PAPPU AHARWAR Vs. STATE OF M P

JUDGEMENT

(1.) This criminal appeal has been filed under Section 374 (2) of CrPC against the judgment dated 06.10.2007 passed by Sessions Judge, Chhatarpur in Sessions Trial No.50/2007, whereby learned Sessions Judge found appellant guilty for the offence punishable under Sections 342 & 376 (2)(f) of the IPC and sentenced him to undergo one year rigorous imprisonment and ten years rigorous imprisonment with fine of Rs.500/-, in default of payment of fine amount further three months simple imprisonment respectively.

(2.) Brief facts of the case are that on 17/01/2007 at around 5 PM when prosecutrix (PW/1) (her name and identity imposed by law contained in Section 228A of IPC is not disclosed) who was living with her uncle Ramswaroop (PW/2) at Village Thilapur was returning to her house after throwing garbage, on the way appellant came there and caught hold her hands and took her to his house. Thereafter, he bolted the door of his house from inside and committed rape with the prosecutrix. On hearing her shouting, the neighbour of appellant Sukhnandi, Rammalai, Thakuri Bai (PW/4) and Mahadev came to appellant's house and told to the appellant to open the door. On that appellant opened the door, then prosecutrix went out from appellant's house and narrated the incident to Thakuri Bai (PW/4), Sukhnandi and Rammalai and came to her house and also narrated the incident to her aunt Smt. Suman (PW/3). At that time her uncle Ramswaroop (PW/2) was not at home. He went to Jhansi, when at 3 am, he returned from Jhansi prosecutrix also narrated the incident to him. On that on 18/01/2007 Ramswaroop (PW/2) went to P.S. Orchha Road, Chhatarpur along with prosecutrix and lodged the report (Ex.P/1) of the incident. On that report, police registered Crime No.6/2007 for the offence punishable under Sections 376, 342 & 506-B of IPC against appellant and investigated the matter. During the investigation, S.H.O. Police Station Orchha Road, Chhatarpur, Jai Prakash (PW/12) went to the spot and prepared spot map (Ex.P/3). He also seized simple soil and oily soil from the spot and prepared seizure memo (Ex.P/5) and he also sent prosecutrix to District Hospital Chhatarpur for medical examination along with the application (Ex.P/16) after getting permission for her medical examination from SDM. In the Hospital, Dr. Sushma Khare (PW/9) examined the prosecutrix and gave report (Ex.P/12) and she also prepared slide of vaginal swab of prosecutrix and also seized one skirt and underwear which were wore by the prosecutrix at the time of examination and sent these articles to P.S. Orchha Road, Chhatarpur in a sealed packet through constable Bhagwati Yadav which was seized by the HC Mizaji Lal from his possession and prepared seizure memo (Ex.P/17). During investigation Jai Prakash (PW/12) also recorded the case diary statements of prosecutrix (PW/1), Ramswaroop (PW/2), Raju Ahirwar, Smt. Suman (PW/3), Govind Ahirwar, Thakuriya Bai (PW/4), Sukhnandi Ahirwar, Rambai Ahirwar and Mahadev. He also arrested the appellant on 18/01/2007 and prepared arrest memo (Ex.P/19) and sent him to District Hospital, Chhatarpur for medical examination along with the application (Ex.P/18) where Dr. R.P. Gupta (PW/8) examined the appellant and gave MLC report (Ex.P/9) mentioning that appellant is able to commit intercourse. Jai Prakash (PW/12) also sent all seized article to FSL Sagar through Superintendent of Police, Chhatarpur along with draft (Ex.P/21) for chemical examination fromwhere report (Ex.P/12) was received in which it is mentioned that on Article A underwear & skirt of the prosecutrix and slide of her vaginal swab, semen was found. After the investigation, police filed charge sheet against the appellant before Judicial Magistrate First Class, who committed the case to the Court of Sessions. On that S.T.No.50/2007 was registered and learned Sessions Judge framed charge against the appellant under Sections 376, 342, 506-B of IPC and tried the case. The appellant/accused abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. He also took the defence that on the date of the incident, a quarrel had occurred between Pushpa and prosecutrix so he assaulted both of them due to which Ramswaroop (PW/1) lodged the false report against him. In this regard, appellant also produced Ramkishun (DW/1) & Rameshwar Pateriya (DW/2) in his defence. However, after trial, learned trial Court acquitted the appellant for the offence punishable under Section 506 Part II of IPC but found the appellant guilty for the offences punishable under Sections 342 & 376 (2)(f) of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

(3.) Learned counsel for the appellant submitted that there are many contradictions and omission in the statement of prosecution witnesses. Prosecutrix (PW/1) admitted in her cross-examination that she was tutored by her aunt and uncle to give false evidence against the appellant and also admitted that appellant did not do anything with her. In the medical report of the prosecutrix also, it is mentioned that no external injury was found on her body. If the appellant had committed rape with the prosecutrix, (a minor girl) then she might have sustained injuries on her body. The statements of prosecutrix (PW/1), Ramswaroop Ahirwar (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4) are contradictory and also not supported by the medical evidence. Learned Trial Court without appreciating all these facts wrongly found the appellant guilty of the aforesaid offences.