DHAN SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed by the accused against the judgment and order dated 13.7.90 passed by Ilnd A.S.J. Mandleshwar, in ST No. 121/87 whereby the appellant was convicted for offences u/Ss. 376 and 323 of the IPC and sentenced to 7 years Rl and to pay fine of Rs. 250/ - in default of payment of fine. 3 months R.I. and six months R.I. respectively.

(2.) THE prosecution case, in brief, was that on 1.5.87 the prosecutrix Malibai (PW 1) had gone to graze her goats in Silotiya Jungle. At about 5 -5: 30 p.m. the appellant came there. He kicked her and fell her on the ground, raised her Lahanga, opened his underwear and committed sexual intercourse against her will and consent. She raised cry, hearing which Devlibai (PW 3) came there and thereafter her father Jhetu (PW 2) also came there. Malibai narrated the incident to them. On the next day they want to PS. On where the prosecutrix Malibai lodged FIR Ex. P.1. She was sent for medical examination. Dr. Smt. v. Bhalke (PW 8) examined her. She did not find any injury on her body or private part. She prepared slides of vaginal swab and took her petticoat, sealed and sent them to Investigating Officer. Mohammad Taki, Investigating Officer (PW 9) visited the spot and prepared spot -map Ex. P.7. After completion of investigation, challan was filed. The appellant pleaded not guilty and false implication. The learned Sessions Judge after appreciation of evidence convicted and sentenced the appellant as stated above. Hence, this appeal.

(3.) I considered the arguments advanced by counsel for both sides and perused the record. It has come in the evidence of Malibai (PW 1) that she had gone to graze her goats at Silotiya Nala. At about 5 p.m. the appellant came there. He kicked and threw her on the ground, raised her Lahanga, opened his underwear and inserted his male organ into her vagina. When she made cry, Devlibai came on the spot and her father Jhetu also came after sometime. She narrated the incident to them. But Devlibai (PW 3), the independent witness stated that when she went to the spot, Malibai told her that the appellant ran towards her to catch her, she fled away from there. She did not tell her that the appellant committed rape on her. It is true that Jhetu (PW 2), the father of the prosecutrix, stated that his daughter Malibai told him that the appellant committed sexual intercourse with her. But as stated earlier, the independent witness Devlibai did not support the prosecutrix. No doubt, conviction can be based on the sole testimony of the prosecutrix. But so far as this case is concerned, the evidence of Malibai does not appear to be of that category. There was enmity between these two families as deposed by Ida (DW 2). In view of the peculiar facts and circumstances of this case, corroboration appears desirable. As stated earlier, Devlibai did not support the prosecutrix. The medical evidence also does not support her. She stated that she was thrown in bushes of 'Tameshar' but no scratches or thorny injury was found on the body of the prosecutrix by Dr. Smt. V. Bhalke (PW 8). According to the prosecutrix, her Lahanga was seized, slides of her vaginal smear were prepared and were sent for chemical examination. The prosecution did not file the report of FSL and under such circumstances, the adverse inference is that no semen was found on the Lahanga and slides and as such no intercourse was done with the prosecutrix. FIR was also delayed. The incident took place at 5 p.m. - 5:30 p.m. in the month of May and the village of the prosecutrix is situated near a road, therefore, the FIR could be easily lodged in the night itself. FIR Ex P -1 shows that it was lodged next day on 2.5.87 at 10.30 a.m.