DILIP KUMAR Vs. STATE OF MADHYAPRADESH CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 8-3-1990 delivered by Shri K. L. Kori, 1st Additional Sessions Judge, Raipur in Sessions Trial No. 86/87 whereby the appellant was convicted under S. 376, I.P.C. and was sentenced to undergo rigorous imprisonment for seven years.

(2.) The factual matrix, in brief, is that the prosecutrix, a minor girl aged about 13 years, had gone to village Kutesar, to the house of her maternal uncle Baanduram P.W. 3 for performing certain agricultural operations. Her father Itwari lived in village Dumartarai. On 22-12-1986 at about 8.30 a.m. while the prosecutrix had gone to collect cow-dung, the appellant came from the nearby village tank and forcibly committed rape on her after gagging her mouth by a piece of cloth. After committing rape, the appellant threatened the prosecutrix not to disclose the incident to anyone. However, the prosecutrix promptly informed the incident to her maternal uncle Baanduram P.W. 3, Dashrath P.W. 12 and Jagdish P.W. 4 and lodged a prompt F.I.R. in Police Station Aarang situated about 22 kilometers west at about 2.30 p.m. on the same day. She was sent for medical examination. Dr. Ku. Shobha Ramanna P.W. 1, on examination, did not find any external injury on her person. She also did not find any injury on her private parts. No definite opinion regarding sexual intercourse by the appellant could be given. Petticot (Article-A) and saree (Article-B) worn by the prosecutrix at the time of occurrence were seized immediately after recording the F.I.R. vide Ex. P.12 at 2.30 p.m. The appellant was apprehended and the underwear worn by him was also seized vide Ex. P. 13. The petticoat and saree of the prosecutrix and the underwear of the appellant were sent to Forensic Science Laboratory for chemical examination. Vide report Ex. P. 16 the presence of semen and human spermatozoa was confirmed on the petticoat (Article-A) and the saree (Article-B) of the prosecutrix while so such stains were found on the underwear of the appellant, Ossification test for determining the age of the prosecutrix was conducted by Dr. S. C. Vishnoi P.W. 6. Vide report Ex. P.6, the age of the prosecutrix was estimated as 13-14 years. The cloth (Article-C) by which the appellant had gagged the mouth of the prosecutrix and lying at the place of occurrence was seized vide Ex. P.4. Dr. S. C. Shrivastava P.W. 5 examined the appellant on 23-12-1986 and found that he was capable of performing sexual intercourse. No smegma was found on the penis of the appellant at the time of examination suggesting possibility of sexual intercourse by the appellant. After completion of investigation, the appellant was prosecuted under S. 376, I.P.C.

(3.) The appellant abjured the guilt, pleaded false implication by the prosecutrix a the behest of Baanduram P.W. 3 due to a property dispute and examined Shankerlal as D.W. 1 and Human Das as D.W. 2. The prosecution examined as many as 14 witnesses. Relying upon the evidence led by the prosecution and the testimony of the prosecutrix, the learned trial Judge convicted and sentenced the appellant as aforesaid in paragraph 1.