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Kulwant vs State 2 Wps/2066/2012 Shakuntala … on 8 October, 2018

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
2

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
3

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
4

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.

5

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
6

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)
7

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
8

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
9

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.
10

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
11

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

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