STATE OF CHHATTISGARH Vs. DERHA

JUDGEMENT

(1.) Respondent herein was charged of an offence punishable under S. 376(2) of the Indian Penal Code before the Second Additional Sessions Judge, Durg, M.P. The trial Court found him guilty of the offence charged and sentenced him to undergo R.I. for 10 years. In appeal filed against the said conviction and sentence before the High Court of Madhya Pradesh at Jabalpur, the High Court allowed the appeal, setting aside the said conviction and sentence. It is against the said judgment of the High Court u/S. 376(2)(f) the State of Madhya Pradesh is in appeal before us. Brief facts necessary for the disposal of this appeal are as follows :

(2.) Prosecution in support of its case relied on the evidence of the mother of the victim P.W. 1, the victim herself who was examined as P.W. 2 and the doctor P.W. 3 who examined the victim. The accused was examined by one Dr. G. R. Naamdev on 10-3-1990. The trial Court relying on the evidence led by the prosecution came to the conclusion that the accused was known to the victim since he was staying in the same locality and the actual act of rape having been proved by the medical evidence, there was no reason why the evidence of P.W. 2 should not be accepted since nothing was suggested by the defence against this victim. The only suggestion made was that there was some dispute between the parents of the victim and the accused without giving any particulars whatsoever of such enmity. The trial Court also came to the conclusion that though there was no delay in filing the complaint said delay was properly explained by the prosecution which was mainly due to the fact that the father of the victim was not in station on the said date of the incident and after he came back to the station they had decided first to trace the accused before lodging a complaint in question. Thus primarily based on the evidence of P.W. 2, the victim and the medical evidence which proved the factum of rape and there being no enmity or reason for P.W. 2 to state falsely convicted the accused, as stated hereinabove.

(3.) In the appeal filed by the accused before the High Court, the High Court firstly found that the delay in lodging a complaint was fatal to the prosecution case. The explanation given in regard to this delay was rejected by the High Court. The High Court also came to the conclusion that it was not safe to rely on the evidence of P.W. 2, the victim to base a conviction because according to the High Court there was some discrepancy as to the act of penetration while committing rape in the evidence of the victim and the evidence of the doctor. It also relied on a reply given by the Doctor P.W. 3 to a suggestion made by the defence that the injury suffered by P.W. 2 may also have been suffered by hard and blunt object hence the High Court inferred that the injury on the victim could have been suffered by the victim by falling on some such hard and blunt object. It also took note of the fact that the medical examination of the accused did not show any injury on his private parts therefore it inferred that the accused could not have committed rape on the minor without hurting himself on his private part. In regard to the evidence of P.W. 2 the High Court was of the opinion she being a child witness who was about 8 years of age it is possible that she could have been tutored. On the above basis the High Court came to the conclusion that it is not safe to base a conviction hence allowed the appeal, setting aside the conviction and sentence imposed on the appellant.