JUDGMENT
R.S. Garg, J.
1. The appellant, being aggrieved by the judgment dated 21-1-97, passed in Sessions Trial No. 21/96 by the learned Sessions Judge, Sehore, convicting the appellant under Section 376(2)(f) of Indian Penal Code, sentencing him to undergo R.I. for ten years and pay fine of Rs. 2,000/- in default of payment of fine to undergo two months S.I. has filed this appeal.
2. The prosecution case in brief is that P.W. 2 Kashibai the minor prosecutrix, when was carrying food to her father on 6-1-96 at about 4-5 p.m., the accused Babbu @ Babulal caught hold of her, used abusive language, asked her to hold her male organ and thereafter took her to the nearby sugar cane field, fell her on the ground and committed rape upon her. The girl after suffering the worst experience of her life went to her father and brothers, narrated the entire incident to them, and thereafter lodged the first information report. After receiving the report of a cognizable offence, the girl was sent for her medical examination. Dr. (Smt.) Savita Shrivastava (P.W. 1) gave her positive report. The spot memo was prepared; accused was arrested and statements of the witnesses were recorded. On completion of the investigation, challan was filed against the accused. The trial Court convicted and sentenced the accused as referred to above, being aggrieved by the said conviction and sentence, the appellant has filed this appeal.
3. Submission of learned counsel for the appellant is that as P.W. 3 Shankarlal father of the girl, P.W. 2 the prosecutrix herself and P.W. 5 Dilipsingh brother of the prosecutrix have turned hostile, and as P.W. 2 the prosecutrix in the cross-examination did not allege that sexual assault was made upon her, the trial Court was wrong and unjustified in convicting the appellant.
4. Learned counsel for the State submits that statements of P.W. 2 Kashibai were recorded on 25-6-96, but her cross-examination was resumed on 14-11-96, According to him, P.W. 3 Shankarlal was examined on 26-6-96 and P.W. 5 Dilipsingh was examined on 17-9-96, and thereafter the cross-examination was resumed, therefore, the Court must presume that meanwhile some water passed under the bridge and, therefore, the prosecutrix was not supporting the case of the prosecution. I have heard the parties at length and have perused the records.
5. From the statements of P.W. 1 Dr. (Smt.) Savita Shrivastava, it appears that on physical examination of the prosecutrix, she found a fresh tear of hymen and fresh bleeding. From her statements, it clearly appears that sexual intercourse was committed with the girl. From her statements, it clearly appears that sexual intercourse was committed with the girl. From the statements of P.W. 4 Dr. Mahendra Jain, it appears that the girl was below 12 years of age.
6. Unfortunate scenes start now. P.W. 3 Shankarlal father of the girl was examined on 26-6-96. In the examination-in-chief itself, he did not support the prosecution case. According to him, he was feeling little unwell, therefore, he was lying in his field. His daughter came with the food, but as the witness was not ready to eat the same, the girl started playing in the fields. Thereafter his wife and the son also came to the fields. The girl did not tell her about anything. The girl was thereafter taken to their house by his son. After he was declared hostile in the cross-examination by the public prosecutor, he admitted the fact that the girl was bleeding and on the enquiry, the girl informed him that she had suffered some injury by a spike of sugar cane. True it is that rape , was committed upon the girl, but the person who was to feel aggrieved, for the reasons best known to him, did not support the prosecution. P.W. 5 Dilipsingh is the real brother of the prosecutrix. He had also turned hostile because according to him, he was only informed by the prosecutrix that the accused had given two slaps to the prosecutrix. In the cross-examination by the Public Prosecutor, he simply admitted that some report was lodged, but he was not ready and willing to say that what was the nature of the report. In the cross-examination, he further admitted that his sister informed him that after the accused slapped her, she fell on a spike of sugar cane and suffered some injuries. This witness, though brother of the prosecutrix, unfortunately did not support the prosecution. True it is that P.W. 3 and P.W. 5 were examined after recording of the examination-in-chief of P.W. 2. In the examination-in-chief the prosecutrix clearly stated that the accused caught hold of her, fell her on the ground and thereafter committed rape upon her. According to her, she went to the fields and informed about the incident to her father and thereafter also informed about the incident to his brother and mother. The statements of these two witnesses have been offered by the prosecution, but unfortunately they have taken a somersault. The mother has not been examined. The cross-examination was resumed on 14-11-96. The prosecutrix, after taking a complete somersault, started asserting that the statements made in the examination-in-chief were not correct. In paragraph 15, she asserted that she generally used to go from the fields of accused Babbu @ Babulal, and on that fateful day she was going from the fields of the accused; the accused took an exception and thereafter gave her two slaps; thereafter she went to her father’s fields and informed the father and brother Jagannath that the accused had slapped her. In paragraph 16, she stated that the report was lodged by Dilipsingh and Jagannath. Dilipsingh has disowned any such report and Jagannath has not been examined by the prosecution. According to her, the Thanedar asked her to affix her signatures on the report which she accordingly did. In para 17, giving a death blow to the case of the prosecution, she stated that earlier statements were given by her at the instigation of her mother. She stated that the statements being given by her were correct in comparison to what was already stated in the Court. She also asserted that her mother wanted the accused to go to jail because he had slapped the prosecutrix. In para 18, developing a new story, she started saying that she suffered some injury by a stump of some tree. In para 21 she stated that she was medically examined because she had suffered some injury by a spike of maize. The prosecution finding that the prosecutrix had turned hostile and was not supporting the prosecution case, took permission of the Court, declared her hostile, and cross-examined her. In the cross-examination by the prosecution, she again started supporting the prosecution. She stated that the accused committed rape upon her. In para 25, she stated about the report and in para 26, she stated that after the alleged incident and her statements in the Court, the accused was not taking any exception to her going through the fields of the accused. In para 27, she again stated that nobody told her to talk about the maize spike, but she of her own was talking about it.
7. The question for consideration before the Court is whether the prosecutrix could be relied upon in toto and the accused should be convicted.
8. Learned counsel for the State submits that as there was a long gap between the examination-in-chief and the cross-examination of the witness, she might have been won over. In the opinion of this Court, the possibility cannot absolutely be ruled out, but the fact remains that the girl did not support the prosecution. Her brother and father who were examined before her cross-examination also did not support the prosecution. It is an unfortunate case where the prosecutrix has turned hostile and is not supporting the prosecution, but the law has to take its own course. The accused cannot be convicted if the Court is morally convinced. There must be clinching, cogent and convincing evidence before the Court to record a finding that the accused and only the accused was the only author of the crime. If the examination-in-chief of the prosecutrix with the medical report is seen, this Court would have no hesitation in holding that the accused committed rape upon the prosecutrix, but the law says that the complete evidence of a witness must be seen. If the first cross-examination of the prosecutrix is read with the statements of P.W. 3 Shankarlal and P.W. 5 Dilipsingh, it would appear that to encash some opportunity, the accused was falsely implicated. The principle of Criminal Jurisprudence reminds this Court that if two views are possible, then the one which favours the accused, must be adopted.
9. It is an unfortunate case where the crime shall remain unpunished because the prosecution witnesses have turned hostile. It is an unfortunate part of our legal system that a person who commits crime or is facing a trial is provided the guards and all other facilities. He stays in the police custody or in jail. None can approach him, but the possibility of his relations approaching and intimidating the complainant and the witnesses is always there. If the law says that an accused must be kept in safe custody, then it is also the duty of the police and the administration to provide some protection to the witnesses who are ready and willing to depose against an accused, but are unable to do so because they are always afraid of something worst to come. With a heavy heart and bound by law, I have to acquit and accordingly acquit the accused. The appeal is allowed. The appellant is in jail. He be released immediately, if not required in any other case.