C.22 311^1 ^T f^ti?F37l|t?T 5h+ii<=h ^a 'S^sf ^tMH^, ^Ti1<i4i<o, ic^ni^y 3iT^?r ^ra^ HW^l ^^j^—•^•———•———•——^.^ 200 fcl^^T' 3TT^T ^RITW^ftU CM<if<n<ili *ii^<yil Tt h^\ <R»t^i< ^T 3?rf^W 3TI^T mOH COURT OF <;HHATTI8GARH BILA8PUR CRIMINAL AllPEAL N0. 217 of 2003 APPELLANT (InJail) Dil KESPOMD^m' hanlal Yadav, son of Laluram Yadav, ag^d about 37 years^ Ocjcupation- Peol, resideat of ViUage- Ba|gbdar, PoUce Station-Kanker, itrict- Kauker, (CG) VERSUS l'h|e State of Chhattisgarh, through the Di^trict Magistrate, Kanker, District cer(C.Q.) Present: Mr. Shivendu PandvA Mr. Neera] Mehta^ P^ counsel for fhe appdlant. f. for the State/respondeat. Dhireadra MJshra, J. This criminal appeal conviction and order of passed in S.T. No. 325/0 Sessions Judge, Kariker Secfions 376 of the lac undcrgo RI for 10 years, of payment of fine to und< 2. Case of fhe prosecut| fhe appellant took fhe JimGMENT ber 2007) is directed against the judgment of ieateace dated let February 2003 2 whereby leamed First Additional convicted the appellant under Peaal Code and senteaced him to iy a fine of Rs. IftOOf - and ia default ;o addiUonal RI for six months. lon, in brief, is that the on 23.3.2002 pro^ecutrix, aged about six yeay^. on fhie -HC-22 ^n^T^T R^jcb 3?n^r 9b*iicb ^f^a ^"^^ h "^a? ^rpnwT, ^TTI<i4i<o, I®i<rti<i^< ^rif^T 'cra^ Hddi 5nHl<sn*' *' "*"'**^T;^ 2®0 ^^T' ^IT^T '^IT^R «(^a ^- teniptation of Jalebi and veraiidah of the school. H^ fhis fact to others. On weeping at the tiiae of taldrj She examiaed her private ^ <=M^(<yi<ilTi -41*10! ^ f^l<i <Rti<^i< '^ ^rf^R 3?rT^T coniniitted rape with her ia fhe further asked her not to disclose S7.3.2002 the prosecutrue start^ g batli and on beiag asked by her graiid-m.other (Nani) Jayantji, she disclosed about fhe iriGident. art aad saw that there was some swetUng aad bloodwas comj|o.g out. Panchayatwas conveaed ia the vUlage aad in fhe said|Panchayat fhe appeUaat was also caUed, wfao conjfessed h|ts guilt befbre the Paachayat. Thereafter, report was lodg^d by Raaieshwrar Kalar (PW-2) m the poUce station on 27th M^rch 2002 itself. 3. Duriag mvestlgation t|ie prosecutrix was seat for m^iical exaiaination to Govt. K.D. Hemlata Sahu (PW-8) exa^uied her and gave her report of EX.P/ 17. Vaginal sUdes prosecutrix were taken into |Hospital, Kaaker wfaere Dr. (Bflrs.) and wearing appards of the possession and the saaiewere seat for chemical examLiaation | to Forensic Science Laboratory, Raipur. However, F.S.L. rq|)ort was not produced duriag trial. After coinpletuig investigatjion charge sheet was filed m the Court of Chief Judicial Ma^istrate, Kanker and the saaie was recdved by learned Additioa^al Sessions Judge for trial. 4. Duriag tdal fhe prosjecution examiaed 10 witnesses in alt. Thereafter, statdnent o|F the accused was recorded whereui he pleaded mnocence and false iBiplication and stated that IL 317^1 ^T 'f^Tw^n^T 5h+lich <lf^fl ^ 'ysi ^I^IH^, ^Ti1<i4i<o, f^<ni^iy sn^r 'q^? ^iW^l ^^^..——.——.—.•.—•.——••^F^ 200 fc<^<ff* 3?i^r'^dTw^f^r 3 father of the prosecutrix had <=bl<iI<n<I1i ^Hi^KriT"? f^l<^ <f^^i< ^sT^m^n^T asked for Rs.5,000/-, which was denied by hiai aad fherefore, jhe has beea falsely impUcated by him m fhe above offeace. He fcxammed his wife Savitri Yadu as defence witaess N6. 1. Ho|wrever, learned trial Court after hearirig courisel for fhe rejspective parties, convicted aad scafeaced fhe accused/appel^aat as m-eationed ia paragraph 1 offhis judgmeat. 5. Learned counsel for appeUaat has beea falsely fche appdlant argued that fhe LaipUcated ia this case. Proni perusal of the First InfornJLation Report and the mcdical examLiaation report of the pro^ecutrfac, it would be evideat that it?s a case of false implicati^n as there is overwriting ia fhe medical report of Ex.P/ 17 wif|i respect to time. It is statcd that / tiie report was given around the offence was registered on 1.00 p.m. on 27.3.2002 whereas 27.3.2002 at about 19/20 hours. He further aj^aed thaf vcrsjiori of the prosecutrix does not iaspire confideace as froni perusal of paragraph 2 of her statemeat it would be ew^ent that after sayfcag fhat the accused did not do anythiiig,| categoricaUy stated fhat no vUlage and whatever she was she has added the allegations of sexual intercourse subsequ^ntiy. Evca her grand-iiiofher (Nard), to whom she discloseti about the iacident for the first time, has not beea exaia(ncd and fhe prosecutdx has Panchayat was convened in fhe Istatiag before the Court, she was -HC-22 31T^T^T f<Tli<=b 371^1 $b+ii<=b <if^a -^ '5^':;Eirai^PT, ^Ti1<i<i<o, (^<ni^y 3ffif?T M3tcb NI^CTI 'g^q^p*"'**'****'****"*"'*'*"***"—*-^;?^ 200 ^TC^T" cr»Ht<n<IlTi *iM<nY "^ fe^ <F»it$i< '^3?rf^m3^n^T statiag for ttie first tiine aii^l before fhat she did not disclose fhis fact anywhere. With res^ect to extra judicial confession of the appellant before the Pa4ichayat, it has been argued that witnesses of e:3rii'ajudicialco|nLEessidnnaineIy P.W.-3 Narrotam. P.W.-4 Goverdhan aiid P.W.J9 Rupdhar Jain have stated that tliey are deposinig for fhe prst tiiGie before fhe Court. It is further argued that fhough Ijhe witoaesses have denied that fhe extara judicial confession ^QLS extracted after beating tiie appeUaat under fhreat, howlwer, looking to fhe fact fhat they made this statement foi: th<d version could not be acc^ coiaplabiaat Raineshwar hs] was falsely implicated m th^ the statemeat of defen.ee witil 6. On fhie ofher hand, 1| siipported the unpugaedju first tiaaie befo Court, theu: pted. It is further argued that [d asked for Rs.5,000/- from the appeUaJat. which fhe appell4at denied and because of fhis he above offaace as is evident from .ess No.l SavitriYadu. sarned eounsel for the State has eat oftrial Court. 7, I have heard learned faave perused fhe niaterial ioipugned judgm.eat ofthe |counsel for both tiie parties aad e+idenee available on record as also torial Court. 8. P.W. 1 prosecutrix has| accused gave her Jalebi aadj stated that on fhe date of mcident thcreafter took her to fhe kitchea of fhe school and fhere he ijaserted his genital organ into her 1 ^IT^T^T R-tich ^TI^T $b^i<sfr) «f^a ^•" ^ ^ ^^ '7a?^nzIR;P:r, ^•alty<i<o, f^<ni<i^< 3nif?r '^=ra? NINdl 'g^q^p*—••'•————•—•••—'——^^ 200 •^f^f' 3n^T^<iTw^fer ^" disclolsed vagina, as a result ofwhich her not to disclose this fact, fact to others. On the next felt paia and thjea she (Nani). Her grand--iGiother There was no Panchayat in exatnined her private part. consunies Uquor, however, sK he asked nionev froiai fh^ su^e^fcion that her father accused. She has stated thal niother had spotted puss has furtKer stated fh.at Court, she is statir^ for the disclosed fhese facts anvwhe^ is deposing as taught by her Salku 9. FW-8 Dr. Hemlata on 27th March 2002 noticed cn fhe person of the prosecu found ffaat her hyoiea was r was presence of puss aiid secretion of puss. She has rape were preseat as possibiiity of prosecutrix Ott hyi4ea chi<<I<yi<i1rt W^f ^ f^^l <Fn<^i< '^3lP<PT3n^T she suffered psdn. He also asked ^herefore, she did not disclose this dab^ whea she went to tsdke bath, she tbis fact to her graad-mother also examiried her private part. |the vfcllage. The lady doctor has Bhe has admitted that her fafher ^e has denied that for this purpose accused. She has denied fhe h^d asked for Rs.5,000; - from the at the tim.e of bafhiag her grand- ai|id blood m her private part. She wh|atever she is statiag before the flrst tioie and before that she never \e. She has stouUv denied fhat she feraad-niother and yaiid-father. i, who examiaed fhe prosccutrix |that there was no extemal itijury trax. On iaternal examination, she liptured/fhere was sweUing»there pressmg her stomach there was |fuirfher opiaed fhat syiaptonis of was ruptured aad fhere is be|ng raped before 3-4 days. la fhe ^s^ ^^Xf^C-22- 3TI^T'^T f<rticb 371^1 5b*ii<=b ^f^a .J \- ^? ^NId^l, ^'al<i<i<o, (c«ni<iy 3TI^T 'V^K ^INdl g^^------—-—---vg^ 200 f^^ST' ^TT^T ^RTT^R ^rff<T <0 cross-exaoimation also she was a positwe syniptom. of r^ the appeUaat made extra ju| fhat was recorded aiid ffal appetlaat as also of the witn) (PW-4) and Brijlal. <=bl^I<rt<i1i <HM<!if'? f^s;! <Pn^i< ^" ^rf^pr 3?n^r recorded by Rupdhar Jam stated fhat fhe appetlaat co: lias stuck to her claim that fhere \pe. Apart from the above evidence, Bicial confession before Paachavat |e saale bears s^gaature of the bsses Narottam (FW-3), Goverdhan 10. PW-3 Narottain has stjated fhat the appdlaiit was caUed ia fhe PaaGhayat aiid he h^d confessed his guilt, which was (PW-9). PW-9 Rudhar Jain has fessed his guUt in fhe Paachayat whereupon he recorded t|ie proceediags of Panchayat in Ex.P/8» P/4 and P/9. Simi|ar is fhe statemeat of Goverdhaa (PW-4). 11. So far as the submilssion of learned counsdl for the appdlartt that aU the witn^ses pf exfcra judicial confession have stated ia fheir depositj|on that fhey are exaniined for the first tiLme before the Courtj cross-exauiiaation by tfaie I, is concerned, the charge sheet contaias diarv statements df fhese witaesses and fhere is no defeace that the aUeged diary stafements of fhLese witoaes^es recorded duriag irwestigation, were ia fact not glvea by thc|m whereas fhe mvestigatmg officCT ia paragraph 7 of his depo^ition has categoricaUy stated fhat he recorded the diary stateD|ients of fhese witnesses, therefore, simply on the basis of fhe sllatemeats of fhese witnessCT before^ ^::^-^ /^y"':m-sf>22: ^ w^^^^.. ^ ^ ^' v&5-' 37T^T'^T f^rtich 3?1^T 9h*iich <if^a [ '3^?'^IPTI^PT, ^'a1<i<i<o, (®t<ni<i^< ^T^T tnra? *ll*l<rll ^^^•——'————•———••—•^^ 200 tN^ST' thie Court, it cannot be pre^ fhese witnesses were not discrepancy with respect t report aad F.I. R. is concerE hours whereas the proseci around 11.00 clock in tlic overwriting in the tune, iavestigation suspicious p< been put to fhe doctor ia ^unied that the diary statemeats of rdcorded earUer. So far as the other |) the tune present ia fhe iiiedical <ed, the Fm was recorded at 19/20 kfrix was examined bv the doctor night and only because fhere is |the same would not render the |Lrticularly when no question has regard, thls 12. Ia fhe Ught of cluichii^ is duly corroborated froni titj statetHCTA of her graiid-fat]|ier the cxtra judicial confessio^ Paachayat, this Court is of Court has not coiaiGiitted arliv the appetlaiit under Sectio|ti accordingly. 13. Ia fhe result, the ai| Kable to be disniissed aad is <=M^f<n<IlTi ^M<viT ^ fe^ <P*t<^i< '^^rf^R^TT^T .g evidence of fhe prosecutrix which e xaedical evideace as also jfroxu. fhe (Nana) and fiirfher considermg 1 of fhe appdlant m.ade before tlie he considcred opmion fhat fhe trial iv illegality or iafirniity in convictmg 376 of IPC and sentenciag hbn •peal bemg devoid of substance is hereby disniissed. Sd/- Dhirendra Mishra Judge