AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1952 of 1999
Judgment Reserved on : 12.7.2018
Judgment Delivered on : 8.10.2018
Kulwant, son of Ramdas Vaishnav, aged about 21 years, resident of Ghotia,
Police Station Dondi, District Durg, M.P. (now Chhattisgarh)
—- Appellant
versus
State of M.P. (now Chhattisgarh), through Police Station Dondi, District Durg
— Respondent
——————————————————————————————————
For Appellant : Smt. Renu Kochar, Advocate
For Respondent/State : Shri Arvind Shukla, Panel Lawyer
——————————————————————————————————
Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 20.7.1999
passed by the Additional Sessions Judge, Balod, District Durg in
Sessions Trial No.90 of 1999 convicting and sentencing the
Appellant as under:
Conviction Sentence
Under Section 376(1) of the Rigorous Imprisonment for
Indian Penal Code 10 years
Under Section 450 of the Rigorous Imprisonment for
Indian Penal Code 10 years
The sentences are directed
to run concurrently
2. Facts of the case, in brief, are that the prosecutrix (PW1), a girl
aged about 16 years, was alone at her house. She was residing
with her elder sister Vimlabai (PW2) and Vimlabai’s husband
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Udhoram (PW3). On 24.11.1998, Vimlabai had gone to the field
and Udhoram had gone to Balod to purchase some articles. At
that time, the prosecutrix was alone at the house. At that time, the
Appellant was distributing slips to the voters regarding election.
Allegedly, the Appellant came to the house of the prosecutrix and
gave her a slip. Thereafter, he caught her hand, took her inside the
room and threw her down on a cot. She tried to shout, but he
inserted a bed-sheet in her mouth and threatened her. Thereafter,
he committed forcible sexual intercourse with her. She received
injuries on her person and blood also oozed out. Thereafter, the
Appellant fled from there. Later on, Vimlabai and Udhoram
returned home. She told them about the incident. Udhoram went
to the house of the Appellant and complained about the incident to
the father of the Appellant. Allegedly, at that time, the Appellant
accepted his guilt. First Information Report (Ex.P1) was lodged by
the prosecutrix. Her sameez and skirt were seized vide Ex.P2.
She was medically examined by Dr. Shashi Cladius (PW9). Her
report is Ex.P10A in which she did not find any bodily injury. She
found that hymen of the prosecutrix was old ruptured. Her vagina
was admitting 2 fingers easily. She was habitual to sexual
intercourse. No definite opinion could be given regarding recent
sexual intercourse with her. Full-pant and underwear of the
Appellant were seized vide Ex.P7. The Appellant was examined by
Dr. L.L. Markande (PW5). His report is Ex.P8 in which he found
that the Appellant was capable to perform sexual intercourse. He
also found a lacerated wound on the private part of the Appellant.
2 abrasions were also found on the penis of the Appellant. Stains
of blood were also present there. He also examined the
underwear and full-pant of the Appellant. His report in this regard
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is Ex.P9 in which he found blood like stains on those 2 clothes.
From the room in which the alleged incident had taken place, a
cover of kathari (bed-sheet) was seized vide Ex.P5. The kathari,
the sameez and skirt were examined by Dr. Shashi Cladius (PW9).
Her reports in this regard are Ex.P11A and P12A in which she
found blood like stains on those clothes. The seized articles were
sent to the Forensic Science Laboratory for chemical examination.
The FSL report is Ex.P13. Statements of witnesses were recorded
under Section 161 of the Code of Criminal Procedure. On
completion of the investigation, a charge-sheet was filed against
the Appellant for offence punishable under Sections 450 and 376
of the Indian Penal Code. Charges were framed against him under
Sections 450 and 376(1) of the Indian Penal Code.
3. To rope in the Appellant, the prosecution examined as many as 9
witnesses. Statement of the Appellant was also recorded under
Section 313 Cr.P.C. in which he denied the guilt and pleaded
innocence. No witness has been examined in his defence.
4. The Trial Court convicted and sentenced the Appellant as
mentioned in the first paragraph of this judgment. Hence, this
appeal.
5. Learned Counsel appearing for the Appellant argued that the
Appellant has been falsely implicated in the case due to political
rivalry. The incident took place on 24.11.1998 at about 12 noon.
FIR was lodged on the same day at 4:15 p.m. Delay in lodging the
FIR has not been properly explained. As stated by the prosecutrix,
she had suffered excessive bleeding. Blood had also fallen on her
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clothes and the kathari. But, on medical examination, no injury
was found on any part of her body and she was found habitual to
sexual intercourse and her hymen was old ruptured. The
statement of the prosecutrix is not natural. There are material
contradictions and omissions in her statement. Therefore, her
statement is not reliable. Even if the statement of the prosecutrix is
taken as it is, she seems to be a consenting party. There was a
love relation between her and the Appellant. Her age is not proved
to be below 16 years. Therefore, no offence is made out against
the Appellant and he deserves to be acquitted of the charges
framed against him.
6. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment of conviction and sentence. He
submitted that the FIR was promptly lodged and there was no
delay in lodging thereof. The prosecutrix has remained firm during
her cross-examination about the incident. Immediately after the
incident, she told about it to her sister. No previous enmity has
been proved. Immediately after the incident when Udhoram (PW3)
went to the house of the Appellant, the Appellant, at that time, had
admitted his guilt. It has not been explained by the Appellant that if
the prosecutrix was a consenting party then why did she report the
matter. Injuries were also suffered by the Appellant on his penis,
but he has not explained the same that how those injuries were
suffered by him. Thus, the offence alleged against the Appellant
has duly been proved by the prosecution.
7. I have heard Learned Counsel appearing for the parties and
perused the record minutely.
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8. With regard to the age of the prosecutrix, the prosecutrix (PW1), in
her Court statement, has stated that she born in the year 1984 and
thus, she has stated her age to be 14 years. As stated by
Udhoram (PW3), her age was 15 years. The prosecutrix has
admitted that she has stated her age on the basis of the date of
birth mentioned in her school mark-sheet. K.R. Kanwar (PW7),
Headmaster of the school has stated on the basis of the school
admission register (Pravesh Panji) that on 12.7.1996, the
prosecutrix was admitted in the school in 7 th Standard. Earlier she
was admitted in the school situated at Karhi Bhadar and on the
basis of the transfer certificate issued by that school, they had
admitted her in their school and her date of birth was entered as
7.2.1984. In paragraph 3 of his cross-examination, he has
admitted that he did not know on what basis the date of birth of the
prosecutrix was recorded in the school where she was admitted in
1st Standard.
9. Dr. Shashi Cladius (PW9), who medically examined the
prosecutrix, has stated that in her report (Ex.P10A), she had
opined that the age of the prosecutrix was 15 to 17 years, however
she had advised for ossification test of the prosecutrix. But, no
ossification test of the prosecutrix was conducted by the
prosecution. From the above, it is clear that apart from the mark-
sheet, no other document regarding age or date of birth is
available. Parents of the prosecutrix have also not been
examined. Vimlabai (PW2), sister of the prosecutrix has also not
stated date of birth of the prosecutrix. On what basis the date of
birth of the prosecutrix was recorded in the school at the time of
admission of the prosecutrix has also not been established and
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who made the entry of date of birth of the prosecutrix has also not
been examined by the prosecution. As opined by Dr. Shashi
Cladius (PW9), age of the prosecutrix was 15 to 17 years. Even
after her advice, no ossification test of the prosecutrix was
conducted by the prosecution. Therefore, from the evidence
adduced by the prosecution, age of the prosecutrix was below 16
years is not established.
10. With regard to the alleged incident, the case of the prosecution is
based on the statements of the prosecutrix (PW1), Vimlabai (PW2),
sister of the prosecutrix and Udhoram (PW3), jija (brother-in-law) of
the prosecutrix.
11. The prosecutrix (PW1) has deposed that on the date of incident at
about 12 noon, when she was alone at her house, the Appellant
came there and knocked the door of the house. She opened the
door. He asked her who is present at the house. She told him that
she was alone. He had come to give voter-slip for the election.
After giving her the voter-slip, he took her inside the room. He
caused her to fall down on a cot. He gagged her mouth with a
bed-sheet. He removed her underwear. When she tried to shout,
he told her that he will press her neck. Therefore, due to fear, she
did not shout. She has further stated that he forcibly committed
sexual intercourse with her. She smeared with blood. The clothes
were also tainted with blood. Thereafter, the Appellant went way
from there. At about 1:00 p.m., her jija Udhoram (PW3) came
there. She, weeping, opened the door of the house. At that time,
she did not tell him anything about the incident. Thereafter,
Udhoram returned. At about 1:30 p.m., her sister Vimlalbai (PW2)
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reached home. She told her about the incident. In cross-
examination, she has stated that she was smeared with blood,
therefore, she did not come out and told about the incident to
anyone. She also did not tell about the incident to the wife of her
neighbour Khilawan. In paragraph 21, she has stated that due to
election, the police party had come to the village, but she did not
tell them anything about the incident. In paragraph 17, she has
stated that no sexual intercourse was done with her before the
incident.
12. Vimlabai (PW2), sister of the prosecutrix has stated that she had
gone to the agricultural field. When she returned home at about
1:30 p.m., the prosecutrix told her about the incident. She saw that
bed was smeared with blood. Sameez and skirt of the prosecutrix
were also smeared with blood. She has further stated that she had
told about the incident to her husband Udhoram (PW3). Her
husband, searching for the Appellant, went out of the house. The
Appellant was found at the house of Domar. The Appellant
admitted his guilt in front of all the persons present there.
13. Udhoram (PW3), jija (brother-in-law) of the prosecutrix has stated
that when he returned home at about 1:15 p.m., his wife Vimlabai
(PW2) told him that the Appellant had entered the house and
committed rape with the prosecutrix. Then he went to the parents
of the Appellant to tell them about the incident. He told the parents
of the Appellant about the incident. The Appellant admitted his guilt
and apologised for the guilt by touching his feet.
14. Head Constable Kapishwar Singh (PW6) is the witness who lodged
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the FIR (Ex.P1) and seized sameez and skirt of the prosecutrix
vide Ex.P2 in which blood stains were present.
15. Kotwar Mayaram (PW4) has stated that in his presence vide
seizure memo (Ex.P2), sameez and skirt of the prosecutrix, which
were smeared with blood stains, were seized and kathari, which
was also smeared with blood stains, was seized vide Ex.P5.
16. The seized sameez, skirt and kathari were examined by Dr. Shashi
Cladius (PW9). She found 11 blood like spots on the skirt, 24
blood like spots on the sameez and 6-7 blood like spots on the
kathari. Her reports are Ex.P11A and P12A. She has admitted the
fact that trace of the blood stains could be determined whether
they were of human blood or of any animal blood by FSL
examination. The FSL report (Ex.P13) is positive in respect of
sameez of the prosecutrix, but with regard to other clothes, the
report is negative.
17. Dr. Shashi Cladius (PW9) also examined the prosecutrix on
25.11.1998. She has stated that her report is Ex.P10A in which
she found that the prosecutrix had not suffered any injury on her
body nor on her private part. No swelling or injury or redness was
present on the private parts labia majora or labia minora. Hymen
was old ruptured. 2 fingers were easily being inserted into the
vagina of the prosecutrix. The prosecutrix was found to be habitual
to sexual intercourse. No definite opinion could be given regarding
recent sexual intercourse with her. In paragraph 8, she has
categorically stated that the prosecutrix was habitual to sexual
intercourse and she had already undergone sexual intercourse
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many times. No injury was found on her private part, either internal
or external.
18. Station House Officer T.R. Kanwar (PW8) was the Investigating
Officer of the offence in question. He has stated that he
investigated into the offence and during the investigation, he seized
kathari and mark-sheet vide Ex.P5. He prepared spot-map
(Ex.P3). He also seized pant and underwear of the Appellant vide
Ex.P7 and recorded statements of witnesses under Section 161 of
the Code of Criminal Procedure.
19. On minute examination of the above evidence, it is clear that
though the prosecutrix has stated that the Appellant had committed
rape with her after entering her house, her statement does not
inspire confidence of this Court because as stated by her, she did
not know the Appellant from before. The Appellant had come to
her house for giving voter-slip in respect of election. The incident
took place at about 12 noon. In these circumstances, an unknown
person would enter the house of the prosecutrix and commit rape
with her appears to be suspicious. Furthermore, as stated by the
prosecutrix, no sexual intercourse was done with her before the
incident. When the Appellant committed rape with her, she
suffered excessive bleeding and blood smeared over the kathari
spread over the bed as also over her sameez and skirt. The sister
and brother-in-law of the prosecutrix have also supported the
version of the prosecutrix. Dr. Shashi Cladius (PW9), who
examined the skirt, sameez and kathari and gave her reports
Ex.P11A and P12A, found 11 blood like spots on the skirt, 24 blood
like spots on the sameez and 6-7 blood like spots on the kathari.
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But, as stated by Dr. Shashi Cladius (PW9), in her report Ex.P10A,
she found the prosecutrix to be habitual to sexual intercourse. She
did not find any injury over the private part of the prosecutrix either
internal or external nor did she find any injury over any other part of
her body. In these circumstances, if blood stains were found on
the kathari, skirt and sameez, it does not appear to be natural.
There is possibility that the prosecutrix and her sister and brother-
in-law, with an intent to falsely implicate the Appellant, would have
smeared the said 3 clothes with blood stains.
20. With regard to extra judicial confession of the Appellant, though
Vimlabai (PW2), sister of the prosecutrix and Udhoram (PW3),
brother-in-law of the prosecutrix have stated that when Udhoram
had gone to the house of the Appellant, at that time, the Appellant,
in presence of his parents and other villagers, had told that ” gka eSaus
xyrh dh gS” and he had apologised by falling down on the feet of
Udhoram, who were the villagers present at that time, their names
have not been disclosed by Udhoram nor has the prosecution
examined them. Merely because the Appellant admitted that he
had committed mistake, it cannot be treated to be his extra judicial
confession admitting commission of rape by him with the
prosecutrix. Therefore, this confessional statement also does not
support the case of the prosecution. From the above discussion, it
is clear that the prosecution has not been able to prove its case
beyond reasonable doubt. Therefore, the Appellant is entitled to
get benefit of doubt.
21. Consequently, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. The Appellant is acquitted of
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the charges framed against him.
22. It is reported that the Appellant is on bail. His bail bonds shall
continue for a further period of six months from today in terms of
the provisions contained in Section 437A of the Code of Criminal
Procedure.
23. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal