous injury was n the neck. Therefore there was e s3mpie injury and there §s nothing in th evidence that the accused caueed this injury with\‘intention to cause death ffence against the accused/appeiiant under . Sectian 324 of the i.P.C., voiu i niy musing hurt fay dangewus weapens ‘or means, is established which iis punishabie with imprieanment of either - deseription ier a term which mhy extend to three years, or with fine, or with in ihe circumstances, Thefefore. the mosecu on has not been ablé ta estabiish offwce under $ect§on 3Q? sf the LP *. As such, the fmding of the trial Court convicting the accueed under action 3G7 of the i.P.c. eennet he eueteineci and the same 33 iiabie to be set side. in the resuit, the app ai partiy succeeds and the same is partiy aiieweei. Cenvietion and sente ces awareieci t0 the accused/appeiiant under Sections 307 & 3?6 (2) (f) of he LPQ. are set aside and he is acquitted 0f these chargeer Huweger, the eeused is eenvicted under seetion 324 of the i.P.C. and sentenced to unde go RJ. for three years. The accused is in I dy eince 27-5—1994,’the by he has aireaciy undergene the sentence impesed upon. him As such, the accused be set at liberty forthwith, if net g required in any other case. Wmywm %a§‘”ma¥r§sv I m Pamee are entmed for c mixed copy of this order 1 Sdl— Leek Sd/— L.C.BHADOO Judge 50m? i Dhirendra Mishra i‘ " 3 Judge MW.“ \ H J j