Decided on July 13,2005

SURESH Appellant
State Of C G Respondents


- (1.) THE appellant has preferred this criminal appeal against the judgment dated 24th December 2002 passed by the learned Additional Sessions Judge, Rajnandgaon in S.T. No. 66/02 convicting the appellant under Section 376 and 511 of the Indian Penal Code and sentencing him to undergo RI for five years with fine of Rs. 10,000/-, in default of payment of fine to further undergo RI for one year.
(2.) THE prosecution case in brief is that on 18-02-2002 the appellant took the prosecutrix aged about five years and committed rape with her in his house. At the time of incident the father and mother of the prosecutrix had gone out in connection with their work. When they returned back, the prosecutrix narrated the incident to her parents and report of the same was lodged with the police station Basantpur, Rajnandgaon, on 18-02-2002 at about 23.00 hours vide Ex. P/6 by the father of the prosecutrix namely Teekamlal Nirmalkar whereupon offence under Section 376 of the IPC was registered against the appellant. The prosecutrix was examined by the doctor and report of the doctor is Ex. P/4. During investigation vaginal swab of the prosecutrix prepared by the doctor and underwear of the prosecutrix were seized vide seizure memo of Ex. P/3 and the same were medically examined, report of which is Ex.P/2. Thereafter, statements of the witnesses were recorded and chargesheet under Section 376 of the IPC was filed and the case was committed to the Sessions Court. The learned Additional Sessions Judge, framed charges under Section 376 & 511 of the IPC and the appellant pleaded not guilty. During trial prosecution examined witnesses namely Gopiram P.W. 1, Dr. Lohiya P.W. 2, Yashwant Rao Deshmukh P.W. 3, lady doctor K. Gangajali Wale P.W. 4, Ashok kumar P.W. 5, prosecutrix Sushila Bai P.W. 6, mother of the prosecutrix Mukhi Bai P.W. 7, father of the prosecutrix Teekamlal Nirmalkar P.W. 8 and grand-mother of the prosecutrix Dulari P.W. 9 and after recording statement of the accused, the Court below found the appellant guilty and convicted him-as above. The allegations against the appellant is that when the parents of the prosecutrix had gone out for their work, he took the prosecutrix to his house and committed rape upon her by penetrating his penis in the vagina of the prosecutrix. The incident was narrated by the prosecutrix to her parents on their return. The trial Court has convicted the appellant by relying upon the statements of P.W. 6 Sushila Bai, P.W. 9 Dulari, P.W. 8 Teekamlal and P.W. 7 Mukhi Bai.
(3.) LEARNED counsel for the appellant submits that the conviction is based on the statements of P.W. 6 as there is no eyewitness to the incident except the prosecutrix who is aged about five years. He further submits that looking to the age of the prosecutrix, her statement should be minutely examined with caution, as possibility, of tutoring cannot be ruled out. It is further argued that even though the prosecutrix was aged five years, oath was administered to her by the trial Court without ascertaining whether she understands the meaning of oath or not. Learned counsel submits that the Court below has convicted the appellant ignoring the material discrepancy and omission present in the statements of the witnesses on the basis of partisan appreciation of the evidence. It is also contended that as the appellant was arrested after about two months of the said incident and no explanation has been given by the prosecution and further that the investigating officer has not been examined, adverse inference ought to have been drawn against prosecution and the appellant ought to have been given the benefit of doubt.;

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