GOPAL TIWARI Vs. STATE OF C G

JUDGEMENT

(1.) THIS appeal is directed against judgment dated 26 -6 -2008 passed by 11th Additional Sessions Judge (FTC), Durg in Sessions Trial No. 128/2007. By the impugned judgment, accused / appellant Gopal Tiwari has been convicted and sentenced in the following manner with a direction to run the sentences concurrently: - <IMG>JUDGEMENT_145_CGLJ1_2014.jpg</IMG>

(2.) THE case of the prosecution, in brief, is as under: Prosecutrix (PW -8) and Vandana Sharma (PW -1) are daughters of the appellant and Smt. Usha Tiwari (PW -9) is wife of the appellant. The prosecutrix (PW -8) was residing in the house of the appellant along with the appellant and her mother Smt. Usha Tiwari (PW -9). Prosecutrix (PW -8) was aged about 14 years on the date of incident. The appellant was working as labour in railways. On 14 -06 -2007, the appellant did not go on his duty and he remained stayed at home. At about 2.00 pm, the appellant sent his wife Smt. Usha Tiwari (PW -9) for purchasing some utensils, at that time, the appellant and prosecutrix (PW -8) were present in the house. The appellant caught prosecutrix (PW -8) and when prosecutrix (PW -8) tried to extricate herself from the clutches of the appellant, the appellant threatened her of life and pressed her mouth and committed sexual intercourse with her without her consent. On 15th and 16th of June, 2007 also, the appellant committed sexual intercourse with prosecutrix (PW -8). Prosecutrix (PW -8) ran away from the house and went Gundardehi where her sister Vandana Sharma (PW -1) was residing and narrated her the incident. Thereafter, prosecutrix (PW -8) along with Vandana Sharma (PW -1) went to Police Station, Gundardehi and lodged First Information Report (Ex. -P/12). Prosecutrix (PW -8) was sent to Government Hospital, Durg for medical examination vide Ex. -P/13. Doctor G. Chakraborty (PW -13) examined the prosecutrix and gave her report (Ex. -P/17), in which she found that lacerated wound of 2 x 1/2 inches was present on the right arm, hymen was absent and her vagina was admitting 2 fingers with pain. She prepared 2 slides of vaginal swab of prosecutrix (PW -8) and handed over to concerned Constable for chemical examination and she also referred prosecutrix (PW -8) for X -ray examination for determination of her age. Prosecutrix (PW -8) was sent to District Hospital, Durg for X -ray examination. Doctor B.N.Dewangan (PW -7) took out X -ray of prosecutrix (PW -8) and gave his report (Ex. -P/ 11) in which he opined that the age of prosecutrix (PW -8) was about 16 and half years. The appellant was also sent to Community Health Center (CHC), Gundardehi for medical examination vide Ex. -P/l4. Doctor Harikant Singh (PW -6) examined him and gave his report (Ex. -P/10), in which he found that the appellant was capable of committing sexual intercourse. In further investigation, spot map (Ex. -P/3) was prepared by investigating officer. Underwear of prosecutrix (PW -8) was seized vide Ex. -P/2. Another spot map (Ex. -P/5) was prepared by Patwari Gorelal (PW -3). A slide was seized vide Ex. -P/8. Underwear of the appellant was seized vide Ex. -P/9 and the appellant was arrested vide Ex. -P/17. Seized articles and slide were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex. -P/23 and a report (Ex. -P/25) was received therefrom vide Ex. -P/24. In Ex. -P/25, it is found that article A i.e. underwear of prosecutrix (PW -8) was stained with human spermatozoa. Dakhil Kharij Panji regarding age of prosecutrix (PW -8) was obtained from officiating Head Master Ful Singh Sahu (PW -13) of Primary School Sikosa. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session, Durg, from where it was received on transfer by the 11th Additional Sessions Judge (FTC), Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above.

(3.) SHRI Mirza Kaiser Baeg, learned counsel for the appellant argued that the evidence of prosecutrix (PW -8) does not inspire confidence. The trial Court has grossly erred in holding the appellant guilty for the offence punishable under Section 376 IPC. He further argued that the prosecution story is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with her daughter in presence of his wife. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal.