3TT^T^T f^'lJch 371^T ^RN^^Rfin ?^. '<s •••• ^oci ^i<^i<n^ ?R. ^Tl1y4l(i, f^^ll^y 31T^?T 'W^K 'WRW'gTOtGR^^^^^^^^'^^^^^^^^a'^^^^^^^'^'^^^^^^^ ^ 200 ^^T""""'" 3?TT^Tl'^<fT^R ^f^T HIGHCOURTOFCti CRIMINAL APPflAL N0. 2524 QL1998 APPELLANT (InJail) RESPONDENT y] Thel Present: Mrs. UsHa Chandraka] cM^f<n<fli 'RTR^f ^ ^S <^i^i< '^3TP^R3:|T^[ HATTISGARH BILASPUR Jethp: Ram S/o Anand @ Sant Ram Loha|r, aged about 20 years, R/o Gah(j>d, P.S. Palori, Distt. Raipur .M.P. ;RSUS Btate of M.P. counsel for the appellant. Mr. Neeraj Mehta, P.L.for the State/respondent. JUIDGMENT Dhirendra Mishra, J. (llthQ This criminal appeal i^ conviction and order of S.T. No. 457/97 whereby le| Baloda Bazar, District Rai^] under Sections 376 (1) ofthe) him to undergo RI for seven j in default of payment of fin^ year. 2. Case of the prosecutio| is a married lady, aged tober 2007) directed against the judgment of senjtence dated 17.6.1998 passed in ^.rned Additional Sessions Judge, |ur, has convicted the appellant Indian Penal Code and sentenced |rears, pay a fine of'Rs.2,000/-and to undergo additional RI for one ^i, in brief, is that the prosecutrK [46 years. She is a mentally handicapped lady and becau^e of this she was deserted by her in-Iaws and since then she |is residing with the complainant, IT •^ €t .-». ^oc[ T<ii^i<n1Li , ^Tl1^4l<&. ^<ni^y 3irit?r t^ra? 3TT^T^T f<4i<=b 371^T 5b^icn ^iftn ^ -<. ^'- ^Wdl ^b+lich'*"*"^*"***""""""**'*'*** SCT^ 200 ' fN^sr""""""""""""""""" 3'TT^Ti'^n^R 'Hf^T her father Tukaram (PW-3)| dung. Since 4-5 months be\ she had gone to coUect cov| oM^t<rt<il<i 'WT^ff^ (s^l ifa^K ^ ^rf^TH 31T^T She goes for collection of cow [ore lodging of the report of Ex.P/4 dung when the accused forcibly raped her. However, she di|d not disclose this incident to her parenfs. But when her pre^nancy became obvious^ on enquiiy she narrafed the incidenf fJ3 her parerits, whereupon written report 6f Ex.P/3 was lodg^d by Tukaram (PW-3) in Police Station—Palari, Distt. Raip-u^ 3. During investigation tl^e prosecutrbc was sent for medical examination to Primary Heajlth Centre, Palari where Dr. Rama Tiwari (F\¥-I) examined he|- and gave her report of Ex.P/1. After completing invesfigati^n charge sheet was filed in the Court of Additional Chief tpudicial Magistrate, Baloda Bazar and the same was receivej Judge for trial. 4. During trial the prcj Thereafter, statement of the| pleaded innocence and fd\ complainant Tukaram has and thereby obstructed his] Court after hearing counsel tl by learned Additional Sessions Isecution examined 8 witnesses. accused was recorded wherein he [tse implication and stated that |)lanted plants in front of his field way and because of this, a false report has been lodged ag4inst him. However, learned trial for the respective parties, convicted and sentenced the accu^ed/appellant as mentioned in paragraph 1 of this judgmenjt. 1 L-22 3T[^T^T f^n^ sni^T ^=iw^fi?r '3'sr ^IPTI^R, ^Ti1<i<i<o,f^<rti<iy 3Tri?r ^S^K ^IH^II W*1icb "Wl, 200 l^sy' STy^Ti^RiT^ ^Tf^T 5. Conviction of the app^ the prosecutrbc as the comi and other^villagers have nbt arid ttiey have turned hostile 6., Leamed counsel for no evidence available on re was a mentally challenged father Tukaram, who has n and has been turned hosti: perusali of statement of the she has deposed before the the questions put to understanding the same. prosecutrbc kept quiet for a disclose about the incident the fact that she was a cor lodged only after she becam< 4 of her statement it is argu' on the floor, she remained s and did nof make any effon which also shows that if?s a tibe ®bl^f<rt<flTlTITtT^f ^ fe^ <P»t^l< ^ 37f^R 3H^T llant is based on the statement of >lainant, father of the prosecutrbc, supported case of the prosecution appellanf submits that there is ^ord to show that tho prosecutrbc jlady excepf the statement of her |3t supported the prosecution case |e. She further argued that from p|rosecutrK, it would be evident that ^ourt with reasoning and answered Ijier in cross-examination after She further argued that the jperiod of five months and did not jto anyone, which is suggestive of Isenting party and tlie report was t pregnant. Referririg to paragraph ^d that after the accused threw her ^ated while he was undressing her to fl.ee from the place of incident, tase of consensual intercourse. FTfh^ ;': i22 ^TT^T^T f<4icb 311^1 ^^ii<=n ^fin ^-oc| »-qi<^|<n^ ?R, ^Tll^lti, ^wy STT^T 'VS^K WP^'?K^^'^^^^^'^^^^^^^^^^^^^^^^^^^^^^ ^ 200 fN^ar* <=bi^f<rt<11ri 'HPT^tf ^ rs^il <Pn<^i< ^T 3rf^m 3TT^T 7. On State/respondenf supported) Court. ; , ; other haijid, learned counsel for the impugned judgment of the trial 8. - I have heard leamed counsel for both the parties and have perused the impugne<p judgment as also the evidence available on record. 9. Dr. Rama Tiwari (PW-lf) has examined the prosecutrbc on 29th September 1997 arid g^ve her report of Ex.P/1. She has stated fhat at the time of carrying pregnancy of 30-3^ weeks. Thus, if we go by the report of Ex.P/1, in that cas| seven months after the incid therelafter and did not notice any injury] 10. The prosecutrbc (PW-6)| to go to collect cow dung. Tl| her on the ground and ofwhich she conceived and not disclose this fact to her village. In the cross-exan^ incident occurred during accused was grazing his statement she has stated tM ^xamination, the prosecutrbc was ? the report waslodged more than lent. She has also stated that on exam.ination she found the ^rosecutrbc to be mentally normal over her person. has stated that eveiyday she used ie accused caught her hand, threw ', mounted on her, as a result gave birth to a daughter. She did Family membersor anybody in the ination she has stated that the season of paddy when the ^attle. In paragraph 4 of her hafvesting 'at when the accused caughj: her, 1 i •^t •.^ 3TI^T^T f^iW 3^?T ^TTW?[f^T '75? ^NH^I, ^Ti1<i4i<o, f^<rtMy 3iri[?r ''^TcR 'w^rr'gpTt^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ ^ 200 •^^••--- ^TT^rl^Rn^R •^?[ S' was undressing her, she wa^ chi^(<rt<fll ^M^riT'? F^<<1 <psi^i< ^ ^if^R ^rr^r she had shoyted and resistejd the attempt. While the accused quietly sitting before him and did not try to run away frpm the^-e. II? PW-3 Tukaram is th^ complainant and father of the prpsecutrbc. He has stated 18-19 years before . Howeveij that the prosecutrbc was married , she was deserted by her in-laws as her mental eondition is nd)t normal and she is ofweak mind. He has further stated that t(ie prosecutrbc did not tell them as toiwho is responsible for hei{ pregnancy. In cross-examination also he has denied the contjents of Ex.P/3 and stated that he never submitted such gLpplic] he adfflitted his signature or] 'A' to 'A' of Ex.P/4 but deniecjl its contents. ( ^tion to the police station. Though the First Information Report from 12. The pnly question fo^ whether on the basis of malterial available on record the trial Court was justified in coi\ 13. Case of the prosecu^ consideration iri this appeal is - ^yicting the appellant by placing implicif reliance on the solit4ry testimony of the prosecutrbc? ion is thaf the prosecutrbc is a mentally challenged lady a^id therefore, she did not disclose about the incident to her pa^ents or anybody else in the village and disclosed only after h^ physical appearance. Hovfever, the prosecution has not collected any evidence in th r pregnancy was revealed by her ^ form of report of any psychiatrist ^TT^T'^T f^IWS^T '^TW^ftn 'vs 'S^ ^I^IH^I. ^Tl1'y<l<5, (®l<ni^< .^-- 317it?T ^f^K ^JH<!fll $b^l<^ "^200 fN^sr* ^Tr^ri'^Rrr^R Trf^n or psychologist to establish ^ mentally retarded lady. On f examined the proseciitrix, b4s was normal. Even ottierwisd she has answered m her inferred that she was a ment|ally ofany reliable or cogenf evi^ handicapped, her conduct ir| her parents or other village| precisely 7 months, is fatal circumstances, this Court isj Court below ought not t^ testimony of the prosecTJitrbc corroboration. 14. On the basis of judgment 6f the trial Coutt appellanf under Sections 37| aside and is accordingly, set| appellant is allowed. He is 4c be set at liberty forthwifh, if <=t»l^I<n<flliTTR^Tf ^ f^T^ <P»l^l< ^3Tp<m3TT^T [he fact that the prosecutrbc was a [he contrary, Dr. Rama Tiwari who stated that her mental condition I, looking to the manner m which ^ross-examinafiori, it can not be retarded lady. In theabsence |ence regarding her being a mental [ not disclosing the fact of rape to |-s for a period of 4-5 months or 1:0 the prosecution case. In these lof the considered opinion that the have acted upon the solitary without looking for any tforesaid discussions, impugned convicting and sentencing the |6(1) of the IPC deserves to be set |aside. The appeal preferred by the ^cquitted ofthe above charges. He tiot required in any other case. Sd/- Dhirendra Mishra Judge h FTrh^ ^: :.-"