Judgment:
Ashok Kumar Verma, J.
1. The sole appellant, Maheshwar Sahu, has preferred this appeal against the judgment and order dated 28th April, 1995, passed by 2nd Additional Sessions Judge, Gumla, in Sessions Trial No. 137/90, whereby the learned Additional Sessions Judge has convicted the accusedappellant under Sections 376 and 312, I.P.C. and sentenced him to undergo R.I. for seven years under Section 376, I.P.C. and to undergo R.I. for five years under Section 312, I.P.C. The sentences are to run concurrently.
2. In short, the case of the prosecution is that in the month of April 1989 at about 10' O clock in the day informant Tulaspati Kumari was alone in her house and in the meantime accused Maheshwar Sahu entered into her house and caught her and thrashed her on the ground, and raised her Sari and committed rape on her. When the informant raised alarm the accused shut her mouth by putting his hand on her mouth and also threatened her. The accused left her after his semen was discharged. The accused assured the informant that he would marry her. Thereafter also the accused came to the house of the informant on 2 to 3 days and committed rape on her. The accused always used to assure her that he would marry her. As the informant had two houses in the village, and so some times she lived in one house alone. As a result of rape committed by the accused Maheshwar Sahu the informant became pregnant and when the pregnancy had developed to about seven months and the informant was turning pale, her mother enquired about it and she asked Maheshwar Sahu to marry her and Maheshwar Sahu asked her to get the abortion done. The informant refused for abortion of pregnancy on which accused Maheshwar Sahu took out two tablets from his pocket and pushed the tablets in her mouth, and asked her to chew it and also threatned her. As the informant was alone in the house, she swallowed the tablets due to fear and at about 3 to 4 A.M. she aborted, and at that time her mother was also there. According to the informant, as stated in the F.I.R. this occurrence is of the month of September and thereafter her brother came from outside and enquired about it from Maheshwar Sahu and then Maheshwar Sahu fled away from the village. Therefter the informant lodged information at the police station on 21-10-1989. After investigation police submitted chargesheet against the accused. The learned Chief Judicial Magistrate took cognizance of the case and committed it to the Court of Session for trial.
3. The defence of the accused, according to the trend of cross-examination of the prosecution witnesses is that he has been falsely implicated in this case.
4. It was contended by the learned lawyer of the appellant that the case of the prosecution is that the accused had committed rape on the informant in the month of April, as a result of which she had become pregnant and she had pregnancy of about seven months in the month of September and the accused had forcibly administered oral drug on the informant causing abortion of the child, but according to the plain calculation, a lady who becomes pregnant in the month of April cannot have pregnancy of seven months in the month of September same year. It was also submitted by him that a lady cannot hide pregnancy of seven months and it will be apparently visible, but the informant Tulaspati Kumari (P.W. 3) has admitted in her evidence that for the first time her mother enquired about her failing health on the day on which Maheshwar Sahu had administered tablet to her. The contention of Additional P.P. for the State was that the informant did not tell about the rape and pregnancy to any one due to shame and assurance given by the accused that he would marry her. This also caused delay in instituting the case.
5. In this case eight witnesses have been examined on behalf of the prosecution. P.W. 4, Puneshwar Prasad, is an Advocate's clerk and P.W. 6 Pradeep Kumar Bhagat is also an Advocate's Clerk and both are the witnesses of formal nature. P.W. 7, Ezra Bodra, is officer-in-charge of Sisai Police Station. According to him, on 21-10-1989 he was posted as officer-in-charge of Chaghra P.S. and on that day Tulaspati Kumari had come to the police station and given her statement which was recorded and which was read over to her and after finding it correct she had signed on it. Ext. 3 is F.I.R. of this case. He (P.W. 7) has said that he had handed over the investigation of the case to Hargobind Das, SubInspector of Police who conducted the investigation and when he (Hargobind Das) was transferred he made over charge of the case on 16-4-90 to him (P.W. 7). Further according to him on the basis of the statements of the witnesses and available evidence he submitted chargesheet in this case. P.W. 8 is Hari Govind Das, Officer-in-charge of Mawadah Mufassil P.S. He has said that on 21-10-1989 he was posted at Chaghra P.S. as Sub-Inspector of Police and on that day the officer-in-charge Ezra Bodra had entrusted the investigation of the case to him, and he proceeded with the investigation and recorded the further statement of the informant and sent her for medical examination to Gumla Sadar Hospital. He has further said that he inspected the place of occurrence and recorded the statements of other witnesses and obtained medical report on 18-11-1989 from Gumla Sadar Hospital and on his transfer he handed over investigation of the case to the officer-in-charge.
6. P.W. 2 is Balchand Sahu. According to him, he learnt that Tulaspati had pregnancy which had been aborted. He has said that he did not ask anything from Tulaspati and there had been panchayati and Tulaspati said in Panchayati that she had pregnancy from Maheshwar and Maheshwar had given the tablets with the assurance that he would keep her and after Tulaspati took the tablets there was abortion of her pregnancy. He has said in his cross-examination that he had no knowledge before the Panchayati and the Panchayati was held after eight days of the abortion, and during those eight days there had been no talk in the village about the abortion. It is strange that a lady will suffer abortion of pregnancy of seven months in the village and there would be no talk about it in the village. Besides that this witness has made statement on the basis of the statement made by Tulaspati in the Panchayati. Admittedly he has no personal knowledge about the occurrence of this case.
7. P.W. 1 is Sheo Prasad Sahu, brother of the victim girl Tulaspati Kumari. He has stated that in the year 1989 he was working in Orissa in a wine shop (Daru Bhatti) and in the month of October he had come to his house on leave and he learnt that his sister Tulaspati aged about 14-15 years was pregnant. He has further said that Tulaspati told him that about 7 to 8 months back Maheshwar Sahu had committed rape on her and he had threatened her and assured to marry her and thereafter also Maheshwar Sahu committed rape on her due to which he had become pregnant. He has said that when Tulaspati had pregnancy of six months she asked Maheshwar to marry her on which Maheshwar asked her to get abortion done to which Tulaspati did not agree, but Maheshwar administered her tablet which caused abortion. Further, according to him he had called a Panchayati and Maheshwar Sahu refused to marry and thereafter he took Tulaspati to police station where Tulaspati gave her statement to Daroga. Exts. 1 and 1/a are the signatures of Sheo Prasad Sahu and Tulaspati Kumari on the F.I.R. He has said in his cross-examination that Tulaspati had told about the rape and abortion after the abortion was done. According to F.I.R. (Ext. 3) the accused had committed rape on the informant in the month of April and she had pregnancy of about seven months in September and Maheshwar Sahu had administered her the tablet which caused her abortion in the month of September, P.W. 1, Sheo Prasad Sahu, has said that he had come to his village on leave in the month of October. So admittedly he has said what his sister Tulaspati had told him. He has also said in his cross-examination that he was working in the Bhatti of Sheo Prasad Sahu in Balangir in Orissa and accused Maheshwar Sahu was also working in that Bhatti since two years before the occurence and they were living together. He has further said in his cross-examination that it is true that on the said dates or period of occurrence the accused was living with him in Balangir. When the accused was living in Balangir in Orissa with this witness during the period of occurrence how he (P.W. 1) can say that the accused had committed the offences. Admittedly this witness (P.W. 1) was not present in the village at the time of said occurrence. He has stated about the occurrence what he had learnt from his sister Tulaspati. This witness (P.W. 1) has no personal knowledge of the occurrence.
8. P.W. 5 is Dr. Mr. Shakuntala Pandey. She has stated that on 23-10-90 she was posted as Civil Assistant Surgeon at Gumla Sadar Hospital and on that day at 11.45 a.m. she had examined Tulaspati Kumari. She has said that on physical and clinical observation her age appeared to be approximately 18 to 19 years, and even than her actual age may be determined by X'-ray examination of different bones. She has also said that per abdominal examination nothing abnormal was detected and per vaginal examination hymen was found ruptured, vagina was well dilated and admitted two fingers easily, and the uterus was of normal size and anteverted and she was habitual in act. She has said that as per vaginal smear examination spermotozoa were not found and in her opinion signs of recent abortion were not present and by 'recent' she means 15 days and in her opinion it was not a case of recent rape. Ext. 2 is medical report of Tulaspati Kumari and it is dated 23-10-89 and in it it is mentioned as T/E at 11.45 a. m. on 23-10-89. So, according to the evidence of the Doctor (P.W. 5) it was not a case of recent rape and in her opinon signs of recent abortion were not present.
9. P.W. 3 is Tulaspati Kumari, informant of this case. She has stated that in the month of April at about 10 a.m. she was studying in her house and her mother was not in the house and Maheshwar Sahu entered into her house and caught her and thrashed her on the ground and when she wanted to raise Hulla he put cloth in her mouth and raised her Sari and committed rape on her and he released her when his semen was discharged. She has further said that Maheshwar Sahu assured her that he would marry her and due to fear and shame she did not tell about it to anyone. According to her, she had pregnancy from Maheshwar Sahu and when the pregnancy developed to 6-7 months she asked Maheswar to marry her who asked her to get abortion done. Further, according to her when she refused to get the abortion done, Maheshwar forcibly pushed tablet in her mouth and threatened her to eat tablet and in the same night at about 3 to 4' O clock she suffered abortion and the child was dead and she told about rape and abortion to her mother and she informed her brother also, who lives in Orissa and his brother came and called Panchayati and in Panchayati Maheshwar Sahu refused to marry her. She has said that she along with her brother Sheo Prasad Sahu went to the police station and gave her statement to Daroga, which was recorded by him and the Daroga read it over to her and after finding it correct she had put her signature on it. She has said in her cross-examination that she cannot say about her date of birth recorded in the school certificate. She has further said in her cross-examination that for the first time her mother had enquired about her failing health on the date on which Maheshwar had given tablet to her and before that she (her mother) had not asked about it. Admittedly, she had pregnancy of 6 to 7 months when abortion was done. It does not look probable that the mother of the girl could not know about the pregnancy of 6 to 7 months of her daughter. This throws grave doubt on her testimony and the case of prosecution. She has said in her cross-examination that she had severe pain in her stomach and she was weeping and her mother enquired from her and she (P.W. 3) told her that Maheshwar had administered tablet to her for abortion of pregnancy. She has further said in her cross-examination that on hearing the sound of her weeping the neighbours had informed her mother but no one had come to her and even after the arrival of her mother no neighbour had come. It is strange that on hearing the sound of weeping of a girl neighbours will not come to see the girl and they will only inform her mother. She had said in her cross-examination that she was bleeding when her mother had arrived and no Dai or Chamain of the village had been called. It also looks surprising and improbable that a girl will suffer abortion of pregnancy of 6 to 7 months and no Dai or Chamain or expert hand will be called for her aid. She has also said in her cross-examination that in the morning her sister-in-law (Bhabhi) came to her and no one had taken her for medical treatment anywhere. It looks strange and highly improbable that a lady who suffers abortion of 6-7 months old pregnancy will not be provided medical treatment or medical aid. She has also said in her cross-examination that the child aborted was a male child. This shows that she had a developed pregnancy and the child had taken shape. She has said in her cross-examination that no medical treatment was given to her even after abortion. It does not look probable that after abortion of such a developed pregnancy a lady will not require any medical help. The above facts throw grave doubt on the evidence of P.W. 3 Tulaspati Kumari and the prosecution case.
10. It was submitted by the lawyer of the appellant that at page 359 of the book-Medical Jurisprudence and Toxicology by Modi 1977 Edition it has been mentioned that there are practically no drugs which, when administered by the mouth, act on the healthy uterus, and expel its contents, unless they are given in very large doses so as to have deleterious effect on the woman herself. P.W. 3 Tulaspati Kumari has said in her cross-examination that the child aborted was a male child. This shows that her pregnancy was in a developed stage. It has been stated in the F.I.R. (Ext. 3) that Maheshwar Sahu had given two tablets to the informant Tulaspati Kumari which had caused abortion to her. According to the F.I.R. and the evidence of P.W. 3, Tulaspati Kumari the accused had committed rape on her (Tulaspati Kumari) in the month of April.
According to the F.I.R. the informant had suffered abortion in the month of September and at that time she had pregnancy of about seven months. It was submitted by the learned lawyer of the appellant that if a lady conceives in the month of April she cannot have pregnancy of seven months in September and according to the plain calculation it can be of about five months only. There appears to be substance in the contention of the learned lawyer of the appellant. It may be mentioned here that the father, mother or sister-in-law (Bhabhi) of the informant (victim girl) Tulaspati Kumari have not been examined by the prosecution in this case as a witness. P.W. 3 Tulaspati Kumari has said in her cross-examination that her mother was with her at the time of her abortion and her sister-in-law (Bhabhi) had come in the morning. When her mother was with her at the time of her abortion, she should have been examined by the prosecution as a witness. But the mother and sister-in-law (Bhabhi) of the informant have not been examined as a witness on behalf of the prosecution in this case. P.W. 3 Tulaspati Kumari has said in her evidence that no medical treatment was given to her. She has also said that no Dai or Chamain had been called. It is strange and improbable that a lady who will suffer abortion of an advanced stage of pregnancy, will not be provided any medical help and no Dai or Chamain will be called. The above facts and circumstances throw grave doubt on the testimony of this witness (P.W. 3) and the prosecution case. The Doctor (P.W. 5 Dr. Mrs. Shakuntala Pandey) has said that in her opinion it was not a case of recent rape. According to her (P.W. 5) in her opinion signs of recent abortion were not present and by 'recent' she means 15 days. P.W. 5 Dr. Mrs. Shakuntala Pandey has stated that as per abdominal examination nothing abnormal was detected. When the informant Tulaspati Kumari was raped by the accused in the month of April, she should have told about it to her family members and she should have informed her family members when she knew that she had become pregnant. P.W. 3, Tulaspati Kumari has stated that Maheshwar Sahu used to call her Bua and she used to call him Beta and in the relation of Pattidari she happens to be her Bua. The above facts and circumstances throw grave doubts on the evidence of P.W. 3, Tulaspati Kumari and the prosecution case. In view of the above facts and circumstances and in view of the discussions made above, the evidence of P.W. 3, Tulaspati Kumari is not worthy of reliance. Father or mother or sister-in-law (Bhabhi) of the informant, Tulaspati Kumari have not been examined as a witness in this case by the prosecution. It cannot be inferred from the above evidence adduced on behalf of the prosecution that the accused Maheshwar Sahu has committed the offence as alleged. In view of the facts and circumstances of the case and in view of the discussions made above, and in view of the above evidence adduced on behalf of the prosecution to accused Maheshwar Sahu is entitled to benefit of doubt. Therefore accused Maheshwar Sahu is acquitted of the charges under Sections 376 and 312, I.P.C. Accordingly this criminal appeal is allowed and the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge is set aside. The accused-appellant who is on bail, is discharged from the liabilities of his bail bond.