(J /\ Mo gar/6r WW ........................................... . ............. 11:1 290 mm (W) WWW mmm WWW WWW WW ammm Criminal Appeai No. 625/20G5 APPELLANT “‘unw (F0 Ram Panuia, J. aged about 11 years, R/o. Balind ilv §LL€aLL *1-a n". Q vCLAUU;, knn‘l U Twir- LuLa A. Bi aspur, PS. Kotwali, Distt. Biiaspur ' RESFG*‘ ’ MDI‘IKA. J. Shri Awac‘lh Tripahi Advocae for the apvei1ant. t t bhr: Lqahwmn bmgh, add}. Pubh‘c Praascutvr far thé 1 ESDOndéllt / btate. ORAL 28—5209” D irencira Mishra, J. Appeiiam has prefened this appéai under Section 374(2) x L yL against the judgment of canviction ani oréer of smtence dawci 22—7—1 p s‘ ed bv Keamed Addl. Sessians Juz‘lge, Biiaspur in Sassions Trial No. 113/2005 whereby isamed Additional SeSsions Judge after hoiding the accusw guilty Ior commission of offence under S6ctiq‘m 3'76 read with Section 511 of 13C: scmenceKt him to‘ undergo Rj. for 5 years and to pay a fme of Rs. SUG/~ and 1n default of payment of fine, Io further qndorgo additional KL for one month. J/ ‘ XI—HC—-—78 WW, Wg,W V/q/ prosecutrix aged 4 years and attempted o rape her; as a resuit of which, she cried. RW. 2 Sim. Sunita Maidtija. mother of he prosecutiix asked her servant Santoshi to search th€ prosacutrix, at that jun prosecutrix rammed to her mother v incident is of 11.1.2005. PW} Sunita 1‘ to Medicai Coiiege: Bi‘iaspur, Where I medioai examination repoH is Ex. P/Z prosecutru'; was seized vide EXFM. Spc accused was sem for medieai examir examined him and he gave report of E were taken by the Doctor anc‘! the same siides of the prosecutrix were sent for Laboratoty, Raipur vide EX. P/ii. After hied in the Court of Additionai Chief J committed the case to the Sessions Cou: transfer for tiiai by iearned Additionai St '3. Charge under Section 3‘76 read with Section 511 T.P.C. was framed against the appeiiant. who abjureci his guiit. T eharge against the appeiiant examined accused under Section 313 of Cr.P.C. circumstances appearing against him in the prosecution evidence and pieaded that gie has been faisely implicated in the ture, the accused ieft the chiid. The ‘eeping and nan‘ated the incident. The dakhij a, mother of the prosecutrix iodged the report on 12. 1.2005 Vide Etc-PH. The ehiid was sent for medicai examination tr. (Smt.) M Pandey examined her and During investigation, underwear of the tmap was got prepared Vide EX.E"5. The ation, Where Dr. PK. Tiwari (P.W.-7) X. P/6. Vaginai siides of the prosecutrix was seized Vide EX. Pf‘7. Underwear and chemical anaiysis to Forensic Science usual investigation, the charge-sheet was udiciai Mag‘strate, Biiaspur: who in turn t Biiaspur and the same was received on tssions Judge. i he prosecution in order to estabiish the i1 Witnesses. Thereafter. statement of was recorded in which he denied the crime because of a transaction reiated . W W W 200 341W m (WW) amm 1m mmmm Whmiwm éwff—cmanézr ‘2. Case of the prosacution, in ‘l'ief, is that the appeiiant took XI—HC—78 vb gas‘ [war Cv' Q—MQ‘ dispute. Laamed trial Cmm after huaring ieanmd counsei for tha parties has convictsd and sentenced tha accuswi iiam as mantionad abova. 4. Leamed counsai for {11¢ appel ant submits that the casa of tha prosecution is totaiiy improbabie. The complaina t has denied iodging of the report and the repon was iodgea after medical mination of the prosecuttix. He futther submiIS that there is material impr ement in the evidence of mother of the prOSecutrix which renders her tes y unrehabie. He further submits that in absence of statement of the prose utm'x, the version of the mother of the prosecutrix should he scrutinized teiy and from her statement, it wou‘ld he evident that she has made material ovement with regard to the fact that after taking the chiid, the appeilant took ou his fuli pant after taking out the underwear of the prosecutrix, however, the fact that the appeiiant took out his fuii pant is missing in the FIR. of EXE’L He fu 'ther submits that even for the argument, if the version of Sunita Riv-2 is accep ed in toto, she has nowhere stated that the chiid toid her that after taking out Ier underwear and his own fu‘li pant the accused attempted to penetrate his p 'ate pait in her Vag‘na and thus there is no evidence of attempt hy the appei‘l and the Couit heiow has convicted the appeuant on the basis of conjectures a d suimises. 5. On the other hand, iearned counsei for the State has supported the juclgnent of the triai Court. 6. We have heard iearned counse for the parties. '7. During investigation diary sta ement oi prosecutn'x has been recorded by investigating officer, however, after e tering into the Witness box, she was unabie to degose and, as such, she was give up by the prosecution. The conviction is based on statement of P.W.—'2 Smt. S nita, the mother of the prosecutrjx as also / e aa t' n ' u i r a W m Vi 200 mm (W) WWW WWW wwwm mmiwm awé‘Emanéw WW,WW . .gm‘wu. @zY/W’Y mar m w 200 mm (W) WW W®§R mwm amém‘wém WEIW the statement of iady Doctcr, who has examined the prosecutrix. P.W.-‘2 Sunita has smad that on the date of incident in the evenh1g. Sim saw that her daughtar Swati is nm in the home. she 'sent Sam 3shi ("P.Wn4‘) to search her. who informed after somerime that she is nor traceahie. Affer sometimes: Sunita came weeping in frighrened condition. She narrated that the accused took her inside his house and took her underwear and m5 own fuii pant. She was crying Ioudiy. Her cries were audibie from home The accused ieft her. Her vagina was red and she was complaining pain and she was weeping. She narrated the incident to Padma and on the same night Padma narrated the incident to her hushand—Krisima Kumar. On the next date. she, her hushand and Kishna Kumar went to Poiice Station Citv Kotwah and she iodged the report of EX. P/‘i. Her daughter was sent for medical examination to Medicai College. Biia r. She has stated that thev do not want to remind her daughter about the incid t as it mav affect her mind. in erose- examination. she has stated that While odging report. she has mentioned that the chiid told her that the accused took ou his fuii pant, if this fact is missing in the report of Ex. P11 or in her diary stateme t she cannot teii the reason for the same. 8. P.W.-3 Ramchandra Mahhija, h shand of P.W.—‘2 Sunita has stated that he woke up in the evening, he saw child an W€6pmg ASSllHllng that INF m0th€f might have scolded her, he went to sh On the next date, in the moming at 8.30 am. his brother Krishna Kumar was ng with Swati, thereafter, at about 10.36 am. police came to him and asked h and his Wife to come to police station. They both Went to police station an found his brother Krishna Kumar and daughter Swati there. Thereafter: repoit was lodged by his Wife. His daughter was medically examined even prior to the ‘ arrival with the consent of his brother : Krishna Kumar. P."".—6 Krishna Kuma ‘ has stated that on the date of incie’n/t’at d s u W o . g i i XI—HC—78 WW,W,W cw;— Mov ésLf/azwr W W y.m 200 mm (W) WWW WWW WW?§€IW mmm %ai&rqem&w about 10-11 P.M., Pushpa Davi and 1\ iaya Davi infolmad him that the accused ha$ committeé Burakam with Swati, as a resuit of which Swati is Waeping and in {£16 moming 0n the advice of father, he ed the repoxt. H6 want to poiice station in the moming and ioc‘tgsd ths report in ia'm paper. Paréms ware caliecl in the poiice station. Swati was sant for medicai Examination before arrivai of her parents. When they returned after examinati n of Swati: the mother of the prosecutrix iodged the report. 9. Leamed counsei for the appe ”ant has very much stressed upon the fact that the prosecutrix was medicaily e. amined even before iodging of FIR. Ex. P/l as is evident from the evidence f P.W.-3 Ramchanch‘a Makhija and P.W.-6 Krishna Kuamr Makhija arid oniy aft ‘the Doctor has given his opinion that there was abrasion in the private part of prosecutrix. the FIR. of attempting to commit rape has been registered. whi h falsified the ciaim ofthe compiainam that the report was iociged on the basis information given by the prosecutrn'i. He further submits that the Court heim has piaced much reiiance on the medicai examination report of the prosecutrix. wherein, ahrasionin size of '2 mm X 1 mm has been found on the right side of ur thra. it couid be caused hv naii aiso. He has further argueci that no injuries were f und on penis of the appeiiant which wouid have otherwise present. had he atte pted to penetrate the vagina of a giri of d} 10. So far as argument of ieai‘ne counsei for the appeiiant that report was iodged aftef medicai examination of the prosecutrix is concerned, oniy on this count: the case ofthe prosecution ca ot be rejected because the same does not in any manner prejudice the fact that t e mother has iodged the report against the appellant involving her daughter ag d Lt l/n; years in such heinous crime and 1 g e XI-HC—78 . ".uwW‘ 9K! 1w? mum m Vi 200 mm (W) WWW ammm Mumiwm $3ifmm mmm 9" defame of {he app€1iam of faise im131"pati0n is not acceptabie, panicuiarly when no apparent reason for such false imp “cation has “Wen citef! during triai and tha reason that there was a transaction rel ted dispute is not of such a nature on the basis of which the mother oan involve er own aaugmor‘ 11. Now coming to the noxt questi n Whether the prosocution has boon ahie to estahiish that the appeiiam attempted to commit rape with the prosecutrix as a result of which, the prosecutrix sust ined injuiy found by the Doctor in her medical examination. From the stat ment of P.W.-2 $unita, mother of the prosecutrix which we have reproduce earlier, she has only stated that the child came weeping loudly and on being as ed: she stated that the accused took her to his home, thereafter, took out her un eiwear and also took out is full pant and then she started Weeping loudly a the accused left her and she returned Weeping. She has nowhere stated tha the child informed her that the appellant tried to penetrate his private part into er vagina and out of that pain she started weeping. From the evidence availahl on record, we find no evidence that the mjury present over the private part of 1e prosecutrix was as a result of attempt of penetration hy the appellant. P.Y".-6 shna Kumar has stated that the accused tried to commit rape with the pro eeutrix but this statement is based on information given by complainant ta, who has herself not stated this fact in her deposition. The fact that the a cused took out his full pant is also an improvement from her earlier stat t given in FIR. of Ex Pfl and diary statement of EXD/l. In these circums anees, this Court is not inclined to accept the finding of the trial Court that the prosecutrix sustained the injury, when the appellant attempted to penetrate his penis in the vagina of the prosecutrix, therefore, the finding of the trial Co that the appellant attempted to iapeJcannot n i S i e n WW, Wm, W3; <13/ . C.'QvNovéiT/zmf WW W1 200 mm (W) Hananémw WQW w WWW WW WW §aii=cma¢lé¥r b6 sustained. However: on the eviience avaiiabie on record. this Conn is convinced that the appeliam by tak mg the giri inside the home and making Indecent act by taking out her undenvear has tried to outrage the modestv of the prosecutrix which is an offence punisi ahie under Section 354 of the LRC‘ 12. in the resuit, the conviction and sentence of the appehant under Section 3'76 read with Section 511 ol 1.1’.C‘. it set aside and inStead. the appeiiant is heid guilty. for offence punishab‘le undet Section 354 of I.P.C. and sentenced to undergo RI. for 2 years. i3. It is stated that the appeiiant i; in jaii since 12.1.2005 and as such he has ah'eady completed the jail sentence of about ‘2 years and 4 months. Therefore, it is directed that the appellant be set at liaerty forthwith, if not required in any other Gabv. Sd/— Dhirendra Mishra Judge