LEKH RAM Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANT Lekhram, the sole accused person in this case, has been convicted by the impugned judgment dated 7 -3 -90 passed in Sessions Trial No. 84/87 by the 1st Additional Sessions Judge to the Court of Sessions Judge, Chhindwara, for an offence under Section 450 of the Indian Penal Code and sentenced to undergo five years rigorous imprisonment and fine of Rs. 1000/ - or in default to undergo one year rigorous imprisonment. He has also been convicted under Section 376 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and fine of Rs. 1,000/ - or in default to undergo one year rigorous imprisonment. Both the sentences are to run concurrently. The appellant has been found guilty for committing the offence of house trespass in order to commit rape. He has also been guilty for committing the offence of rape with the prosecutrix, Ku. Kusma Bai on 16 -1 -87 at about 4:00 p.m. in her house. Briefly stated the facts giving rise to this appeal are as under : -

(2.) PROSECUTRIX Kusma Bai (P.W.1), her father Lungsi, mother Rango Bai and brother -in -law Tilak Ram (P.W.4) live in a small two room house constructed in the "Bhidka" of Radhelal, who is the father of the accused appellant. On 16.1.87, at about 4:00 p.m., prosecutrix (P.W.1) was alone in the front Verandah of her house when the appellant approached her and enquired about the presence of her family members. On being told that all of them had gone out for work and no one was in the house, the appellant lifted her and took her inside the room. Thereafter, he threw the prosecutrix on the ground and forcibly committed sexual intercourse with her. While committing rape, the appellant had (sic) a piece of cloth in the mouth of prosecutrix (P.W.1) to prevent her from shouting. The bangles of the prosecutrix (P.W.1) were broken during rape committed on her. Her sari and blouse which she had worn at the time of incident were also torn. It is alleged that while the appellant was committing rape, suddenly Smt. Rukma Bai (P.W.2). sister of prosecutrix (P.W.1), came to the house and seeing her, the appellant had ran away. Prosecutrix (P.W.1) narrated live incident to Rukma Bai (P.W.2). Thereafter, at about 8:00 p.m. she also narrated the incident to her father Lungsi. mother Rango Bai (P.W.3) and brother -in -law Tilak Ram (P.W.4) on their return from work. On 17.1.87. at about 3.30 p.m.. the prosecutrix, accompanied by her father Lungsi. went to the Police Station. Navegaon. District Chhindwara, situated at a distance of about 12 kms. and lodged First Information Report, Ex.P1, of the incident whereupon offences under Sections 450 and 376 of the Indian Penal Code were registered and investigation commenced. On 3.1.87 the prosecutrix (P.W.1) was examined by Dr.Smt. Chaya Thakur (P.W.11). No marks of violence were found on any part of the body of prosecutrix (P.W.1) including her private parts. Vagina opening admitted one finger easily and two fingers tightly. There was no injury over hymen and vagina or vluva. There was no bleeding and tenderness. Dr.Chaya Thakur (P.W.11) in her report. Ex. P12, gave a categorical opinion that there was no sign of rape. The alleged approximate age of the prosecutrix (P.W.1) was 14 years at the lime of incident. She, however, prepared, sealed and handed over the vaginal smear slides to the Constable accompanying the prosecutrix (P.W.1) for their chemical examination which were seized by the police vide Ex.P6.

(3.) INVESTIGATING Officer, O.P. Vinodia (P.W.10) during investigation, seized three broken pieces of bangles from the spot vide Ex.P2 and also seized the sari and blouse of prosecutrix (P.W.1) vide Ex.P3. The sari was then sent to Dr.Chaya Thakur (P.W.11) for her opinion who prepared a sealed packet of the same and handed it over to the police for chemical examination vide Ex.P13. The appellant was arrested on 19.1.87. He was examined by Dr.N.R. Azad (P.W.12). He was found to be potent and capable of performing sexual intercourse. However, no mark of any injury was found on his person. Smegma was found to be present around the glans of penis. The medical report of Dr.N.R. Azad is Ex.P10. He was aged 21 years at the time of incident. His underwear was seized from him by the police vide Ex.P4. The police also prepared a sealed packet of public hair and semen slide of the appellant vide Ex.P7. The Assistant Chemical Examiner of Forensic Science Laboratory (FSL) found the presence of seminal stains and sperms and also blood on the sari (Article A) and vaginal smear slides (Articles B1 & B2) of the prosecutrix. Nothing incriminating was, however, found on the underwear (Article C), semen slide (Article D) and public hair (Article E) of the appellant. The Forensic Science Laboratory (FSL) Report is Ex.P8. The Serologist Report, Ex.P9, also showed presence of human blood and semen on the sari of prosecutrix (P.W.1). The blood group of the stains and semen group of stains could not, however, be determined as they were insufficient for test. The appellant in his defence pleaded that he was innocent and had been falsely implicated as Lungsi, father of prosecutrix, refused to pay his father, Radhelal, a sum of Rs. 2500/ - which was outstanding against him in a Panchayat held on 17 -1 -87 i.e., a day after the incident. A false report has been made at the behest of Ammilal, an Uncle of the appellant, for teaching a lesson because appellant's father, Radhelal, had dared to demand the money from Lungsi. It was also stated in defence that Ammilal and Radhelal, being brothers, are joint owners of the "Bhidka" and there is a dispute between them regarding eviction of Lungsi from it. The trial court, relying upon the evidence of prosecutrix (P.W.1), Rukma Bai (P.W.2), Rango Bai (P.W.3) and Tilak Ram (P.W.4) and also the report of Forensic Science Laboratory (FSL), Ex.P8, and Serologist Report, Ex.P9, convicted the appellant for offences under Sections 450 and 376 of the Indian Penal Code and sentenced as aforesaid.