KOMAL SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 15th July, 2008 passed by Sessions Judge, Mandla in Sessions Trial No.139/2007, whereby the learned Sessions Judge found appellant guilty for the offences punishable under Sections 376 (2)(f) & 363 of IPC and sentenced him to life imprisonment with fine of Rs.5000/- with default stipulation and three years rigorous imprisonment respectively.

(2.) In brief the prosecution case is that on 21.08.2007 at 05:15 PM, Smt. Kalsi Bai (PW/1) lodged the report (Ex.P/1) at Police Station Newas averring that she resided at Village Jangliya and did agricultural work. She was in the house with her grand daughter, age about 2 years (name and identity of the prosecutrix granddaughter imposed by law contained in section 228A of IPC is not disclosed), and was gleaning the wheat while prosecutrix was playing in the courtyard. At around 2 PM appellant Komal Singh came there and caught hold of the prosecutrix and took her with him. When he, did not bring her back for quite some time, she went to look out for the prosecutrix. She saw that appellant was hidden at Sarpanch's farm. On seeing her he started running. On that she shouted so appellant left the prosecutrix and started running away. She picked up the prosecutrix and saw that blood was oozing out from her private part. Appellant committed rape with prosecutrix. Her nephew Bhag Singh @ Ganesh (PW/7), Son Rajesh (PW/3) and Prahlad Gaud (PW/2) chased the appellant so appellant fell down on stone, and they caught hold of the appellant. The incident was also seen by Chinna Bai (PW/5) and Meera Bai (PW/6) who were weeding near the Sarpanch's farm. On that report police registered Crime No.100/2007 for the offence punishable under Sections 376 and 363 of IPC and investigated the matter. During investigation, the prosecutrix was sent for medical examination to CHC Newas, where Dr. Smt. Reeta Shrivastava (PW/11) conducted medical examination of the prosecutrix and gave report (Ex.P/18). She also prepared slide of vaginal swab of prosecutrix and also seized her undergarments and pubic hairs and sent it to Police Station Newas in a sealed packet through Constable Ramdayal Maravi which was seized by O.P. Vinodiya (PW/10) and prepared seizure memo (Ex.P/15). Dr Ashok Sharma (PW/10) also examined the prosecutrix and gave MLC report (Ex.P/19). During investigation, on 21.08.2007, O.P. Vinodiya (PW/10) arrested the appellant and prepared arrest memo (Ex.P/12) and sent him for medical examination to CHC along with letter (Ex.P/5) where Dr. Kavindra Singh Parte (PW/8) conducted the medical examination of the appellant and gave report (Ex.P/5). He also seized underwear of accused-appellant and prepared slide of his semen and sent it to Police Station Newas through Constable Bhoopat Singh, in a sealed packet where O.P. Vinodiya (PW/10) seized that packet from his possession and prepared seizure memo (PW/14). On 22/08/2007 O.P. Vinodiya (PW/10) went to spot and prepared spot map (Ex.P/4) and he also recorded the statements of witnesses Rajendra, Seeta Bai (PW/4), Chinna Bai (PW/5), Meera Bai (PW/6) Kamod, Bhag Singh (PW/7), Ramesh and Rajaram and also sent all seized articles for chemical examination to FSL Sagar through Superintendent of Police along with draft (Ex.P/16) and from FSL Sagar report (Ex.P/20) was received. After investigation police filed charge sheet against the appellant before Judicial Magistrate First Class Newas, who committed the case to the Court of Sessions. On that S.T.No.139/2007 was registered which was tried by learned Sessions Judge Mandla and framed the charge against the appellant for the offences punishable under Sections 324, 363 & 376 (2)(f) of IPC. The appellant/accused abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. The family members of the prosecutrix borrowed money back from him which was due on them and when he demanded that money the family members of the prosecutrix lodged false report against him. In this regard he also produced Ghanshyam Prasad Sahu (DW/1) in his defence. However, after trial learned Sessions Judge found the appellant guilty for the offences punishable under Sections 363 & 376 (2)(f) of IPC and sentenced him as aforesaid. But he did not give any finding as to whether offence under section 324 of IPC was proved against appellant or not and only gave finding for the offences punishable under Sections 376 (2)(f) & 363 of IPC. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

(3.) Learned counsel for the appellant submitted that there is no direct evidence on record that anybody saw the appellant committing rape with the prosecutrix. Even prosecution did not produce prosecutrix in the evidence before the trial court. The FSL report do not support the prosecution story. Learned Trial Court only on the basis of statements of prosecution witnesses wrongly found the appellant guilty for the aforesaid offences while from the statement of defence witness Ghanshyam Sahu (DW/1), it is proved that the family members of the prosecutrix borrowed money from the appellant which was due on them and when the appellant demanded that money the family members of the prosecutrix lodged false report against the appellant. Learned Trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offences. Hence, counsel prayed that the impugned judgment be set aside and the appellant be acquitted of the said offences.