SANTOSH KUMAR PACHORI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Santosh Kumar Pachori was put on trial for offence under Sections 450 and 376 of the Indian Penal Code. First Addl. Sessions Judge, Hoshangabad by his judgment dated 20th December, 1988 passed in Sessions Trial No. 104/87, acquitted him of the aforesaid charges but found him guilty for offence under Section 354 of the Indian Penal Code and sentenced him for the period already undergone by him as under-trial prisoner. State being aggrieved by his acquittal, has preferred appeal, after obtaining the leave of Court and the same has been registered as Criminal Appeal No. 582/89. Santosh Kumar Pachori, hereinafter referred to as accused, being aggrieved by his conviction, has also preferred appeal, which has been registered as Criminal Appeal No. 204/89. Both the appeals arise from the same judgment, hence they are being disposed of together.

(2.) Accused Santosh Kumar Pachori and Mansingh, the father of the prosecutrix Ku. Nirmala Singh (PW 7), were at the relevant time posted as Forest Guard at Adamgarh Depot. Nirmala Bai used to reside in a house constructed inside the forest depot along with her parents. On 5-5-1987, her parents had gone to their native place in the State of Uttar Pradesh along with their youngest son; leaving behind their son Arvind (PW 8), prosecutrix Nirmala (PW 7) and another daughter Anju. Parents of the prosecutrix returned from their leave on 16-5-1987 when Man Singh (PW 6) was informed by his wife what was narrated to her by his daughter Nirmala. Prosecutrix Nirmala narrated that on 8-5-1987 accused came to her house and asked her to open the door which was declined by the prosecutrix at which, accused stated that her brother had asked for the basket to bring vegetables and at this, her sister Anju opened the door. Prosecution story further is that after the accused came inside the house, he shut the door and in spite of resistance by the prosecutrix, she was subjected to forcible sexual intercourse. According to the prosecution, Anju, in order to save her sister, had bitten the accused. According to the prosecution because of sexual intercourse, semen and blood were littered on the clothes of the prosecutrix as also the bed-sheet and the accused had washed the same. According to the prosecution when the brother of the prosecutrix Arvind returned, she narrated the incident to him, who made protest but was threatened by the accused. On being informed about the incident, the father of the prosecutrix Man Singh (PW 6) lodged a report with the Hoshangabad Police Station on 17-5-1987.

(3.) On receipt of the report, prosecutrix was sent for medical examination which was conducted by P.W. 2 Dr. Gauri Saxena, who gave her report (Ex. P/2). The doctor found redness on both lips of libia majora and white discharge present around it. The doctor further found tear of hymen at 2 O'clock position which was healing. This doctor further stated that the vagina admits little finger with difficulty and the girl had severe pain during insertion of little finger. In the opinion of the doctor rape was committed on the prosecutrix within 8 to 10 days. It is relevant here to state that during the course of investigation, the investigating agency had seized the under-garment as also the towel and bed-sheet which had blood and semen stains and sent the same for chemical examination. The investigating agency had also seized blood-stained earth from the place of occurrence and that was also sent for chemical examination. Accused was arrested on 17-5-1987 and his under-garment and vest were also seized and were sent for chemical examination. The Forensic Science Laboratory, Sagar in its report has found semen on the under-garment of the prosecutrix and blood on the earth seized from the place of occurrence and over the vest of the accused. After investigation, Police submitted charge-sheet against the accused under Sections 450 and 376 of the Indian Penal Code and he was ultimately committed to the Court of Session to face the trial. Accused denied to have committed any offence and his plea is that on 17-5-1987, he had cracked joke with the mother of the prosecutrix Parvati, which caused annoyance to her and she threatened to implicate him and as threatened, he has been falsely implicated in the case. He has further placed on record the service book of Man Singh to contend that he has not got any leave in the month of May, 1987.