IMSlWBielvlM. &- HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT (IN JML) ^SPONDENT Qrimiaal Appeal No. 10SO of 1991 Babulal, son of Churaman aged 30 years, R/o Amolipara, Camp-I, P.S, Rajhari Tahsil Balod, District-Durg, M.P. VERSUS State of Madhya Pradesh ORAL ORDBR 24. 03;2008 DHIRENDRA MISHRA, J. Shri Anurag Jha, Advocate for the appeBaat. Shri Arun Sao, Govt. Advocate for the State. Heard. This cruniaal appeal is directed against the judgment of conviction aad order ofsentence dated Ist November 1991 passed iu Sessions Trial No.398/90, whereby the leamed 1st Additional Sessions Judge, Durg has convicted the appeUant under Section 376 ofthe I.P.C. and sentenced him to iindergo R.I. for 10 years. 2, The Superintendeat, Central Jail, Raipiir, vide his coiiunumcatiou dated 5.3.2008 has infonned that fhe appeUaat has been released fromjail on 12(b Pebruaiy 1998 after itadergoiag the jail sentence imposed on him. 3. On ftie ]ast date of hearfng, since ttie appeUant was unrepresented, Shri Anurag Jha, Advocate was appointed as Amicus Curiae to represent fhe appeUant and ai^ue this appeal. 4. Case of the prosecution, in brief, is that the appeBaat committed rape with a miaor prosecutdx aged about 13 years on 4.3.1990 ^tt about 4:00 p.in. The prosecutrix is a mentatty retarded gu-1, She is siifFering from leprosy smce she was one year old. 5. Conviction of the appeUant is based on the statement of the prosecutrix (P.W.2), Hemuram (P.W.l)- father ofthe prosecutrix, Laxminath (P.W.4) who claim to have witnessed fhe incident. The conviction is also based on the statement of Dr. (Smt.) B, Dutta 4P.W.3) who examined fhe prosecutrix s8.er the iacident aiid gave the mediCQ legal examination report of Ex./ P-3. ^SfS 6. Shri Anurag Jha, leamed Amicus Curiae submits that from perusal offhe evidence ofthe prosecutrix, it would be evident fhat she is not a competent witness. Leadiag questions have been put to her aad therefore,'the Court below could not have taken iato consideratioD. her evidence for ftie purposes of convicting the appellant and there is no other eye witness ofthe incident. 7. On the ofher hand leamed counsel for the State supported the impugned judgment argued that the Court below considenng the mental status of the prosecutrix, permitted the prosecution to put her leading questions. Even othenrise, her father Hemuram (P.W.l) aud brofher Laxminafh. (P.W.4) reached fhe place of incident aad saw the appeUant and the prosecutrcs: lying side by side and bofh were naked, They also saw blood oozang from ftie private part of fhe prosecutrix, Their version is duly conoborated by Dr. B. Dutta, who examiaed the prosecutrix aad fouiid injuries over her vagina. 8. I have heard leamed counsel for fhe parties. 9. The ofFence was committed on 4.3.1990 at 7:00 p.m. and the report was lodged on fh.e same day at about 22:35 hrs. by Hemuram, father of the prosecutrix, ia which the appellaut has been duly named. 10. Looking to the a^e aad mental coadition of the prosecutrix, leamed trial Court has examined the prosecutrix and fhereafter recorded her statement witbout administeriug oath. Leading questions have been piit to her. In repty to question No.4 she has auswered that ttie appeUant had sex with her, She has also described the manner ia which the offence was cominitted, / 11 Her father HemUBam (P.W.-l) has deposed that when he iTetumed from. duty, he fouud that the prosecutrix was not present in home, whercupon he went to search her. He was apprised by some boys that she has been confined by fhe driver/appeUant in a rooni. Thereafter he alongwifh his sons nam.ely - Horilal, Laxmi, Sautram aad one more person went there aad saw fhe prosecutrix i?^<.~! .: .l^l^ "^ .^ ' k 'f' :T^»sa ^4 s aud the appeltant in a u.aked position. The pnssecufarix told ttieni that the appellaat has done wrong thing with her. 12. P.W.-4 - Laxminath has also given smular evidence. He deposed fhat they kaocked fhe door of the rooui, where the appeUant had taken fhe prosecutrix, however, the door was not opened, Thereafiter, he went in the rear side aad saw that the prosecutrix and the appeUaut were lying on fhe Qoor. Blood was ooziug froin her private part, Thereafter, poUce was uifonned. 13. The version of the above witnesses are duly conroboiated fiTom the evidence of Dr. B. Dutta who has examiued the prosecutrix aad has noticed blood between fhighs of the prosecutrix. Her hymen was tom, laceration was present and she was complaming pain ia the vagina. Thus, froni the evideace ofthe above witnesses, the prosecution has established the charge against the appeUaat beyond reasonable doubt. 14. On fhe basis of aforesaid aiialysis, I am of the considered opinion that there is no iUegatity or infirmity in the impugned judgnient. 15. In fhe result, the appeal being devoid of substance deserves to be dismissed and is accordingty hercby dismissed^ Sd/< Dhirsndra Mishra Judge Sisiha