^-^&. HICrH<^im^QlFCHKATTISGARHATflILASI»UR Crlmlaal Appeal Vto.6otMOO AppeUant !iA»lu>k;Kumar, .:. ;- - v.' '^ -:.: :• saged about 27 years, S/o;;Shri 'Bhagwat Satnami, R/o ViUags ?Murkuta, P.S. Navagarh, District Versua :Re8|M»ndent The State of Madhya Pradesh,/ ThroughStatfon House Offlicer, P.S. JNav^^rh, Distnct Dut^; ^ Mr. R.K.Jam., counsel for the appeUant Mr. M.P.S.Bhatia, Paael Lawyer for fhe rcspondent/State. JU'DiGMENT (DeUvered oti :Q8tl> Noventber. 2005^ PerVIiaTlfamait;Shrh7astaTOt.J..;:?r '•.'.••"•':,.^ "''• This appeal has becn directed a^mst^flieijudgDa.ent of convjction and order of senteace p^sed by Additiaitetl Sessions Judge, Bemetara in SeSsioas Triat No;t61^2QOO oni 29-9-2QQQ, wherebyr tUe sifipeQai^ AsS6:Q^;SScsa^^^^^ Se^^^^^W comimiftmg ofifence puaMliabiIe^aiM^ faf|J2ie^ '—i-l{S86S&S!"iSa%:'^:;^;^^ Indiaa Penal Cb^ aiijd^liaB^jBgeai;Ssei;lteBeed; -toj Aiiufei§6 Tigoicffiis .ii::ii::==p..-:- -^^~'ss"'ss r.sa?d®S;tlis;Kt;,,;^^E^E3SS3ii»Si»t£"\-'e's!'Sii.•wenf- imprisonment for 2 years and fine of Rs.200/-, in default of payment of fiue, to uude%o further rigorous imprisonment for 1 month, and r^orous unprisoiunent for 10 years aad fine of Rs.500/-, ia default of payment of fine, to undei^o furfher rigorous unprisoiunent for2 inonths respcctively with a dn-ectionto rua both the substaative sentences^coticurrently. B'; << 2. Ma1)erialfa.ctsfor4isposal6ffhisappealarefhat,onl- '.I 12-99, when victim, ^ed about 40 years, was aloue ia her house, the appeUaat entered her house and forcibly conunitted sexual intereourse vrith her. At that tiine, her brother Shashikaat alias Sushil came fixim. school and saw fh.e iacideut. The appeUant, sceing that Shashikant atias Sustul has come, left the victnn aud fled away froin fhc spof. Shashikant alias Sushil went to thc field aud narrated the story fo .Rambai. Rambalcame to her hoyse. She exainiued the interaal part of the victim who fe her daughter, She also saw thatseinen was lyiag on fhe ground aad one slipper was also left by thc appeUant. She took her daughter to Police Station Navagarh and reported fhe iacident to the PoUce. Firstlnfonnatibn Reportwas registered aad fhe inatter was iuvestigated by the Police. During fhe investigation, skirt aad uaderwear of the victim weie sdzed finm her laother Rambai. Plain earth, earth stamedwitii seiuen aad one slipper were recovered aad seized fi'om the spot. One sUpper was seized Sxim. the appellant. To prove fhe age of the victun, Kotiffari Rcgister i.e. Birth and Dcath Register was rccovered ——— '! S!.tS.3SI'fSW!iVSSl:^Sa.!iK~v''',S^.'-'. •': ;:::5F"S"; ?S ^' 3 3. The appeUaat and thc victim were scnt for inedical examination, Dr. P.K.Bajpal exaauned theappeIlantAshokKitniar. Dr. Siat. S.Rai examined the vietua. After examiuation, she also prepared sMdes fi»m.v^mal sinear offhe victim aud sent fhe slides to fhe PoUce for chenucal exainination. For confirmation of age, ossifieation test was conducted by Dr. A.K.Sahu. Witaesses wcrc examined undcr Section 161 of the Code of Cruninal Procedure. Soil recovered finin the spot, uuderwear and skirt beloaging to the <f. victim., ,one uiidcrwear beloiigmg to the appeUaat and sUdcs prepared by niedical officer fi?oni fhe vagiaal siaear of the victim, coUected by IIle Policfe during the uivestigation wcre sent to Forensic Seience Laboratoiy, Raipur for examination. On exatninatiou, except on thc earth, noseinen or spemaatozoa was foimd on ofher articles. After conipletion offhe invest^ation, chai^e-sheet was led ia the Court of Judicifll Magistrate First Class, Benietara, who conunitted the case to sessions for trial. 4. Charges under Sections 450 aad 376(2) of the Indian Penal Code were {tsacaed a^asnst fhe appeUant, read over and explamcd to him, who abjured fhe guflt. During thc trial, his defence was fhat he is iunocent and because of uumical relation he has been falsely implicated in the casc. /• 5. The victim is a dcaf, dumb and bUnd, This fect has riot been chaBenged by the appeUaat as also her age has also not been subject niatter of chsitlenge during the arguiuents. From llie evidence of Rambai, .P.W.-l, the laottier of fhe victim, SliashiJiarit alias SusNl, P.W.-2, herbrotihfir, and Gendlal, P.W.-3, herfatheity it is estabUshed that the victnn is deaf, dumb bEad. AU tliese ..t .^aESi^^S?-'' 31»--ultEI!iiSS^i i!!«ifetti^BB!;;,-^S;-:;:^i@^-;^i lF'•'•.a!. witoesses have also givcn evideuce to suppprt the a^e of the victun to be atouad 10 years. The Kotwar Garibdas, P.W.-7 has provcd seizure of Birth aad Death Registcr showuig fh.e entty regarding birfh.of the victuu, aad accordiag to fhat Register, the datc ofbirth is 1-10-1989. It nieaaS, on fhe date of uicident, according to fhe Birth ahd Death Register, the victim. was ofthe ^e-between 10 to 11 years. Dr. A.K.Sahu, on fhe basis of ossiGcatfon test, has deposed in his evidence fhat, fhe age of fh.e girl was around 10 "•f. years, Therefore, finm. aB thesc'evidence, itwas cstablished fhat, on fhe date ofincldent, her age was around 10 years. 6. Leamed counsel for the app&Uaat contended fhat there is no evidence to support penetration or sexual uiten»urseby fhe appeUant with the victitm as reqiured under Section375 of the Indian Penal Code. He further contended that fhe victun has 1 neither been exainiued durfng fhe iuvestigation nor has been cxaminedin fhe Court The only cvidence relied on by the Gourt is fhe evtdeuce of Shashikant alias SushU, P.W.-2, who, althoi^h in the Court h^ stated that he saw thc appeBant coinnuttm.g rape on fhe victim yet ia his stateiaent before fhe Policc he did not teU. fhc said stoiy, therefore, therc beiag material omission m his stateinent recorded under Section 161 offhe Code of Criminal Proccdure, his statenient made before thc Court regardiug rape neifher can be. beUeved nor caa be accepted to be true. Other witaesses have not witaessed fhe iu.cident, Leamed counsel for the appeUaat further ^ • • ' . . . . •; . contendcd fhaf, to support iatercourse or rape, inedlcal evidence is 1 negative and fhe report ofcheinical exaniiner also does not|support the factof iatercourse. On the other hand, leamed <?ofuiisel fortfihe ^ Slate contended fhat alfhough, the victim beiag deaf, duinb aad bliad could not be examiaed by the Police and by the Court yet in fhe soU reeovered and seized fcoin fhe spot seiaen has beca foiuid, and witaess Shashikant alias SushU, P.W.-2 although ia lus stetement under Section 1Q1 ofthe Code ofCriaiiaal Procedure did not disclose fhe fact fhat he witnessed the inddent of-rape yet in thc Court supported fhe stoiy of rape on oatti, theiefore, leamed Court below correctly held the appeUaat guflly for conmiittuig the offence <(. Ofrape and house-trespass. 7. Froin fhe impugned judgmeat it is apparent that, the victim has not been examined by the PoUce dttring fhc iavcstigatiou aud the Court also did not examuie her as shc was deaf, dumb aad blind and was uuable to give evidence. Therefore, fhe CT'idence of the victnn is not available to support fhe intercourse. The oiily witness Shashikaut alias Suslul, P.W.-2 is said to be an eyewitness who witaessed the iacident. Shashikaat aUas Sushil, P.W.-2, ia his stateinent, has deposed fhat, whea he came flx>mschool and entered his house, he saw the appellant conunittiag rape on tus sister, and fhe appeBant, seeiag him, fkd away. His statenient before the PoU.cc is Ex.D-1. In Ex.D-1, he did not state that he saw the appeBant committuig rape on his sister, but he simply stated ihatwhen he entered his house, he saw the appcllaiit jiunpiag Gxas. fhe waU. and his sister was fying oa fhe groimd. If fhe witness had seen the appeUant conuaittiug rape, he should have stated the same J • . ••' beforc fhe PoUce, fh.erefore, Uaving suchinaterial conteadictioh, KQw far hisstatemient befiare fhe Coiutcau be accepted to'be true fhat he saw fhe appetlaat conunitting rape on hissister.;. L^artted; ti-ial 6 Court also, in its judgm.ent, has held that aa important omlssion is fhere in the Police statement. iij; BS. 8. Dr. P.K-Bajpai, P.W.-6, Who exanuiied ffac appellaat, has deposed in bss slatement fhat, on examination, he fouud no extemal iajury on fhe body of fh& appeUant and also no mjuiy was found on hjs fli%h or perennial region. Dr, Siut. S.Rai, P.W.-14 has examined the victiin. Shc depc^ed that, no iajuiy was found on hcr body, thigh or on her perciuiial region. She also deposed that, on iatemal examination, she found the vayna. healftiy aad no iujuiy w^ found inslde it. Slight bleediag was therc. She was of tfae opinion that, it was because of fhe monfhly period i.e, nienstruation. ^ < 9. Ex.P-lSte the report ofchemical escaminer. Cheinleal examiner did not find seinen or speniiatozoa on the slide prepared by Dr. Snit S.Rai, P.W.-14 fi?oin fhe vagmal sjnear offhe victiin aad also on her clofhes i.e. uaderwear aad sku-t. Even on fhe itaderwear of fhe appeUant, semen or spennatosxia was aot present Theofher evidence coUected wcre tte evideace ofiaotb.er, &ther aad ofhers, who came to know about thc incjdent fix»iaothers. 10. To support iatercourse or penetration, the evKience of the victun is hot available and other evideiice i.e. medical evidence and reportof cheraical. examiner also do not support the same arid fhe evidence of Shashikaut ali^ Suslul, P.W.-2 on material pamt is conteadictoiy. On discrepancies, the Isew is settled aow, nioiiiall discrepanfies in evideiice are fhose wluch are dye tp aonB!a].eHB^i;S[| 7 ofobservation, aormal error ofineiaoiy due to lapse oftiiae, due to mentaldisposition such as shock aad horror at fhe time of oceurrence aad these are airoays there. Material discrepaacies are those which are not normal and not expected of a normal person. Whilc normal discrepancies do not corrode fhe credibflity of a wifaless, niaterial discregaacies do so, hencc fhe evidence of Shashikant alias Sushil, P.W.-2 cannot be relied on for recordiug fhat tlie appellaat committed rape ou the victim. 11. There is no reliable evidencc to establish fhat intercoiirse or penetration on the victiin has been conuaitted by fhe appeUant or anybody, therefore, holdiug the appeUant guUly for coinmittmg rape on the victim. is without reliablc evidence, hence, the findiug of fhe Coui-t below, holdiug the appeUant guilly for comxnitting the ofifcnce of rape, js erroneous aad liable to be set asidc. 12. The appeUant was found inside the house of Ramtoai, P.W.-l, who, on arrival of Shashikaat aUas Suslul, P.W.-2, fled away fherefisoni by jumping fhe waU, is established fixim. the evidence of Shashikaat alias Suslul, P.W.-2, but the appdlaat entered thc house for commlttmg the ofFence of rape, has not beeu proved, therefore, so far house-trespass is conceraed, the appellant is guOly for it and deserves to be puaished uader Secdoa 448 of fhc Indjan Peiial Code, but cauqot be held guilty for committing the offence punlshable under Section 450 of the Indiaa Peaal Code. W3K 's^& ^^ ?i^ •ll1r:—r ..—iuaiuaaKKfrtsBneoiaam* ll£l; K^i^ •S.Singh .8 13. In the result, fhe appeal is pardy aUowed. Conviction and sentence passed by the trial Court uuder Sections 450 aad 376(2) offhe Indian Penal Codc are setasidc. Instead, fhe appeUaut is held guilty for conunittiag the offence pitnishable under Section 448 of the Indiaa Penal Code and is sentenced to undei^o rigorous imprisoiunent for 1 year, and to pay a fine of Rs_..200/-, and in default of payinent of fiae, to undei^o additional r4;orous unpr^ortmeut for 1 nionfh. Sd/- V.K.Shrivastava Judge 08-11-2003 ^.-.ii :1!;L a jr