KOUSHAL KISHORE Vs. STATE OF M P

JUDGEMENT

(1.) By this common judgment, the above three criminal appeals will be decided as they arise out of the same judgment. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-1-1999 passed by the 6th Additional Sessions Judge, Durg in Sessions Trial No. 461/96 whereby and whereunder after holding appellants Kaushal Kishore and Sanjay Kumar guilty for commission of offence under Sections 363, 366 and 376 of Indian Penal Code (in brevity 'IPC') and appellants Mohanlal and Arun Kumar guilty for commission of offence under Section 363 of I.P.C., convicted and sentenced the appellant as mentioned below with a direction to run both the substantive jail sentence concurrently awarded to Koshal Kishore and Sanjay Kumar.

(2.) Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

(3.) Two prosecutrix in this case are sisters. As per prosecution case, on 7-6-1996, prosecutrix P.W. 11 (name not mentioned) along with her elder sister another prosecutrix (name not mentioned, she died for other cause during trial but before her examination) when not returned home and the same was informed by their mother Rajkumari to her husband P.W. 12 Naradlal Sahu (father of both the prosecutrix), he went for a search. He was informed by Dulasiya that they kept their bicycle in the noon and left. P.W. 12 inquired about their whereabouts in the night. On 8-6-1996 he reached to the police station Utai and informed about the incident regarding missing of his both daughters i.e. both the prosecutrix. Police started investigation in Gum Insan. P.W. 9 D.S. Rajput, Assistant Sub Inspector, recovered both the prosecutrix from the house of Gorelal Yadav near Gayatri Mandir at Sarani. P.W. 11 Prosecutrix was recovered from appellant Sanjay Kumar and the prosecutrix (since deceased) was recovered from appellant Kaushal Kishore on 18-6-1996 before Panch witnesses. The Investigating Officer prepared the recovery panchnama Ex. P-14 and gave both the prosecutrix to P.W. 12 Naradlal Sahu on supurdnama vide Ex. P-15. As per request of Utai police vide Ex. P-17, after obtaining the necessary permission for examination, Dr. Mamta Pandey, P.W. 10, examined prosecutrix P.W. 11 and noticed no external or internal injuries and opined that no definite opinion can be given about recent intercourse. She also prepared two slides from vaginal swab and handed it over to the concerned constable and gave her report vide Ex. P-28. On request vide Ex. P-18 P.W. 10 also examined the another prosecutrix (since deceased) on the same day and noticed no external or internal injuries and opined no definite opinion regarding recent intercourse could be given vide Ex. P-30. She also examined the clothes of both the prosecutrix on the basis of memo sent to her as Ex. P-19 and P-20 and gave her report and opined that clothes may be sent for chemical analysis vide Ex. P-29 and P-31. During investigation, clothes of the prosecutrix were seized by seizure memo Ex. P-1 and P-2. Two bicycles were seized from the possession of Narayan Prasad Chandrakar vide Ex. P-3, one bicycle seized from Naradlal Sahu" which was used by both the prosecutrix when they were going out on the date of incident. The 10 seized Dakhil Kharij register Ex. P-6-C, Ex. P-7-C from P.W. 7 Heeradas Kurre, the then Head Master, Govt. Girls Middle School, Dhanora in relation to the date of birth of the prosecutrix vide seizure memo Ex. P-4. As per the document, the date of birth of prosecutrix (since deceased) was 26-2-1978 and date of birth of another prosecutrix P.W. 11 was 14-7-1981. As per the date of birth of prosecutrix (since deceased) her age was above 18 years and age of prosecutrix PW 11 was 14 years 11 months and 23 days on the date of incident. Dakhil Kharij register is Ex. P-6 and P-7. He also gave the certificate Ex. P-8 and P-9 regarding the date of birth of both the prosecutrix on the basis Dakhil Kharij register. Appellant Sanjay Kumar and Kaushal Kishore were examined by the P.W. 8 Dr. R.N. Turre who opined after examination of both the appellants Sanjay Kumar and Kaushal Kishore that they were clinically capable of committing intercourse. He gave his report as Ex. P-10 and P-11. He also examined the inner clothes of these two appellants and advised for chemical analysis for presence of encircled stains vide Ex. P-12 and P-13. On 19-6-1996, D.S. Rajput P.W. 9 lodged FIR and registered the crime under Sections 363, 366 and 376/34 of I.P.C. by registering the crime No. 86/96 against all the appellants after inquiry conducted in Gum Insan 15/96. The slides prepared and handed over to the concerned constable by P.W. 10. Dr. Mamta Pandey were seized from the concerned constable vide seizure memo Ex. P-21. Undergarments of appellants Sanjay Kumar and Kaushal Kishore were seized vide Ex. P-22 and P-23. Spot map was prepared by the I.O. vide Ex. P-24. The articles so seized were sent for chemical analysis "vide memo Ex. P-25 which was received in FSL Raipur vide receipt Ex. P-26. FSL, Raipur after chemical analysis gave its report vide Ex. P-27 and found stains of semen and human spermatozoa over the clothes and slides of both the prosecutrix and also in the undergarments of appellants Kaushal Kishore and Sanjay Kumar. The presence of semen stains found in the undergarments article A, B, E and F were not sufficient for serologist examination. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (in brevity 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg on 31-7-1996 who in turn committed the case to the court of Session, Durg. Learned Additional Sessions Judge received the case on transfer for trial.