Full Judgment
S.L. Kochar, J.
1. Appellant Kamal has filed this appeal against the judgment and findings dated 20th February, 1992 passed by IV Additional Sessions Judge, Dewas (Smt. Sharmishtha Dave) thereby convicting the appellant for the offence punishable under Sections 376 and 323 of IPC in Session Trial No. 5/99 and sentencing him 7 years RI and 6 months RI in default, fine of Rs. 500/-respectively.
2. The prosecution case in nutshell is that on 5-12-89 when prosecutrix Pavitrabai (P.W. 1) had gone to the field for grazing cattle alongwith her cousin sister Rajshri (P.W. 2), appellant Kamal was grazing cattle at nearby place. It is alleged by the prosecution that Rajshri was assaulted by lathi and therefore she ran away from the place. Thereafter, appellant Kamal caught hold of the prosecutrix and did forcible intercourse with her as well as unnatural act simultaneously. When the prosecutrix was raped by the appellant, at the same time, Pritam uncle of the prosecutrix came there, on seeing him, the appellant tried to run away from the place of the incident but immediately, thereafter, Sarpanch Vikram reached there in a jeep and rescued the appellant. Prosecutrix Pavitrabai (P.W. 1) came to her house and narrated the incident to her mother and father. They went to Police Station and lodged report Ex. P-4. The prosecutrix was sent for medical examination and Dr. Smt. Vidya Welankar (P.W. 9) medically examined her. Medical report is Ex. P-3-A. Prosecutrix was also sent for ossification test and Dr. Prakash Lakkad (P.W. 7) after her examination gave a report Ex. P-2 about her age. According to this report, prosecutrix was about 14-15 years of age. The Investigating Officer Ravidutta Sharma (P.W. 10) A.S.I. after recording the statements of the prosecution witnesses, seizure of cloths and slide of vaginal swab of prosecutrix. filed a charge-sheet before the Committal Court.
3. The Trial Court framed charges under Sections 376, 323 and 377, IPC against the appellant. The prosecutrix was examined in Court on 22-2-1992, it appears that additional charge for the offence punishable under Section 377, IPC was framed by the Trial Court on 22-1-1992 after the examination of the prosecutrix as witness in Court but in the order sheet dated 22-1-1992, the Trial Court, nowhere has disclosed the fact of framing of additional charge for the offence punishable under Section 377, IPC. The Trial Court ought to have specifically mentioned this fact in the order sheet with' reasons as to why framing of charge under Section 377, IPC was necessitated.
4. Appellant denied the charges levelled against him. According to his statement recorded under Section 313, Cr.PC the appellant has been falsely implicated in the case because he had prevented the prosecutrix from grazing her cattle in the field of Sarpanch, where he was working.
5. The prosecution examined as many as 11 witnesses for proving the guilt of the accused and exhibited 10 documents. Though the prosecution has filed Forensic Science Laboratory (FSL) report Ex. P-10, order sheet dated 22-2-1992 is not disclosing whether copy of the same has been supplied to the accused or not. The Trial Court after hearing the prosecution and the accused, pronounced the judgment on 20th February, 1992 convicting and sentencing the appellant as stated above. Appellant was acquitted of the charge under Section 377, IPC.
6. The contention of the learned counsel for the appellant is that the prosecutrix was habitual to sexual intercourse. Her version has not been corroborated by the medical evidence. The prosecutrix, at the outset, in examination-in-chief refused to identify the appellant. She has specifically stated that she did not see him prior to the date of examination as witness in Court. The First Information Report is a concocted piece of document because according to the prosecutrix it was got written and signed by her father Gudwasingh (P. W. 3). Gudwasingh (P.W. 3) father of the prosecutrix has also stated that he lodged the report in police station but no such report, lodged by her father, has been filed by the prosecution. This shows that initial report has been suppressed by the prosecution. Learned counsel for the appellant has also raised objection about perfunctory, improper and inadequate examination of the appellant under Section 313 of Cr.PC and also for not putting any question about Forensic Science Laboratory report. According to him his has prejudiced the case of the appellant.
7. Having heard the counsel for the appellant and panel lawyer appearing for the State, this Court is of the considered view that the conviction of the appellant is not sustainable. The prosecutrix in her statement in Paragraph 1 has specifically stated that she did not know the accused, who was present in Court and she did not seek him prior to the date of her examination in Court. According to Paragraph 9 of her statement FIR was lodged by her father, who is a teacher. The same thing has been stated by Gulabsingh (P.W. 3) in his deposition in Paragraph 4 that he lodged FIR in the police station and also signed the same but the said report has not been filed by the prosecution alongwith the charge-sheet. Another witness Pritamsingh (P.W. 8) has also stated in his deposition in Paragraph 5 that he lodged the report in police station and also signed the same.
8. In view of this fact, it appears that FIR was not actually recorded as per disclosure made by the prosecutrix but it was got recorded by her relations but the authorship has been given to her. The Supreme Court in a case of Mamdanlal Augusti, Appellant v. State of Kerala, Respondent (AIR 1980 SC 638) held:
'The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.
9. The narration given by the prosecutrix about the incident appears to be highly improbable and unbelievable. According to her, at the first instance the appellant committed sodomy with her and thereafter raped her. Her version is not corroborated by the medical evidence and as such no opinion about sodomy is given by Dr. Vidya Welankar (P.W. 9) in this regard. According to the prosecutrix at the time of incident, on hearing hue and cry her uncle Pritam (P.W. 8) and thereafter her mother Munnibai (P.W. 6) came at the place of incident and enquired about the incident upon which she disclosed about the incident but the statement of Munnibai (P.W. 6) mother of prosecutrix (Paragraph 4) is at variance with the statement of the prosecutrix. According to the mother of prosecutrix, she was searching the prosecutrix in the forest for half an hour and that the prosecutrix was found in unconscious condition. She further states that nobody was there near the prosecutrix and the prosecutrix regained consciousness after reaching at her house. More or less is the statement of Pritam (P.W. 8). The statements of both the witnesses are not indicating the fact of commission of forcible sexual intercourse as well as sodomy.
10. According to Dr. Vidya Welankar (P.W. 9) the prosecutrix was habitual to sexual intercourse though she was about 15 years of age and her secondary sex characters were not fully and properly developed. Doctor did not find any external or internal injury on her person. On overall evaluation of the prosecution evidence, version of the prosecutrix does not appear to be believable and the Trial Court has rightly disbelieved her testimony for the purpose of offence under Section 377, IPC but erred in relying on the same for the offence punishable under Sections 376, 323, IPC.
11. The Trial Court has committed an error in relying on F.S.L. report Ex. P-10. On original report no exhibit is marked nothing is mentioned in the judgment or in order-sheet showing its admission by accused. In Paragraph 12 of the judgment the Trial Court has relied on this report though no questions were put to the accused seeking his explanation in this regard. Law is well settled about placing reliance on the evidence and circumstances falling against the accused for the purpose of conviction unless the same is not specifically, distinctly and clearly put to the accused in his statement recorded under Section 313 of Cr.PC. I have gone through the statement of the accused formulated by Trial Court and the same clearly shows that specific questions about penetration of the male organ has not been framed and put to the accused by the Trial Court and no questions have been put to the accused about the presence of semen and human spermatozoa on Forensic Science Laboratory report, nothing has been asked to accused about this report. This has clearly prejudiced the case of the appellant and the appellant who is a rustic villager and illiterate person is entitled to get benefit of the same. The Hon'ble Supreme Court has discussed the law about recording the statement of accused in the judgments rendered in the cases of Tara Singh v. The State (AIR 1951 SC 441), Moseb Kaka Chowdhry and another v. State of Bengal (AIR 1956 SC 536), Rama Shankar Singh and Ors. v. State of Bengal (AIR 1962 SC 1239). The ratio of these decisions are duly applicable to this case.
12. I have carefully gone through the F.S.L. report showing presence of human semen and spermatozoa, Article 'A', Slide Articles 'B-1' and 'B-2'. In the present case, the Trial Court has not formulated the question properly as per the evidence given by the witnesses in examination-in-chief. The Trial Court has placed reliance on the testimony of Rajshri (P.W. 2) but this witness is not the eye-witness of the incident. According to her statement the moment the appellant reached in the forest, she ran away from the said place. This witness has been contradicted on material particular from her case diary statement Ex. D-l. In examination-in-chief the witness stated that the appellant started belabouring the prosecutrix and also made her run away from the place of the incident by assaulting but this fact is not mentioned in her case diary statement. The prosecution cannot get strength from the testimony of this witness. According to this witness she is more than 16-17 years elder than the prosecutrix whereas her own age is recorded, in her deposition, 16 years.
13. In view of the foregoing factual and legal position involved in the present case, the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt. Hence, the appellant is entitled for benefit of doubt and appeal deserves to be accepted.
14. Accordingly, this appeal is allowed. Conviction of the appellant for the offence under Sections 376 and 323, IPC is set aside. Appellant is on bail, his bail bonds stands discharged. The amount of time, if deposited, be refunded to the appellant.
15. Criminal Appeal allowed.