KARNEL SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) SPECIAL leave granted.

(2.) THE appellant challenges his conviction under section 376, IPC, and the sentence and fine imposed on him. The facts leading to the conviction, briefly stated, are that the prosecutrix (PW 1) Panchbai, was working at a factory where she had reported for duty on the morning of 28.8.1987 around 8.00 a.m. Her job was to lift boulders and place them within the factory premises, while she was working inside the factory, another labour by the name Charan was also present. The appellant and his companion Pyaru came to the factory premises, asked Charan to fetch tea and on his departure the appellant lifted her bodily and took her inside the machine room, placed her on the ground, undressed her from below the waist and had sexual intercourse with her. Pyaru, since acquitted, was asked to keep a watch outside the factory. According to the prosecution after the appellant had satisfied his lust and before Pyaru could take his turn the prosecutrix ran through the opening in the compound wall of the factory, searched her husband; a rickshaw puller, and thereafter lodged the First Information Report (Ex. P -1). She was sent to the Hospital for medical examination where PW2 -Dr. (Smt.) S. Rajpoot examined her and prepared the Report (Ex. P -3). Her evidence has been recorded in brief to the effect that she examined the prosecutrix on that very night at about 9.00 p.m. and found that she was habituated to sexual intercourse. She did not find any marks of injury or struggle on the person of the prosecutrix. However, her saya (petti -coat) which was attached earlier in point of time and shown to her bore semen stains. In her cross -examination she stated that she did not see any signs of forcible intercourse on the prosecutrix and was, therefore; not in a position to say whether or not she was the victim of rape. The garment of the prosecutrix was got examined by the Chemical Analyser, which examination confirmed the existence of semen stains. The prosecutrix in her evidence has stated that immediately after she ran from the place of occurrence she met one Reza Multanabai, a colabourer, and narrated to her the incident before going in search of her husband. Thus, at the earliest point of time she narrated incident to the aforesaid person, but unfortunately that person was not cited and examined as a witness, nor was Charan produced as a witness. Thus, both these witnesses who could have corroborated the prosecutrix were not examined. In the course of investigation the under -garment (chaddi) of the accused is stated to have been recovered. Dr. R.D. Sharma noted semen like stains on the garment and advised its examination by the Chemical Analyser. The seizure of the chaddi was, however, held not proved. Surprisingly, the Investigating Officer has not uttered a word about the seizure of this article. Therefore, this important piece of evidence on which the prosecution sought to rely is of no avail to it. The vaginal swabs had semen stains. This is the state of evidence.

(3.) WE have very carefully scrutinized the evidence having regard to the fact that (PW 6) the investigation officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the chaddi in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective. But despite these deficiencies both the Courts below have recorded a conviction. The question is, are they right?