KISHNA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE appeals having been arisen out of Sessions case No. 53/82 of one and the same incident alleged to have taken place on December 19, 1991 of which FIR No. 95/81 was lodged at police station Mandana (Kota) against four persons including the present appellants, are being disposed of by this common judgment.

(2.) IN the first information report lodged on verbal report by Smt. Achuki (informant & prosecutrix) it had been alleged that, on December 19, 1981 at about 8 p. m. she heard noise of opening a door which was being unbolted, thereupon she, asking as to who was, rushed outside room towards courtyard then one Mangilal asked her about calling of her by one Kishna Gujar, to which she answered that none had been in her house, and she came to the exit door of the house but as soon as she reached the exit door, by catching her hand she was drawn out of her house by Kishna; and thereupon she had clamoured but her mouth was gagged with hand by Mangilal, then she was dragged by Kishna to enclosure of Laxminarain Patel's land situated opposite her house where Devlal & Babulal were already waiting. It had also been alleged by Smt. Achuki that in the said enclosure she was moved down to lie on the grass but she continued to uproar then Devlal by gagging her mouth slapped her, thereupon her petticoat was lifted by Kishna who committed forcibly sexual intercourse upon her despite her desist by kicking and legging to Kishna but he was successful in his sexual lust and did not lift himself from her body till he completed sexual intercourse. However, in the meantime, upon hearing some whispering of coming person all the four fled away. Thereafter, she rushed outside the place of Laxmi Narain and at the door, one Lalchand met, to whom also, the incident was narrated and later on, to her husband upon his return. It had also been stated that in the night since there was no conveyance facility available, the report was lodged in the next morning.

(3.) IN examination-in-chief, Smt. Achuki (PW 1) stated that Kishna Gujar lifted her petticoat and inserted his penis in her vagina and his semen was discharged into her vagina whereas in her cross-examination she gave out that during sexual intercourse by Kishna, the blood was being oozed out of her vagina thereby he cloth, i. e. petticoat smeared with blood. I may state that the doctor who medically examined the prosecutrix has not stated that during her examination, her found her in state of menstruating, nor he found any spots of either menses of blood on her petticoat or cloth, inasmuch as I find that there is no circumstance on record either in the evidence of the prosecution witnesses or in the documents prepared by the police during investigation to show that her petticoat or cloth were found duly smeared with blood either when she came to lodge in report at the police station or when she appeared before the doctor during her medical examination or when her cloth or petticoat were seized for being onward transmission to the chemical examiner for examination. Further neither any blood or its spots nor any human semen or blood has been found by the chemical examiner, in the vaginal smear, or vaginal swab, as would be evident from the chemical examiner's report (Ex. P. 12a ). On the one hand, seizure memo of petticoat (Ex. P. 3) gives out that there was a blood spot on the petticoat but contrarily, there is no corroboration to it in the report (Ex. P. 12a) because it states that human semen was detected on Ghaghara (petticoat) and Chaddi (under wear of the accused), and it does not state that any blood was detected on these articles. Similarly, seizure memo of the petticoat (Ex. P. 3) does not depict of detecting either any human semen or its spot on the petticoat but, as wrung out from the chemical examiner's report (Ex. P. 12a), human semen was detected on the seized petticoat, which casts smack and doubt on the seizure of the petticoat and the report of the chemical examiner. And it is fatal to the prosecution.