Sd/- 'ndra ^ Judge 1111 •ri"n-!: JjSS'to1 Page 1. of 8 !SM! 3»1WS •y - . . .-. ll ^^^UN^ [ it '> IBS'K?!;^ , 7?°"T V\f. C.R. 5o.hu, Advocote tsr nppellant. f<Ar. Vinay Ho.r'it, &y. Advocate General for ths State. ir'a w.tsi'ra. J; The instant appeal is directed against the jud9ment doted 30 November, 2004 passed in Sessions Tria! No.95/04 by leerned Additiona! Sessions Judge, Korba whereby iearned Addi" Sessions Judge hns convicteci the Qppe'lant under Sections 363 a /<^\ f f~\ f i i "y r^ ^v t . • i. (^i [T] OT Tt^S Ufl?.L.. o.nQ ^etiTsncsd TO undgroo K.l. Tclr o vssrs ar^d fine of Rs.500./- A R.I. for" 10 ye"r's o"d fine of P.s.500/-, in d's'fciult of SQ.vmsflt o*f fltig to further undepQo R.I. "for 3 nionths ^ 6 mon+hs r'espectiyely. Both the sentences have bee" directed to r'un concurrent !y. However, the conviction under the default clausi 's to b®underoone one after another. Case of the prosecution, 'm brief, is that in the intervening night of 18th A 19th ay, 2004 bhcnsai, his wifs £-uddi Bai and other children were s-leeping 'm the courtyard. as it u'as summer. At sbout .2-2.30 hrs in +he night when he woke up, he found that his daughter wos not present in the cot wh.ere she "'as s!eepin9 and -white bed sheet by ivhich she hcd covered herse!f was lyingbeside-. h Page 2 of 8 iia ii3.si tLss. the cot. A'fter searching fcr her in the vicinity, he lodged the missina reoort in the Police Stcstion KotwoH at about 03.20 hrs r \. giving description of the prosecu+r-ix, whieh was regis+ered as niissing repor't No.34/04. During investigo+ion of missing report, on at 1700 hrs the prosecu+rix was recovered from the of the appellant from the house of Je+hurani vide recovery memo of Ex.P-1. Thereafter, offence under Sect'ions 363 & 376 ofthe IPC wo.s reoisteped on 19.5.2004 vide reoort Ex.P-11. irinq investiqation, prosecutrix was sent for medlcal examino'i'ion to Primary Heaith Centre, Korba after seeking permission from the District hA.agistr.ate, where Csr. (Smt.) R. Pa!iwa!i (PW-4) examined the prosecu+rix and gave her report of Ex.P-6. Underwear of the accused was taken into possescion vide Ex.P-3. The accused was sent for medica! exnmination to Primary Heai+h Centre, Korba, shere Dr, S.K. A9arwal (PW-6) examined him and geve his report of Ex.P-8. SHdes of vagina! secretion were taken in+o possession vide Ex.P-10. After completinQ investigation, charge sheet was filed against the accused/appel'ant in the Court of Chief Judicia! AA.agis+rcffe, Korba, who in turn committecj the case to the CourS- of Sessions Judqe, Bi!aspur and the saine was received by the Additiona! Sessions Judge on +raRS+er for tria!. The prosecution in order to establish the charaes aaainst the accused examined 11 witnesses in all. Staternent of accused was recorded under Sec+ion 313 of the Cr.P.C., and in reply to Question No.l the appeliant has s+ated that he found the airt in abandoned condition in the niaht to whom he had taken to, her house. In rep!y to Ques+ion No.5 he has s+ated thdt in the niaht she found the oirl on road. sh.e was no+ ab!e to te!I her address and therefore, he returned h'er dt 6.00 a.m. He has also stated that he had handed over the gir! to her mothe'' even 1 ^N Page 3 of 8 'tS^'.W'S^'' before arriyu! of the pollce. \. ei+her he had expressed circuRistances appearing w Learned trial Court after I" ons".'er to rest of the questions or he had denied the in tSie 0!*osecution case. 5^i HIH! respsctive parties, •oring learned &. sen+enced th aOBe! 'i.l 5. Learned counsel for tl>e appellant submits that there is no IT Tne oppe'lanT aDdui evidence ava'iaDie on n the prosecutr'x and therecfter rcped her. The defence of the appeilant that in the night he spot+ed the chiid on the road in +he abandoned condition and therefore, he took her with him and spent the night in his mcterna! uncle's home and thereafter returned the child +o her parents early in the morning at 6.00 am. even before arriva! of+he police, is estcblished from the evidence avai'able on record. However, the trial court ignoring the defence of the uppellant has convicted him by the impugned judgment. On the other hand. learned Dy. Advocate 6enera! for the Sta+e ?• has supported thejudgment oftria! court. I have heard learned counse! for the par+ies. It is fiot iti disDuts tho-t nons of the y/ltti^sse^ had sesn the appeliant toking the prosecutrix whi!e she was sieeping in her homs with her mother and the parents of the chi'd have n"+ stated that as to under what circumstances the chi!d !eft the home while she was sleeping with them. As per co.se ofthe prosecution, +!ie child is ihown to have been recovered fr-om the custody of the appellant from the house of Je+huram vide recovery memo of Ex.P-1 at 17.00 hrs prepnreif by the Investigating Officer (PW-10) i" presence of Je+huram (PW-5) & Dhansai (PW-2). • '" 9. PW-1 6uddi Boi, mother of prosecutrix i" Paro 2 of her deposi+ion hcs stated that the accused nresent in the Court had br'ou"ht the r fel^) Paae 4 of 8 11. child bo.ck at eb"ut 6.00 a.m. on the date of incident when thev had lodo.gd the iTiis^ina t^eSQrt In ths Potice StQtion Kot^sH. Korbo.. Shs ho^ 'further sts-t'sd that dt 12.00 p.oon whsn ^hs wo,^ b^thlHQ ths srosgcutrix s.t thQ,t time ^hs eomsisi^sd Qsi^i in hsr" srivots so.rt i^herguQOfs she r®lst@d ths obovss "fetct to hsr' tno't'h€r~i?i*'to.w Samundra Bai, She has fur+her statsd that the prosecutrix did not te'! anything about the accused. •<>. PW~^ Dh^.so.i. fsthcr'1 Q'fth®Qiro^ecutrix, ho,s cilso sto.tgd thdt th^ prosecutrix was missing in the night, whereupon he haa lodged the missing report, police co.me and were searching her. When the pollce personns! were present in his house ot that time the occused brouQht the child back to their home. In Para-9 ofsQ he has s+atea that it is true to say that the accused had brought the ch'Sd back home in the mor'ning and handed over to them. Jethu"am (PW-5) has a!so stated in Para 7 of his desositio" that the accused had 'e'ft his house at 6,00 a.ff'. alona wi+h the chiid. ie a the version GT The pr'osecution wtResses !i"s r challenged by the pr-osecution, therefore, the cose of prosecution that the chiid was recovered of 17.00 hrs from house of JethurGm (PW-5) frorn the custody of the appel! stands faisified. Learned trial court on the basis of the statement of Jethuram (PW-6) and further on the ground thcrf the accused brought back the prosecu+rix and returned her to her paren+s in+he morning has held that the appellant had in fact abducted the prosecutrix from the Sawful custody of her parents ond had taken her to the house of Jsthurom (PW-6) and the defsnce of the accused has been disbelieved on the ground that he did not repor't the ma+ter to the police imrriedioj-ely after finding the girl ong- went to the house of Jethur'arn with fhoni his relations wer-e strained and whose house he had not vferted for lasf three years. Pase 5 of 8 %. WIIlBSiS*"!; :»i8»iiS Jethuram (PW-5) has stated thot he recognizes tns accused and the prosecutrix. i-ie, had signed the recovery memo of Ex.P-1 in the police s+ation. Or> the dnte of in.cident he hcd gone out in connec+ion with distribution of Rr'arr'iage card "nd c'fter r'etur'ninQ he siept in his home. In the mor'hing he saw the accused s!eepin9 in his cour+yard with ons child after opening the gate, u'he" he asked Qbout thst airL he infortngd th^t she i^ his dsuahtsr. Aceused resicfes elsewhere but in^the night of incident he u'as steeping in his house with a four yegr old.girl, Though, this wi+ness has been declared hostile, but he has been cross examined at Isngth bythe pr'osecution arrd in the cross-exnnnination he has denied the suggestiori that on interrogation by The police The grl as a!s< accused had adrnit+ed before hiin that accused had sexua! intercourse wi+h the Gr'osecutrix. He hcs further stated that i+ is incorr'ect +o say that the accused was res'.ding 'm his house. In Parc-6 he has stated that eariier fo" a period of l1 nionth accuses! had resided in his house, however' due +o some qua'rre! between thern he had ousted him and therea'fter for the first t'me he returnec) in +he night of incident i.«.(ith the girt. He has further s+ated that the accused came to his house cnd shouted, however, none of them got up, on which the accused opened the gate and siept. By the time accused came In the night, he has already slept for a while. I" the morninci at about 5-6 a.m. he saw that the accused was sleeping with the prosecu+rix or' the cot. On that day, his brother' ^ his wl'fs 'jvgre Qi.so or'esent En his houss. When hs •scw the child, he enguired about her from the accused and he replied that she is h.is daughter, on which he had abused him and asked him to return the girl, whereupon, he Isft the home with the chi!d at obout 6,00 a.m. In the cross-examination by the dsfence, he has replieo that he does not remembef that the accused had told her thot the gir! had forgo+ten +he way of her house ond therefore, he broug'nt her' with him, He has further stated that on being asked Page 6 of '^. iWtsB-t SSf»- the chi!d was not able +o tell the naine of her par'ents. He has o!so \. stated that when the child vws isaving with his nephew, she was not weepin9. Afl-er close scru+iny of the evidence of Jethur'cFn (PW-6), this Court is of the considered opinion that soleiy on the basis of the statement of this wi+ness, who has been declared hos+ile by the prosecution i+self dnd ^+ateme"t of this witness is not corroborated by any o+her' fevidence, the court belo"' was no+ justified to reject the defence of the accused and +o reo.ch to the conclusion that the accused abduc+ed the prosecutrix from the lawfu! custody of her par'ents and kept her i" the house of Jethuram. Frorn the evidence of Jethuram it is eviden.t that o+her 'ersons were ai.so present in his house on the date of incident, however, none of+he re.sidents of the house has been examined by the prosecution. Furt'her, learned tria! court referring the statement of PW-2 Dhansai in Paro. 11 of the judgment that heigh+ of the canal is 50 feet "nd it WQS not possib!e for the prosscutr-ix to reach o" the canQl. way hns disbelieved the defence of the accused ignon'ng the adn'iission of Dhansai (PW-2) m Para 10 of his a'eposffion that ai! his famiiy members aT'nii as we!! as agsd useo' the cana! way. He has again stated that it is true to say tho.t they ^ot her daughter examined at the behest of the police though she was not given any treatment in the hospita!. He has further admifted that had the accused taken the gir! from their home,he would not have came back to ieave her back. Therefore, in the absence of any evidence reQartiing abciuction ofthe the conouct of the Qccused, w'no re+i about 6,00 am. to her paren+s, defen be probabte ond the story of the cogent, retiable & trustworthy prosecutrix ond in the light of 'umsd Ths chitd o.dniittedlv c.t of the'appeilant cppears to prosecution that child wcs l^^iigs^ 16. Page 7 of 8 "ecovered ot 17.00 hrs from the house of Jethurani when she was In the custodv o"fths a.DSslieint \'s 'f'sl^s cind 'fo.bricstgd. Now coming to the cillegntio" of rape by the appel!ant of the prosecutrix. From the statement of 6uddi Bni (PW-2), mothsr of prosecutrix, it is evident that the prosecutrix comp'ained pain on her private part at about 12.00 "oon while she was bathing her, though the prosecutrix was returned by +he appellant at about •t.l 6,00 a.m. She has sta+'id in her examination-in-chief that even after compfaining pnin. i" he" pr-i.vate pcr't the prosscutrix did not teil anything about the accussd in this regard. Dhnnssj (PW-S), fsther of prosgeutr'ix, in Paro. 3 nf his stQtement hcis sto.tsd thoT the Drosecutrix hsd told her thst the o.ccussd raped her and the accused in fact token the prosecutrix from her cot. However, in Para 8 of his deposi+ion this witness ho.s stated his dauchter was not recovered from the house of Je+hurar" and his daughter hsd not s+ated to hirn or his wife about +he rape. Learned trial court relying upon ths statemsnt of &r, (Sint.) R. Paliwa! (PW-4) and medico legal report of the prosecu+rix Ex.P-6, in whieh she found reddishness & swejl.ing in the vaqina of prosecutrix and she was comp'aining poin and further on the ground that the accused & prosecutrix were sleep'ng toge+her in the house of Jethuram (PW-5), has renched to the categor'ica! finding th.at the accused coffimit+ed rope wi+h the prosecutrix. Do'ctor (PW-4) hs^ statsd th&t on gxGniinQtion she dld not flnd Gliy iryury on any part of the body of prosecutrix though she no+iced swe!!ing and peddishness on the right side of her vagina and she was complaining pain. Hyrnen of the prosecutrix was intact cnd on the basis of examination she has stated tho+ she is no+ in a position to give def'ni+e opinion of rape,however, it is possible that a+tempt to commit rape might have been made, In thecross- Page 8 of 8 WS : examination she has admitted that the reddishness described by her may be cause^ by itching or the same wos possible by some scratch also. Except swelling, reddishness and complain of pain by the prosecutrix, there is no evidence avaibble on record to suggest that fhe appellant made any attempt to have sexuai intercourse with the pr-osecutrix. The child admittedly did not complain anything either to her parents or to any other person inc'uding Jethuram (RW-S. \. Frorn the stntemeht of abovs witnesses. I am of the considered thst the Grosseutrix duriiiQ her stc^/ is/ifh ths aceusgd was comfortable as none of the witnesses hos stated thort she was weeping, frightened or in any manner complaining agains accused while she was brouaht back to b.e'c home. Ther'efor finding of the trial court on the basis of the medicai opinic other evidence that the appellant subjected her to rape i' on surmise.B. u/hich cannot be sustained. of the appellant succeeds. Co' ectlons 363 & 376 (2) (f) of th :, ttte isei is ri@suiT. Tlie the appellant under sentences imposei he is acquit+ed of "SOS' s ere nereDy the above chcrges. The appellont be iiberty forthwith, if not required in nny other ca_S£— Sd/- Uhu-endraMfetaa Judge ;?^:;h-:n'.