HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 813/2005 APPELLANT Hemant Mandal, S/O Shri Kalipand Mandal, Aged about 30 Years, R/o. Omdham Colony, Marla Camp, P.S. Mana Camp, Tahsil and District Raipur (CG) VERSUS RESPONDENT State of Chhattisgarh, through P.S. Mana Camp, Distt. Raipur (CG) Present: Ms. Sunita Jain, Advocate for the appellant. Mr. Sandeep Yadav, Dy. GOVt. Advocate, for the State. JUDGMENT u f (Passed on <73 / 1 / 2008) Dhirendra Mishra, J This crimipal appeal is directed against the judgment of conviction and order of sentence dated 13—9-2005 passed in S.T. No. 1 14/2005 whereby learned 15‘ Additional Sessions Judge, Raipur has convicted the appellant under Section 376(2)(l) of Indian Penal Code and sentenced him to undergo R.I. for 10 years with tine of Rsx 5,000/—, in default of payment of flne, to further undergo R.l. for 3 months. 2. The case of the prosecution as revealed from the written report of EX. P—‘l on the basis of which the F.I.R. of Ex. P—2 was registered on the report of Shefali Day (P.W. 2) is that the grand-daughter of the complainant aged about six years was raped by the appellant in the month of December, 2004. The report was lodged on lst February, 2005 in which it is mentioned that the prosecutrix is her grand— daughter. She came to the complainant weeping and informed that the appellant raped her. When she cried for help, he gagged her mouth and threatened her with life not to disclose about the incident to anyone. She also informed her that blood was oozing from her private part and she was suffering acute pain. The complainant in turn apprised about the incident to Durga Bai, Billo, Sandhya Rai, ”Meenu Das and Jyotsana of the locality who took her to Sarpanch Shyama Prasad Chakraborthy and Mitali Dhali. 3. After registration of the crime number, the prosecutrix was sent for medical examination to Primary Health Centre, Mana Camp, Raipur Where Dr. (Smt.) Amita Jha (P.W. 4) examined her and gave médico legal examination report of EX. P—3. The appellant was also sent for medical examination and his report is Ex. P—4A. 4. After completing investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Raipur and the salne was received on transfer for trial byJlearned Additional Sessions Judge. 5. During trial, prosecution examined 9 witnesses in all, thereafter the statement of the accused was recorded in which he denied the evidence appearing against him in the prosecution case and took specific defence that ‘there is a dispute regarding money transaction and because of the above animosity, he has been falsely implicated, He also examined Shefali Mandal (D.W. 1) in his defence. 6. Learned trial Court after hearing the counsel for the parties, convicted $ and sentenced a the appellant as mentioned in para 1 of the judgment. 7. Learned counsel for the appellant submitted that the complainant has claimed that the incident occurred in the month of December, 2004 however no any specific date has been mentioned and the report ,was lodged on 1st February, 2005. There is no explanation for inordinate delay in lodging the report and in the absence of any specific date of offence, the case of the prosecution becomes doubtful. The prosecutrix claims that she narrated about the incident to her grand-mother immediately after the incident and. she further claims that her grand—motherlhad taken her to the doctor at Mana Camp on the date of incident however the doctor who examined the prosecutrix on the date of incident has not been examined, even the parents of the prosecutrix have not been examined. 8. Shefali Day (P.W. 2) has stated that she narrated about the incident only to Durga Bai who in turn narrated the incident to \ others namely Sandhya Rai, Jyotsana Karmkar, Meenudas and Billo Ghose and she has denied her previous statement of Ex. P-l and EX. D—2 that she herself narrated the incident to the above persons and Shyama Prasad Chakraborty whereas Billo Ghose (P.W. 3) claims that Shefali Day and the prosecutrix told her about the incident. Smt. n. Durga whom the complainant narrated about the incident has not been examined. P.W. 9 Shyama Prasad Chakraborty, member of Gram Panchayat, Mana Camp has stated that he was not informed about the incident before the date on which the report was lodged. It was agued that Shefali Day had borrowed Rs. 5000/ - from mother of the appellant Radha laxmi and when she asked for money, both of them quarreled near the ‘Sweet shop of Ajit Mandal. Shefali Day has denied having borrowed money but she has admitted that a quarrel took place between her and mother of the appellant near the sweet shop of Ajit Mandal and the above fact is also established from the document of Ex. D-4, the report‘lodged by Radha Laxmi as also from the statement of defence witness Shaifali Mandal, owner of the Sweet shop"? fSo far as rupture of the hymen as observed by P.W. 4 Dr. Amita Jha is concerned, the doctor has admitted that rupture of hymen$is possible if finger is inserted and this witness has not given any opinion about duration of the injury. 9. On the other hand, learned counsel for the State has supported the impugned judgment. 10. I have heard learned counsel for the parties. I have perused the record of the trial Court as also the impugned judgment. 11. The age of the prosecutrix has been assessed as 7 years. After putting preliminary questions, the trial Court has recorded her statement Without administering oath. She has stated that While she was going to attend the call of nature, theappellant called her on the temptation of giving Samosa and took her‘ inside his home and committed rape with her after taking out her underwear and his own underwear and thereafter she started weeping and went to her grand- mother and narrated about Whole incident. The appellant had threatened her not to report the matter in police. In the cross— examination, she has admitted that on the date of incident itself, her grand—mother had taken her to the doctor at Mana Camp whom she does not recognize and report was lodged after two months of the incident and she has admitted that in between the date of incident and lodging the report, the accused did not give any threat and she attended her school as usual after the incident. She has also admitted that in the house of the appellant, his three brothers and mother reside with him. l2. P.W. 2 Shaifali Day in her deposition has deposed that the incident is of December, 2004 at about 10—11 in the morning, the prosecutrix came to her, weeping, blood was oozing from her private part. She narrated that the appellant took the prosecutrix to his home on the temptation of giving Samosha and thereafter committed rape with her. She was complaining pain and shouting and crying. The prosecutrix also informed her that the appellant has threatened her not to report the matter to the police. She has further stated that she did not lodge the report odt of fear as the accused had also some qyarrel with the mother of the appellant regarding transaction of Rs. 5000/- which has been denied by this witness, however she has admitted that a quarrel took place with the mother of\the appellant near the Sweet shop of Ajit Mandal and she has stated ,. that the quarrel took place before lodging of report. The mother of the appellant has lodged the report on 175th January, 2005 vide Ex. D-4 mentioning thereinthat Shaifali Day had threatened her that she will implicate her son in the false case of rape when she went to ask for the money which she had given by way of loan. 13. P.W. 6 the Investigating Officer has admitted the receipt of the complaint of EX. D—4 and even the defence witness Shaifali Mandal has deposed that the mother of the appellant and Shaifali Day were quarreling in the road near her hotel .in relation to some money transaction. 14. The conviction of the appellant is based on the statement of the prosecutrix, her grand-mother Shaifali Day (P.W. 2), Billo Ghose (P.W.3) and Shyama Prasad Chakraborty (P.W. 9). P.W. 3 Billo Ghose and P.W. 9 Shayama Prasad Chakraborty are the witnesses of the fact that Shaifali Day informed them about the commission of offence and thereafter report was lodged. Durga Bai to whom Shaifali Day disclosed about the incident has not been examined. The- complainant neither in written report of Ex. P-l nor in her deposition before the trial Court has mentioned the date on which the offence was committed and has given December, 2004 as the date of incident. The prosecutrix as also her grand—mother have claimed before the Court as also in the diary statement that the prosecutrix was treated by a doctor in Mana Camp immediately after the incident, however the Investigating Officer has not cared to record the statement of the doctor who treated the prosecutrix and who could be an important witness about the date of incident, the injuries on the person of the prosecutrix and the person by whom the injury was caused. Explanation for inordinate delay in lodging the report that they were threatened by the appéllant is unconvincing particularly considering the inordinate delay and also considering that Shaifali Day quarreled with the mother of the appellant and report of the R same incident wa's lodged by her on 15th January, 2005. 15. So far as theTeport of Dr. Amita Jha (P.W. 4) that hymen of the prosecutrix was ruptured and there was redness in her private part is concerned, she has not given the duration of rupture and it is improbable that redness would subsist in the vagina after more than a month of the incident. In the croSs—examination, this witness has admitted that the fact that incident is of one month before has been mentioned on the basis of police information and she has not given any definite opinion about duration of the injury and she has also not denied the possibility that the above injury could be caused by insertion of small finger. 16. On the basis of the aforesaid analysis, itwould not be safe to convict the appellant, that too with an offence under Section 376(2)(f) of the I.P.C. which provides for minimum jail sentence of 10 years on the basis of testimony of the prosecutrix aged 6 years as the possibility that her version may be as a result of tutoring cannot be ruled out and the trial Court ought to have given the appellant benefit of doubt. 17. In the result, the appeal preferred by the appellant succeeds. The impugned judgment of conviction and order of sentence is set side. The appellant is acquitted of all the charges. He be set at i a liberty forthwith if not required inj l \