CF000006083"' IN THE HIGH COURT GF MADHYA PR&DESH AT JABALPUR. Criminal Appeal NoA°\ ^— /96. ^ APPELLA£1T< (IK JAIL) Kedarnath S/o^ Man Sai Gqnd age 23 years R/o^ Village- Sautar PS-Pratappur Dlstt- Sarguja^ MP^ RESPONDENT, -Versus- State of M^P^ through S <.O « ,PS-Ambilcapur Bistrict- Sargaja^MP^ CRININAL APPEAL U/S» 374(2) OF THE CODE OF CRIMINAL PROCEDURE-1973. HIOH^COVRTOFCMHATriSGARHATJSlLASPUR (Hon. Nr. Jystlce Prjtlnlcer Diwalcer) Crimjnaj Appe^i No. 1012 of 1.996 APPELLANT RESPONDENT VERSUS Kedarnath Kaushik State of Madhya Pradesh Post for pronouncement of the judgment on ((.03,2011, Sd/- Pritinker Diwaker Judge S i'- '\ .,—1j ^ ••••"y ^^ HIGH COUIIT OF CHHATTISGiARH AT BILASPUBl (Hon.Mr, Jusfcice Pritinker Diwaker) Criminal AppeaS No. 1012 of 1996 APPELl.ANT RESPONDENT VERSUS Kedarnath Kaushlk State of Madhya Pradesh Shri ShaktSraj Sinha, counset for the appellant Shri Vivek Sharma, PL for the State CREN£NALAPPEALUNDeRSECTXON374f2 CODE OF CRSMZNAL PROCEDURE^ l_U._B>...e_MJE_N_T (f/.03.2011) The present appea! arises out of the judgment and order dated 10.04.1996 passed by Sesslons Judge^ Ambikapur in Sessions Trial No. 29 of 1995 convicting the accused/appeSlant for the offence under Section 376 of JPC and sentencing him to undergo rigorous imprisonment for seven years. 2. Facts of the case, in brief, are that on 03.02.1993, FIR Ex.P-3 wasJodged by the prosecutrix (PW-2) aged about 11 years alleging in it that on 01.02.1993 when she was asleep in Verandah of her house.. in the mid nlght. on account of pain in her private part she woke up and saw the accused/appeSlant^ who was staying jn her house as a guest and happens to be her maternat unde in reSation,. penetratlng hls private part into her private part after removing her underwear. Thereafter she cried and called her mother but as the door of the room where her mother was sleeplng was boSted from outside; she couid not come out. When the prosecutrix opened the door, her mother came out and upon hearing the entire Incident from her (the prosecutnx)/ her mother beat the accused/appeliant. Based '~^ ^ :•!^ -2-- on this FIR/ offence under Section 376 of IPC was registered against the appellant and after investigation challan was fiied on 09.05.1993. 3. So as to hold the accused/appejlant gulltyy prosecutlon has examined 08 wltnesses in support of tts case. Statement of the accused/appelSant was also recorded under section 313 of the Code of Crlmjnal Procedure in whlch he denied the charge ievel!ed against hsm and pleaded his jnnocence and false imptication in the case. 4. After hearing the parties the triai Court has convicted and sentenced the accused/appel!ant for the offence under Sectlon 376 of IPC. >, Contention of Shri Sinha^ learned counsel for the appeliant is that present is a case of false Implication because earlier the appeiiant was residing in the house of the prosecutrix as a tenant and there was some dlspute in respect of payment of rent. Me further submits that a very unnaSurai story has been put forth by the prosecution which under no circumstance can be relled upon. It has been argued that the lady doctor who had medically examined the prosecutrix has not been examined by the prosecution and in absence of any corroborated medlcal evldence.. the appejiant cannot be convlcted under Section 376 of IPC. According to him even if the entire prosecution case is taken as jt Is at best the offence under section 354 of IPC would make out against the appeilant. 6. On the other hand supporting the smpugned judgment it has been argued by Shri Sharma, iearned counsel for the State that taking advantage of the helplessness of a mlnor girl who was in deep sleep, the accused/appeiiant first removed her underwear and then penetrated hls prlvate part tnto hsr -^- private part. He submits that Statement of the prosecutrix has been duly supported by her mother namely Anita (PW-3). He submits that even in absence of examjnation of the Sady doctor who had medically examined the prosecutnx^ the appellant can be convicted solely on the basis of the evidence of the prosecutrix, He submits that the trousers and sljppers of the accused were seized by the police from the place of sncident and the seizure was made by Herman Lakra (PW-4), According to hlm no prudent man would invoSve hjs minor daughter in a case of 376 of IPC just to take revenge from anyone. 7. Heard counsel for the parties and perused the material avaliabie on record inciuding the judgment impugned. 8. Prosecutrix (PW-2) in her Court Statement hasstated that she knows the appellant who happens to be her maternal uncle in rejatlon. At the time of Sncldent she was studding in 6th dass. On the date of inddent she was sieeping in the Verandah of her house aSong with her younger sister whereas her mother was steeping aiong wsth her elder sister ihslde the house. At about 8 - 8.30 p.m. the appeiiant came to her house and stayed in the night and arrangements were made for his sieeping. She has stated that at ab.out 11.30 O'dock in the night on feeling paln in her private part she woke up and saw the appeilant trying to insert hls private part fordbSy into her private part. She ralsed cries and caJSed her mother but her mother could not come because her room was bolfced from outside. She has stated that when she opened the door. her mother came out and at that time the appelSant was stlti sieeping on her cot. After removing the quilt her mother caught hold the appeilant by his hair and then beat him and when her neighbours were called, the appeiiant fied away from her house. In cross-examlnation she has stated that ^i.^-^fc^ ""'~^Y ^i ^•:^ © -4' earlier the appellant was livjng in her house as a tenant for about 25-30 days and there was some dispute between hlm and her parents as a result of which the appellant left her house but he had not paid rent of her house tjll then, In paragraph-12 she has reiterated as to j.n what manner she was subjected to physical rejatlon by the appellant. 9. Anita (PW-3)-mother of the prosecutnx in her court statement has stated that in relation the appejiant happens to be her brother and on the date of jncident at about 8 p.m. he came to her house and stayed there at night, She has stated that jn the night the prosecutrix was sleepjng in verandah and the appellant was sleeping in nearby corndor whereas she was sleeping along with her elder daughter Inslde the room, At about 12 In the night upon hearing cries of the prosecutnx she tried to come out from the room but she could not because the room was bolted from outside and then she asked the prosecutrix to open the door. Thereafter the prosecutrix opened the door and narrated the entire jncident to her. She has stated that when she came out of the room^ saw the appejjant sleeping on the same cot on which the prosecutrix was slept She has further stated that she had beaten the appellant and when her nelghbours were catled/ the appellant fled away from her house leaving his trousers and siippers. Thjs witness also admjts that earlier the appeilant had stayed jn her house for about 2-3 weeks without paying any rent as a result of which there was some dispute between him and her husband. Panchulal Biswakarma (PW-5), father of the prosecutrix while supporting the case of the prosecution has stated that on the date of jncident he was not ln hjs house and when he returned on the second day^ hjs wjfe Anjta (PW-3) narrated the entire jnddent to him. He has stated that his wlfe had also jnformed him that out of anger she set trousers and slippers of the I"Y '^. ";. ^ :J -5'- appeljant on fire however haif burnt trousers andsiippers of the appellant were seized by the podce, Viraj (PW-3).. a seizure witness of Ex.P-1 has not supported the prosecution case and turned hostjle. Herman Lakra (PW-4) is a seizure witness of trousers, slippers and handkerchief of the accused has supported the fact of seizure. Maheswar Singh (PW-6) had registered the FIR (Ex.P-6). A. R. Sahu (PW-7) - the investjgating Offlcer has supported the prosecution case. Dr. A. K. Bansal (PW-8) who had medically examlned the appelSant has stated In his report Ex.P-5A that he was capable of performing sexuaj intercourse. The iady Dr. Smt, S. Minz who had medicaSSy examined the prosecutrix has not been examined jn the Court. 10. Minute examination of the evidence makes it clear that on the date of incident the appeilant came to the house of the prosecutrix and stayed in her house at night. The evidence also makes jt clear that at about 12 O'ctock in the night when the prosecutrix who was a minor glrl aged about ll years was in a deep sjeep, taking advantage of her helplessness the appeliant took out her underwear and was trysng to insert hfs private part into her private part. As per the statement of the prosecutnx, when she felt pain in her pnvate part she woke up and seeing the appeilant trying fco insert his pnvate part into her private part she ralsed cry and then the appellant left her. Though merely on the statement of the prosecutrix the accused/appellant can be convicted but in the case in hand it appears that when the appellant was trylng to insert his private part into the prlvate part ofthe prosecutriXy she woke up and cried for help then the appeliant left her. It is also settled position of law thaf even the slightest penetratlon is good enough to constitute the offence under Section 376 of IPC but in the case in hand st is not very clear as to whether the penetration was done by the appellant or not. Therefore •^-.^ i ( / -6- the statement of the prosecutrix in respect of commjssjon of the offence under Section 376 of IPC is not conclusive. Though the medlca! report of the prosecutnx is there but the same is not exhlbited and the doctor who had medicajly examined the prosecutnx has not been examined by the prosecution. Even the medica! report shows that no injury whatsoever was detected on the person of the prosecutrix and her hymen was Intact, The doctor has oplned that no deftni'te opinion regarding attempt of rape could be gjven. Keeping in view of aSI the aspects of the case.. it wjJJ not be safe for this Court to convict the accused/appeSlant under Section 376 of IPC and benefit of doubt has to 90 to the accused/appellant. It is a well settSed ieaal posjtion that if an accused js charged of a major offence but is nofc found guilty thereunder, he can be convicted of minor offence^ if the facts estabJished that such mlnor offence has been commjtted, Considenng the entlre evidence of the prosecutrix and other wltnesses., prima facie the offence under Section 376/511 of IPC is made out against the appellant. 11. Accordingiy the appeal is partly ailowed. Conviction of the accused/appeiiant under Section 376 of IPC is set aside and in view of what has been stated hereln above, the accused appeilant is hereby convicted under Section 376/511 of IPC and sentenced to undergo rigorous Imprisonment for one and a half years and pay fine of Rs.2000.. in defauit of payment of fine to further undergo rigorous impnsonment for six months. As the appellant Is on bail, hls bail bonds stand canceiied and he is dlrected to be sent back to jaii forthwlth to serve out the sentence so imposed. Sd/- pritinkerDiwaker Judge