Decided on October 27,2018

Raju Salame Appellant


J.P.GUPTA, J. - (1.) The appellant has preferred the present appeal being aggrieved with the impugned judgment dated 26.2.2013 passed by the Ist Additional Sessions Judge, Multai, District Betul in S.T. No.36/2013 whereby the appellant has been convicted under Section 376 of IPC and sentenced to undergo RI for 10 years and fine of Rs. 20,000/-, in default to suffer further 3 months RI and under Section 450 of IPC and sentenced to undergo RI for 5 years and fine of Rs. 1,000/- in default to suffer further 15 days RI as stipulated in the judgment.
(2.) Facts giving rise to this appeal are that prosecutrix is daughter of complainant Ujariya Bai. Prosecutrix is deaf and dumb and also suffering from 'Cerebral Palsy'. On 17.12.2012 complainant left the prosecutrix alone in the house situated in the village Somgarh, police station Multai and went to village Sawangi and when she came back on 21.12.2012 to her village. Laksu Bai and Saya Bai told that in her house the appellant was found committing sexual intercourse with the prosecutrix and they separated them. Thereafter, on 24.12.2012, prosecutrix's mother Ujariya Bai lodged written report at Police Station Multai on the basis of which FIR Exh. P 6 at Crime No. 762/12 under Section 376, 450 of IPC was registered. The prosecutrix was medically examined and sample of vaginal swab was taken and the accused was arrested and he was also examined and sample of his semen was taken. The statement of the prosecutrix and aforesaid women were taken. After completion of the investigation, charge sheet was filed before the JMFC, Multai. On committal, case was tried by the Ist Additional Sessions Judge, Multai, District Betul. The charges were framed against the appellant, he abjured his guilt and claimed to be tried. His defense is that he has been falsely implicated on the instance of the Laksu Bai. As there was a dispute with her with regard to transaction of the money. The learned trial Court after completion of the investigation came at the conclusion that the appellant entered in the house of the prosecutrix with a view to commit offence of rape and committed rape with the prosecutrix and convicted and sentenced as mentioned earlier, hence this appeal.
(3.) The finding of the learned trial Court has been assailed in this appeal on the ground that the finding of the trial Court are contrary to the evidence on record. Dr. Lipi Padmakar, (P.W. 14), who examined the prosecutrix has stated that hymen of prosecutrix was old ruptured, there was no sign on the person to suggest sexual intercourse with the prosecutrix soon before her examination. Laksu Bai (P.W. 4) and Sara Bai (P.W. 3) gave information about the incident to the mother of prosecutrix Ujariya Bai (P.W. 5) have turned hostile, do not support the prosecution version. So far, the FSL report is concerned, the same is insignificant as the sample of vaginal swab of the prosecutrix has not been taken immediately after the incident, therefore, it cannot be said that spermatozoa found on the vaginal swab of the prosecutrix belonged to the appellant. Then only the statement of the prosecutrix remained on record for consideration and the statement of prosecutrix (P.W. 1) has been recorded with assistance of interpreter of sign language Dharmendra Tyagi (P.W. 2) and if the statement of (P.W. 1) should be scanned sincerely. There is nothing to suggest or indicate that the appellant committed sexual intercourse with her. Apart from it, the statement of the witness have not been recorded as per the requirement of the law. As per the provision under Section 119 of Evidence Act, if the witness is dumb witness, if he is unable to speak, he may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and sign made in the open court, evidence so given shall be deemed to be oral evidence.;

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