HW,W§,W mm (WW mmm mm wW éaaz‘fcrqm WWW mm m APPELLANT Nee! Kumur' @ Nilu, 5/0 Jeevan Lu! (In fhe cusfody) Saf i, Aged 'abou‘r 35 years, Occu afion- Journalist R/o Viilage , P.5. Kurudh’ Dist Dhumfar‘i V’s §$PONDENT i Sfufe fChhcrf'risgqrh. Presem: Mr. 6.5. Ahluwalia, Advocafe for the appellant Mr. NK. Mehfu, Panel Lawyer f0 'rhe respondenf-Sfcwe. Per Dhirendm Mishra J ' This appeal is direded order of sen-rence dafed 23rd Au us'r, 2005 passed by learned Addi'rional Sessions Judge Dham‘rari in Sersions Trial Na.27/03 whereby Rearmed Addi'l'ionai Sessions Judge has c vicied ‘l’he appellant under Section 376 (1) of fhe IPC and sentenced ‘ro undergo Rl. for 07 years and To pay u fine of Rs.ZOO/-, in defaul'r of ppymenf of fine +0 furfher undergo RI. for one mon'l'h. i Case of-ihe prosecufion, i brief, is fho‘r on 6.11.2002 of abouf 5.0 pm. when fhe prosecuirix was p oceeding fowards The place where mER‘ GRPRJ ~/ FS/346w 2/2007 >~ 500351 n m WW,W,W EW,W,W WW ‘ v.1 200 WW(W) WWW wmm WW wW éaéimm mmm For (festival) was being celebra‘tec in +he vil!uge, the accused called her in his home on +he pretext +ha1' she shamd +uke medicine far her grand daughfer and on her refusal, flie accused caughf hoid of her hand, Teak her inside 'l'he house, cammii‘ied sexual in'lercourse wi+h her wi‘rhouf her consen‘l and fur'lher Threa‘lenml her 'l'ha‘l she should no‘l' disclose This fact 'ro o‘l’hers or else he would kill her and sef her house on fire. Report of 'l'he incidenf was lodged on 10.11.2002 in fhe Police hich offence under Sections 376 & 5063 of the IPC was registered. Dur ng the trial‘charge was also framed under Sections 376 (1) d: 5068 of IPC against the appellant. Learned trial court has convicted and sentenced t e appellant under Section 376 (1) of the IPC, as mentioned above. Ho ever, the appellant has been acquitted from the charge under Section 5063 of the IPC. Learned counsel for the‘lappellant submits that the prosecutrix is an old lady aged $5 years, she lodged the report after four days of the incident on 10.11.2002 and th re is no explanation for the delay. She made material improvements i her statement before the court. The conduct of the prosecutrix is ighly unnatural as she did not disclose the incident to anyone for a c nsiderable period. The version of the prosecutrix is also not corrob ated by the statement of independent witnesses though she claims o have narrated the incident to PW‘5 Station Kurud on the basis of GRPRJ ss FSI’246>M 20,007 —w- 50 0051 M mm m 200 WW (W) mavwfaaia? amm W mmmm ~3r %aifatrm GRPRJ Chovalul, PW-8 Dinu & PW-9 O3opaldus, however 'rhese wi+nesses have denied 'l'he same. There are discrepancies in +he sfufernenf 0f fhe prosecu'l'r-ix and oiher' fwo witnesses namely Mo‘iiiul (PW-Z) and Goverdhun (PW-6). The 1'r'iul c ur'1' has erroneousiy held fhu'r 1'he version of 'i'he prosecu‘h'ix is duiy co roboru'ied by 'i'he repor'l' of Dr. (Sm'i'.) Vandana Vyas (PW-15) +hough his wi-rness has caiegorically s‘ra‘red Thar bleeding found during examin ion of fhe prosecu'rriix was because of infection and carcinoma. Fur'r er in Para 9 of her sfafemen'i fhe lady doc-tor has stared fhar injury ascribed in MLC repor'i could have been caused Jus'l' before her exami a'l'ion and 'l'he prosecu'l'rix was examined after 4 days of ‘lhe inciden'l'. On The ofher handy le rned Panel Lawyer for The S'lafe ‘has supporfed +he impugned Judg en'f and argued +ha+ only on The sole Testimony of The prosecuTrix convicTion can be based. The accounT given by The prosecuTrix is duly c roboraTed by The sTaTemenT of MoTilal (PW-2) d Goverdhan (PW-6). He furTher argued ThaT The presence of human semen over The vaginal? slides of The prosecuTrix, underwear of accused & Sari of The prosectlfTrix has been confirmed by The Forensic ScienceLaboraTory. l l x i I have heard learned ounsel for The parTies and perused The impugned judgment 1/7007 is 5i; P1“ PSI 7 ’n) mmmm @ W]. m W 200 Wm (W) amggm mmmm PK? mangmaigam Learned wial court has convicfed +he appellant on fhe basis of The sfm'emenf of the prosecu'l'r'ix and her son Moiilal and also on The basis of sfufemen'f of Dr. (Sm'l'.) Vundmu Vyas (PW—15), who examined 'l'he proseculrlx and gave her MLC r' porf af Ex.P—13. The prosecufrix, wha has een examined as PW-i, has stated Thar accused resldes a1- a distance o 100 meter from her house, she reside wifh her son, daugh‘l’er-in-law a d fheir children. The inciden‘l' is of 2“ day of Diwali when ma? was b n9 celebrafed in fhe village. When she 'was going fo wifness ma? in fh evening a‘i' 5 pm, 'i'he accused called her fa fake medicine for her gran daughfer, whereupon, she replied fhaf she shall be collecting if while e‘iurning, on which fhe appeilanf caugh'i her hand and fook her inside hi home. She reques‘i'ed 'lo be spared wifh folded hands, however, he Took her +0 fhe place where animals are fied and fhereafl'er he fook her in f § e prayer room, frock ouf her clothing and mounted on her. He ignored he requesi- and when she ‘tried ‘to shouf, he gagged her moufh by inserting loth. He fur‘ther 'threa‘tened her not to disclose this incident to anyon and out of fear she promised that she i I won‘t disclose to anyone and th reafter he raped her Thinking that he had threatened to beat his sonland daughter-m-law she did not disclose the incident to them She was d the clothing worn by her as the same have become dirty, thereafte , returned to her home and slept in the l GKPRJ ~ FC/24o w 2/2067 er 50.€‘:-’)0. - x:\ ;J ‘;i‘l y ? Q night On fHe next Jay her stn Mo1‘ilal wen'l' +0 fhe village Basikhni and re'rur-ned only on Safurday. She has furfher sfu‘red 1'hm‘ on Friday also accused came 1o their hause The villagers informed her son Mo‘Hlal abour The incideni' who in 1‘u n enquired from her and asked her 10 accompany him 'io The Police +a'l'ion, however, inifially she refused and fhereaffer on being asked by er son, she wenf 1'0 fhe police sfafion and lodged fhe report Apart fro ofher suggestions, The proSecutrix has admitted in her cross-exami ation that her son Motilal had advanced Rs.10,000/- loan to Goverdh n and accused Neelkumar Verma Doctor‘ stood guarantor for Goverdh n. Goverdhan d: accused Neelkumar both have said that they shall be wing Rs.20,000!— after 4-5 months but the said amount was not retur ed by Goverdhan. She has further stated that both of them are jaurn ists. She has further admitted that her son Motilal had complained Nielkumar that Goverdhan has not returned Rs.20,000/-. PW-Z Motilal, who is s n of the prosecutrix, has deposed that on theday of mat in the mornin he had gone to Village Basikhai with 15-16 other villagers leaving his‘m her, wife and children in the home and he returned on Friday i.e. on ,h, Howeverthe did not learn about the incident on that date. On Saturday 8-10 perSOns present in the bus stand were talking about thelincident and were accusing himAthat he is ‘ GRPRJ — FS/246vw 2/2087 b 56,0QG A m m E 200 mm (W) Wmm _§— WW wm $aimm A J, l" VLJ A“: m m Wt 200 m m (may) § i$§§lg% mmm ~g~q mgfmwm no? inking any ucfion despife “the said incidznf of rape has accurred in x his own family. Thereafter, h rammed home. Goverdhun Told her 0n the that amused has co miffed rape on her mother in The prayer way room. Affer learning from Go erdhan he did no? inquire from anyone and sfraighfaway proceeded 1'0 p ice s‘fafion Kurud along wifh his mo‘rher & wife and thereaffer iodged report He Tried fo ask from his mother buf she did no‘t feli anything o him and the report was infac‘r iodged by his mo‘l'her. I If fhe sfafemen‘rs of a ove fwo witnesses is cioseiy examined, it is § V observed that there are m eriai discrepancies between the versions by the two witnesses as Motiiai, son of the prosecutrix, has given aategoricaily stated that he ked from his mother, but she did not teli anything to him, whereas, in e FIR & court statement the prosecutrix has stated that she narrated the incident to her son on his return from E the village Basikhai. There i also a discrepancy in the statement of these two witnesses regardi g presence of Motilal in the viliage on the date of incident, as the pro cutrix claims that her son was present in the village on the date of incident and even on the following day, whereas, her son has stated at he had already gone to Village Basikhai in the morning of the date oéf incident and returned] ‘fromrthere only on Saturday i.e. on 8*“. // Ehrg; P‘s/246w 2/2007 -s moo; “ Wm Q1 200 3mm (W) mmfaaiw mm m WWW WW WW %aifatranéw M7r‘ o In The Hgh‘r of The ab discrepancies, fhe delay of 4 days in Iodging'rhe FIR uf‘rains signif cance. Even ofherwise, 'rhe offence is alleged #0 have been commi'H' in The house of accused in which upur'l’ from accused his wife and Two iidren were residing. AliegaTion of The prosecuTrix is To be seen and preciaTed in The IighT of The admiTTed facT ThaT There was a Transac on relaTed dispuTe beTween The accused and The prosecuTrix 6i her son oTilai (PW-2). So far as The corroboraT on from medicai evidence as observed by The Trial courT To The sTaTeme T of The prosecuTrix is concerned, from The sTaTemenT of Dr. (SmT.) V dano Vyas (PW-15) in Para 6 To 9, The injury found on The person of e prosecuTrix could be a fresh injury, as admiTTed by The said docT , and admiTTedly The prosecuTrix was examined afTer four days o The incidenT. FurTher The reason for bleeding from The vagina was s a resulT of infecTion or carcinoma, as opined by The docTor. There ore, The finding of The Trial courT ThaT version of The prosecuTrix is d ly corroboraTed by The medical evidence as also from The sTaTemenT of oTilal (PW-2) is conTrary To The evidence available on record. i 50 far as The FSL repo T by which The presence of human semen has been reporTed is concerne ‘, The original reporT is noT available in The record, even oTherwise, The p osecuTrix herself has sTaTed ThaT afTer GRPRJ M FS/245 2/209? w some ’ e o WW 1a 200 Wm (113W)