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2010 DIGILAW 7 (CHH)

RAMADHIN v. STATE OF M. P.

2010-01-12

DHIRENDRA MISHRA, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT As per Hon'ble Shri Manindra Mohan Shrivastava, J. :- 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th April, 1991 passed in S.T. No.238/1988, whereby the learned 5th Additional Sessions Judge, Raipur, has convicted the appellant under Section 376 of the IPC and sentenced him to undergo life imprisonment. 2. Case of the prosecution, in brief, is that on 15.7.1988, the prosecutrix had gone to field outside the village to attend the call of nature along with her friends Malti Kewat and Janki Bai and while returning was intercepted by the appellant and his associate Seuk Kewat. It is the case of the prosecution that the appellant caught hold of the hands of the prosecutrix, dragged her, removed her clothes and committed sexual intercourse with her. After some time Risau, brother of Malti, Shobha, Dhanraj and Dhansingh arrived at the spot, upon which, the appellant ran away. Thereafter, the prosecutrix came back to village along with Malta, Risau and narrated the incident to village residents namely Siyaram and Budhram and village Panchayat was convened, wherein elders advised to lodge report to the police station. Thereafter the prosecutrix, Malti and her brother went to police station and lodged the report of the incident. 3. First information report of Ex.P-1 was lodged in the Police Station Atjuni on 17.7.1988 at 14:05 hrs. by the prosecutrix reporting alleged commission of offence. Thereafter on that very day, petticoat and saree of the prosecutrix alleged to contain stains were seized by the police from the possession of the prosecutrix vide Ex.P-2. Police further seized underwear from the appellant on 18.7.1988 vide Ex.P-3 which alleged to contain seminal stains. Vide Ex.P-4 A, police seized a sealed slide containing vaginal secretion of the prosecutrix on 17.7.1988. Memorandum of Ex.P-5 dated 17.7.1988 was sent to the S.D.O., Dhamtari for grant of permission for examination of private parts of the prosecutrix and the permission was obtained. After obtaining the consent of Bhagwan, father of the prosecutrix vide Ex.P-6, the prosecutrix was sent for medical examination to Dr. S. Singhal (P.W.2) under memo of Ex.P-7 along with Police Constable Ramdulal of Police Station -Arjuni. After examination, doctor gave her report vide Ex.P-3. In her report, doctor stated her age appearing to be above 17 years; secondary sex character were found well developed; pubic hair were also present. S. Singhal (P.W.2) under memo of Ex.P-7 along with Police Constable Ramdulal of Police Station -Arjuni. After examination, doctor gave her report vide Ex.P-3. In her report, doctor stated her age appearing to be above 17 years; secondary sex character were found well developed; pubic hair were also present. Doctor further stated no marks of external injury on her chest or back. The report further stated that vagina admitted one finger with resistance and hymen was found to be intact; no marks of external injury over private parts were found nor stains of blood or seminal were seen. It was also stated that there was no matting of hair. In the opinion, regarding age, doctor stated prosecutrix to be 17 or 18 years of age and for definite opinion advised that it be referred to Radiologist. Regarding sexual intercourse, it was stated that she was not used to sexual intercourse. Vaginal slides were prepared, packed and sealed. Undergarments were also examined, packed & sealed and were handed over for chemical examination. 4. The appellant was also sent for medical examination on 18.7.1988 vide Ex.P-8 to Dr. O.S. Bajpai (P.W.3), who examined the appellant and prepared his report vide Ex.P-4. Doctor in his report stated amongst other things that no marks of struggle e.g. bruise, scratches and teeth bite were found on his body, chest, thigh or over genital parts and no clotting of pubic hair due to elimination of semen was found; no presence of hair on the body of appellant was found, no presence of abrasion, laceration on genital organ were found. Further, the report stated that no evidence of infection was found. It was opined that the accused is capable of performing sexual intercourse. It was also stated that no blood or seminal stains were seen on the underwear brought for its examination. The same was again sealed and handed over to the constable for onward chemical exan1ination. 5. For ascertaining the age of the prosecutrix, the prosecutrix was sent for radiological examination under memo of Ex.P-9. Report of the Radiologist; Ex.P-12 stated the age of the prosecutrix about 16 to 17 years. 6. The same was again sealed and handed over to the constable for onward chemical exan1ination. 5. For ascertaining the age of the prosecutrix, the prosecutrix was sent for radiological examination under memo of Ex.P-9. Report of the Radiologist; Ex.P-12 stated the age of the prosecutrix about 16 to 17 years. 6. After completing investigation, Police of Police Station -Arjuni filed charge sheet in the Court of Judicial Magistrate First Class, Dhamtari alleging commission of offence under Section 376 of the IPC, who in turn committed the case to the Court of Sessions Judge, Raipur which was registered as S.T. No.238/1988 and the same was received on transfer by the 5th Additional Sessions Judge Raipur for trial. 7. The learned trial Court framed charge against the appellant for having committed offence of rape on the prosecutrix thereby committing offence under Section 376 of the IPC. Appellant abjured his guilt. 8. In order to bring home the guilt of the appellant, the prosecution examined in all 12 witnesses. Appellant was examined by the learned trial Court and in his examination under Section 313 of the Cr.P.C., he denied having committed any offence and pleaded innocence. The defence of the appellant has been that because of the group rivalry amongst Dhimar and Gond community in the village, he has been falsely implicated in the crime in question. 9. The learned trial Court relying upon the ossification test of the prosecutrix as also medical report of Dr. S Singhal (P. W.2) held the prosecutrix to be a major being age of 18 to 19 years. The learned trial Court vide impugned judgment of conviction and sentence held that the prosecution has proved that the appellant has committed sexual intercourse with the prosecutrix against her wishes and thereby committed offence under Section 376 of the IPC. Such finding of guilt has been recorded by the trial Court relying mainly on the testimony of the prosecutrix, Malti (P.W.-4), Risau (P.W.6), Chamru (P.W.7), Dhansing (P.W.8) and Shobharam (P.W.9). The learned trial Court observing that there is no discrepancy in the testimony of the prosecutrix and in the first information report lodged by her, has recorded a finding that merely because no internal or external injury was found on the body of the prosecutrix and even though hymen was not found torn, it could not be said that no offence was committed. It was also recorded that even though presence of spermatozoa was not found in the chemical examination of articles i.e. saree and petticoat, no inference can be drawn that sexual intercourse was not committed. The defence version of the appellant as stated by solitary defence witness of Vishveshwar (D.W.1), has also been disbelieved. 10. Learned counsel for the appellant vehemently argued that the learned trial Court has committed gross illegality in holding the appellant guilty by relying upon the testimony of prosecutrix. Evidence of the Prosecutrix (P.W.1) does not at all inspire confidence and is not trustworthy. He further submits that the manner in which the offence is said to have been committed and prosecutrix was dragged, resistance offered by her, forcefully sexual intercourse committed, oozing of blood, secretion of semen and fall on clothes are not at all supported by medical evidence brought on record by the prosecution. He further submits that the entire Story narrated by the prosecutrix in her testimony is false, because if the same is to be accepted, it must have resulted not only in the injuries on external parts of the body of the prosecutrix but also on her private parts including containing blood stains & internal and external vaginal injuries, existence of seminal stains on clothes. He argues that from the testimony of Dr. S. Singhal (P.W.2) and the defence of the appellant, it is clear that the appellant has been falsely implicated in the offence. The prosecution has failed to prove its case beyond reasonable doubt inasmuch as in addition to above material discrepancy whereby medical evidence does not at all support the case of the prosecution, FIR itself has been lodged after delay and her hymen was not found tom, version of other witnesses being contradictory. In totality, the prosecution has failed to prove its case and the conviction on the basis of such shaky version is illegal and could not be sustained in the eye of law and the accused is entitled to be acquitted. 11. On the other hand, learned counsel for the State has supported the impugned judgment 12. We have carefully perused the impugned judgment passed by the learned trial Court and entire records of the case. 13. 11. On the other hand, learned counsel for the State has supported the impugned judgment 12. We have carefully perused the impugned judgment passed by the learned trial Court and entire records of the case. 13. Prosecutrix (P.W.I) in her deposition before the Court stated that when she had gone to field outside the village along with Malti and Janki to attend the call of nature and while returning after ease, was caught hold by the appellant. In spite of resistance offered, the appellant did not release her, on which, the prosecutrix asked Janki to go to village and inform the villagers. She also deposed that the appellant dragged her to Bayara, which was about 200 yards away. Bayara belonged to Rajau Kisan. She further deposed that in the Bayara, she was thrown and sexual intercourse was committed. Though she resisted, her hands and legs were pushed behind and her mouth was also gagged. After intercourse, seminal discretion fell on her clothes and on the floor. She further deposed that when she raised hue and cry, Risau, Sobharam, Dhansing and Dhanraj came in and the appellant was caught in the Bayara and was taken to village. She states that when the appellant was caught, he was committing sexual intercourse with her. She further deposes that after being brought to village, the incident was told to village Sarpanch- Siyaram and village Patel - Budhram and on that very day, a village Panchayat was convened and on the next date also such sitting was convened. It has been deposed that in the said meeting, the prosecutrix and the appellant were present, wherein she had narrated the act of the appellant, at which Sarpanch Siyaram and Patel-Bhudram stated that they are helpless and advised them to lodge the report in the police station. Prosecutrix also states that she did not know the accused but came to know about his name in the sitting of village Panchayat that his name is Ramadhin and is resident of Chhinbharri. In the cross-examination, the prosecutrix has stated that she was thrown She further deposed that when she fell, she received injuries on her hands, elbow and also on her head. She also stated that the sexual intercourse was painful at the time of insertion of male organ, which lid to oozing of blood from her private parts and it also wetted her clothes. She also stated that the sexual intercourse was painful at the time of insertion of male organ, which lid to oozing of blood from her private parts and it also wetted her clothes. She has also stated that intercourse continued for 15-20 minutes. The prosecutrix deposes that on the date of incident itself she had gone to the police station along with her father and brother of her mend and her thumb impression was obtained, whereas the incident was narrated by the brother of her friend. Later on, she states that she is unable to say that the report was lodged two days thereafter. 14. Dr. S. Singhal (P.W.2) who examined the prosecutrix when she was brought to her after the alleged incident, has stated that the vagina admitted one finger with difficulty. Testifying her report of Ex.P-3, she has stated that neither any blood stain was found nor any kind of injury was found on the private parts of the prosecutrix. While depositing that the prosecutrix was not habitual of sexual intercourse, it has been stated that no definite opinion regarding sexual intercourse can be given. In cross-examination, she has deposed that hymen was found intact. She has further deposed that in case where resistance is offered at the time of forcible sexual intercourse and an attempt is made to save from the rape, a person may sustain injuries. She has very clearly stated that she did not find any injury whatsoever, on the person of the prosecutrix. 15. Dr. O.S. Bajpayi (P.W.3), who has exan1ined the appellant, stated that no teeth bite or injury of any other kind evidencing any scuffle was found on the person of the appellant. It has been deposed that no clotting was found on pubic hair. He has also deposed that no abrasion or scratch or any other kind of injury was found on the genital parts of the appellant. No seminal stains or blood marks were found on the underwear seized from the accused. In cross-examination, he has stated that if rape is committed and the victim makes efforts to save herself from the act, it is quite natural that she may receive injury. 16. From the testimony of Dr. No seminal stains or blood marks were found on the underwear seized from the accused. In cross-examination, he has stated that if rape is committed and the victim makes efforts to save herself from the act, it is quite natural that she may receive injury. 16. From the testimony of Dr. S. Singhal (P.W.2), it is clearly revealed that the prosecutrix did not receive any injury whatsoever either on any part of her body or in her private parts, while the prosecutrix deposed that she was dragged for about 200 yards forcefully by the appellant, thrown in the Bayara and sexual intercourse was committed on her against her wishes which she resisted. Thus the Medical evidence completely falsifies the version of the prosecutrix. Prosecutrix has stated in her cross-examination that the penetration was very painful and blood started oozing out, however this version of the prosecutrix is not at all supported from the medical evidence inasmuch as even slightest injury, abrasion or rashes have not been found over private parts of the prosecutrix and there is total absence of any injury on the vaginal walls. In the light of what has been stated by the lady doctor that the vagina admits one finger with difficulty, it is difficult to accept the version of prosecutrix that sexual intercourse was committed on her in the manner described by her in her testimony while it is not at all supported by the medical evidence. 17. There is no cogent or reliable evidence on record to prove and establish that either blood or seminal stains or spermatozoa was found on the wearing apparels of the prosecutrix. Further even discharge of vaginal slides seized during the course of investigation and sent for chemical examination were also not found to contain any spermatozoa so as to establish the case of sexual intercourse. There is also no cogent reliable evidence on record to establish presence of blood stains, vaginal discharge or seminal stains on undergarments of the appellant, which was seized by the police during investigation. Dr. O.S. Bajpyai (P.W.3) has also deposed that no injury was found on any part of body of the appellant nor there were any bruises, scratches on the private part and genital organ of the appellant. 18. Dr. O.S. Bajpyai (P.W.3) has also deposed that no injury was found on any part of body of the appellant nor there were any bruises, scratches on the private part and genital organ of the appellant. 18. Touchstone for recording the finding of conviction in a rape case is that- the testimony of the prosecutrix must be reliable and inspire confidence; it should be worthy of credit and it should not suffer from basic infirmity and the probability factors should also not render it untrustworthy of credence. The medical evidence as has come in the present case completely belies the testimony of the prosecutrix and renders entire prosecution case doubtful. 19. The appellant/accused in his examination under Section 313 of Cr.P.C. has stated that he has been falsely implicated in the crime because of group rivalry amongst Dhimar and Gond community. In his defence he has examined Vishweshwar (D.W.1), who has deposed that the prosecution witnesses had inimical relations with the appellant, as the appellant was working in the department of fisheries and very often used to obstruct fishing by prosecution witnesses namely Risau, Malti, Godawari, Dhansai, Dhansingh, Chamra and Bhudram. As the testimony of prosecutrix is not at all supported by medical evidence, we are unable to uphold the finding of guilt recorded by the learned trial Court on the basis of testimony of the prosecutrix (P.W.1), Malti (P.W.4), Risau (P.W.6), Dhansingh (P.W.8) and Shobharam (P.W.9). The impugned judgment of conviction and order of sentence recorded by the trial Court cannot be sustained under the law and the same called for interference. 20. In the result, the appeal is allowed. Conviction of the appellant-Ramadhin under Section 376 of the IPC and sentence imposed under that Section is hereby set aside. He is acquitted of the charge of commission of offence under Section 376 of the IPC framed against him. The appellant is on bail, therefore his bail bonds stand discharged forthwith. He need not surrender. Appeal Allowed.