JUDGMENT
S.K. Pande, J.
1. A.S.J., Jabalpur vide judgment dated 18-12-2001 in S.T. No. 669/2000 recording conviction under Sections 376(1), 506, 324, and 323, IPC sentenced the accused/appellant with R.I. of 10 years, one year, two years, six months respectively. In addition he has been directed to pay fine of Rs. 25,000/-, Rs. 1000/- respectively under Section 376(1) and 324, IPC and in default to suffer imprisonment for a further period of one year, one month respectively. Being aggrieved the accused/appellant has preferred this appeal under Section 374(2) of the Cr.PC.
2. The prosecution case in brief, is that accused/appellant is real uncle of prosecutrix Sujata (P.W. 6). He lived with the family consisting of Ambika Thakur, mother, Sujata and Sanyogita daughters. Sujata (P.W. 6) on 8-9-2000 lodged a report (Ex. P-10) at Kotwali Police Station, Jabalpur that at about 3 A.M., the accused/appellant molested her and on being resisted inflicted injuries by sword. Thereafter, the accused/appellant removed her garments and forcibly committed sexual intercourse. On this report, she was sent for medical examination. A simply injury on her body was found and no definite opinion as to forcible sexual intercourse has been recorded by woman Assistant Surgeon in her report (Ex. P-1). Sanyogita was also examined and simple injuries on her body were found as per report (Ex. P-3). On the basis of statement of Sujata (P.W. 6) a case has been registered under Sections 376(1), 506, 324 and 323, IPC and the accused/appellant has been arrested. He also was sent for medical examination. Thereafter completing the investigation, he has been charge-sheeted accordingly. The accused/appellant abjured the guilt and stated that he is a family member of Ambika Thakur (P.W. 5) and daughters Sujata and Sanyogita. There had been a quarrel of which the false report has been lodged to the effect that he committed sexual intercourse with Sujata (P.W. 6).
Believing the statements of Sujata (P.W. 6), Sanyogita (P.W. 7) and Ambika Thakur (P.W. 5), the Court below held him guilty under Section 376(1), 506, 324 and 323, IPC and sentenced him with R.I. and to pay fine, in default to suffer further imprisonment as indicated above.
3. It is admitted that accused/appellant is real brother of late husband of Ambika Thakur (P.W. 5). This being so, he is real uncle of Sujata (P.W. 6) and Sanyogita (P.W. 7). It is further admitted that accused was living with the family consisting of Ambika Thakur (P.W. 5), Sujata (P.W. 6) and Sanyogita (P.W. 7). The prosecution originates from the report (Ex. P-10) said to have been lodged by Sujata (P.W. 6) on 8-9-2000 at 6.15 AM. In this report he has stated to the police that while she was sleeping on floor, being touched by accused/appellant resisted. The accused/appellant took the sword and threatened her with dire consequence. He inflicted injury on her leg by sword. Thereafter removed the undergarment and by inserting male organ in her vagina, committed sexual intercourse. On this report she was sent for medical examination where the under garments of Sujata (P.W. 6) were taken and delivered to the police. As per this report (Ex. P-10), she narrated the story to her mother Ambika Thakur (P.W. 5) and sister Sanyogita (P.W. 7). The statements of Ambika Thakur (P.W. 5), Sujata (P.W. 6) and Sanyogita (P.W. 7) are completely in variance from the story narrated by Sujata (P.W. 6) to the police at the time of lodging report, FIR (Ex. P-10). As stated by these witnesses at about 12 P.M., accused/appellant being drunk came. He was served with food. However, he has thrown the THALI and started quarreling. He slapped Sanyogita (P.W. 7) and directed Sujata (P.W. 6) to sleep with him. Thereafter he removed the clothes of Sujata (P.W. 6) and forcibly committed sexual intercourse. He compelled her to remain with him through out the night and repeatedly raped her. He even committed sexual intercourse per anus. There is nothing in Ex. P-10 that Sanyogita (P.W. 7) was also beaten by him. However, Sanyogita (P.W. 7) states that the accused/appellant inflicted injuries by sword to Sujata (P.W. 6). Thereafter, she was also beaten and in presence of Ambika Thakur (P.W. 5) mother and Sujata has been taken to the room where she was made naked. Accused/appellant then forcibly committed sexual intercourse with Sujata (P.W. 6) in presence of Ambika Thakur (P.W. 5) and Sanyogita (P.W. 7) herself. Ambika Thakur (P.W. 5) also has stated that in her presence Sujata (P.W. 6) was made naked by removing her cloth and the accused/appellant forcibly committed sexual intercourse with her.
4. From the statement of Sanyogita (P.W. 7) and Sujata (P.W. 6), it appears that injuries to them were caused by accused/appellant. As per report (Ex. P-1) a simple incised wound 1 c.m. x 1/2 c.m. x 1/4 c.m. was found on her body. As per report (Ex. P-3) abrasion and other simple injuries to Sanyogita (P.W. 7) were noticed. Sujata (P.W. 6) was examined by the woman Assistant Surgeon Dr. Mamta Gupta (P.W. 9). She has stated that except for the incised wound aforesaid, there were no injuries on her body. As per internal examination there was no injury to vagina and hymen was intact. The vagina was permitting only one finger. The slides were prepared and clothes taken from Sujata were sealed and handed over to the police. Dr. Mamta Gupta (P.W. 9) has specifically stated that no definite opinion can be given about the sexual intercourse said to have been committed with Sujata (P.W. 6).
5. The vaginal slides underwear and Kurd of Sujata (P.W. 6) were sent to the FSL for examination. The report (Ex. P-17) is to the effect that on these seminal stains and human spermatozoa were not seen. The statement of Dr. Mamta Gupta (P.W. 9) with reference to her report (Ex. P-l) and the report of FSL make it clear that there had been no sexual intercourse with her. On the background of facts emerging from medical examination report (Ex. P-3) and FSL report (Ex. P-17) the story narrated by Sujata (P.W. 6) seems to be completely unreliable. In FIR (Ex. P-10) after the incident, it was narrated by her to Ambika Thakur (P.W. 5) and Sanyogita (P.W. 7). However, Ambika Thakur (P.W. 5), Sujata (P.W. 6) and Sanyogita (P.W. 7) have stated that in presence of Ambika (P.W. 5) and Sanyogita (P.W. 7), Sujata was dragged and by removing clothes, w’as made naked by the accused/appellant. Thereafter, in their presence only detaining her throughout the night accused/appellant had forcibly committed sexual intercourse with her. The statements are in complete variance from the narration made by Sujata (P.W. 6) to the police while recording the FIR (Ex. P-10).
6. Sujata (P.W. 6) in her cross-examination has stated that the accused/appellant always treated her and Sanyogita as his daughters. It is clear from the statements of Ambika Thakur (P.W. 5), Sujata (P.W. 6) and Sanyogita (P.W. 7) that on-the death of Rajendra Singh, husband of Ambika Thakur (P.W. 5) and father of Sujata (P.W. 6) and Sanyogita (P.W. 7), it was accused/ appellant who helped the family and brought them from Mandla to Jabalpur. From the facts emerging in Para 15 of the cross-examination of Ambika Thakur (P. W. 5), it is clear that Shailendra, Vijay elder brothers of accused/appellant were living in the other part of the house where Ambika Thakur (P.W. 5) lived with her daughters. Sujata (P.W. 6) and Sanyogita (P.W. 7). As stated the accused/appellant detained Sujata (P.W. 6) throughout the night, however, Ambika Thakur (P.W. 5) never called Shailendra and Vijay elder brothers of accused/appellant for help. It has also come that the grand-mother of Sujata (P.W. 6) and Sanyogita (P.W. 7), also was living with her sons Shailendra and Vijay. She was also not called for assistance. All these make it unnatural and unbelievable that accused/appellant forcibly committed sexual intercourse with Sujata (P.W. 6).
7. In Kamal v. State of M.P., 2002(1) M.P.H.T. 169, in similar circumstances it has been held that where the narration given by the prosecutrix about the incident is highly improbable and unbelievable and it is not corroborated by medical evidence and the statements of other witnesses are at variance with the earlier narration of incident by the prosecutrix in FIR, it must be held that the prosecution has failed to prove the guilt of the accused beyond all reasonable grounds. Accused/appellant in these circumstances is entitled for acquittal under Section 376(1) of the IPC.
8. From the statements of Sujata (P.W. 6) and Sanyogita (P.W. 7), it is clear that the accused/appellant being drunk, quarrelled with the family members and voluntarily caused simple hurt to Sujata (P.W. 6) and Sanyogita (P.W. 7). A simple incised wound on medical examination was found vide Ex. P-1. Dr. J. Arora (P.W. 11) on examination found simple injuries to Sanyogita (P.W. 7). As per description in report (Ex. P-4), the injuries of Sanyogita (P.W. 7) were abrasion and swelling on her left ankle joint. The statements of Ambika Thakur (P.W. 5), Sujata (P.W. 6) and Sanyogita (P.W. 7) to this effect must be believed that the accused/appellant voluntarily inflicted the aforesaid injuries to Sujata (P.W. 6) and Sanyogita (P.W. 7). Accordingly, he is guilty of offence under Sections 324 and 323, IPC.
9. Consequently, the appeal succeeds and the accused/appellant is acquitted of the charge under Sections 376(1) and 506, IPC. His conviction under Section 324 and 323, IPC are maintained. However, the sentence awarded by the ASJ seems to be highly excessive under Sections 324 and 323, IPC, the accused/appellant is sentenced to undergo R.I. for a period of six months on each count. The sentence shall run concurrently and to be adjusted in the period spent in detention.
