STATE OF M P Vs. DAYAL SAHU

JUDGEMENT

(1.) The respondent-accused Dayal Sahu was put to trial under Section 376, IPC. He was convicted by the Trial Court and sentenced to seven years imprisonment and a fine of Rs. 500/-, in default three months rigorous imprisonment. The High Court, on appeal preferred by the accused, set aside the conviction recorded by the Trial Court and acquitted the accused (respondent herein) solely on the ground for non-examination of PW-9 Dr. V.M. Pursule, as according to the High Court, non-examination of PW-9 prejudiced the case of the accused for non-providing of an opportunity to the accused to cross-examine the doctor. Being aggrieved, this appeal is preferred by the State of Madhya Pradesh by special leave.

(2.) Briefly stated the facts of the prosecution case are as follows: In the night of 1-4-1991 the accused-respondent Dayal Sahu who was a relative of complainant came to the village Mandvi with another man Jagdish as guests. The prosecutrix-Santribai, wife of PW-2 Ramdas was sleeping inside the house. Other family members were sleeping outside the house with guests. At about 4.00 a.m. the accused entered into the room of prosecutrix in the guise of her husband and committed rape upon her by removing all her clothes. On query by the prosecutrix as who he was, the accused pressed her mouth; only then the prosecutrix came to know that the man who had intercourse with her was not her husband. Thereafter, she awakes her husband and other members. The husband of prosecutrix entered the room and lit lantern and found the accused Dayal Sahu present there. The accused made a confessional statement for avoiding any event of demoral nature and to avoid an apprehension of beating. The matter was reported to the Kotwar of the village, who took the prosecutrix to the police station and reported the matter on 1-4-1991 itself wherein the fact was recorded regarding the commission of rape with Santribai.

(3.) The prosecution examined as many as 14 witnesses. Amongst others, the prosecutrix-Santribai was examined as PW-1. Ramdas, the husband of the prosecutrix was examined as PW-2. Puslibai, the mother-in-law of the prosecutrix was examined as PW-3, who was declared hostile by the Trial Court. She was cross-examined by Public Prosecutor, when she admitted that she is hard of hearing. Deorao Kotwar, who took the prosecutrix to the police station and got the report lodged, was examined as PW-4. Chindhiye, the father-in-law of the prosecutrix was examined as PW-5. Dr. V.M. Pursule, who examined the accused and on examination of his private parts found that the accused was healthy and capable of committing sexual intercourse, was examined as PW-9. It appears that the prosecutrix was also medically examined by a lady doctor and her slide, pubic hair, saree, underwear and petticoat, which she was wearing at the time of incident, had been sent to F.S.L. Sagar for examination. The report of F.S.L. was also received vide Ex.P.8 and Ex.P.9. According to the report, white and hard stains were found on the underwear of the accused and on the saree and petticoat of the prosecutrix. As per Ex.P-9 report, stains of semen and sperms were found on the underwear of accused.