Conviction under S.376(1), IPC without sufficient evidence, specifically without the examination of the victim, is unsustainable.

1. This appeal is directed against the judgment and order, dated 29.10.1999 passed by Additional Sessions Judge Balod, District Durg in Sessions Trial No. 124/1998 convicting the accused / appellant under S.376 (1), IPC and sentencing him to undergo rigorous imprisonment for seven years.

2. Case of the prosecution in brief is that on 11.2.1997 a written report Ex. P - 5 was made by the prosecutrix aged about 23 years at the relevant time to the effect that about 7 months prior thereto she was subjected to forcible sexual intercourse by the accused / appellant. Based on the said written report FIR Ex. P - 6 was registered against the accused / appellant for the offence under S.376, IPC. Prosecutrix was medically examined on 11.2.1997 itself by Dr. (Smt.) Shashi Cladiyus (PW - 1) who gave her report Ex. P - 1. Accused / appellant was also medically examined by Dr. S. K. Meshram (PW - 2) who gave his report Ex. P -

3. After completion of investigation, charge - sheet was filed by the police for the offence punishable under S.376 (1), IPC followed by framing of charge accordingly.

3. So as to hold the accused / appellant guilty, prosecution has examined 08 witnesses in support of its case. Statement of the accused / appellant was also recorded under S.313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

4. It is relevant to note here that the prosecutrix could not be examined in the Court as she died on 21.09.1998 when the trial was in progress.

5. After hearing the parties, the trial Court has convicted and sentenced the accused / appellant as mentioned above in paragraph No. 1 of this judgment.

6. Counsel for the accused / appellant submits as under:

(i) That present is a case of no evidence but even then the accused / appellant has been convicted under S.376(1), IPC on the basis of written report Ex. P - 5, which is erroneous and illegal.

(ii) That in the absence of examination of the prosecutrix, the accused / appellant could not have been convicted.

7. On the other hand, counsel for the respondent / State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused / appellants under S.376(1), IPC are strictly in accordance with law and there is no infirmity in the same.

8. Heard counsel for the parties and perused the evidence on record.

9. Dr. (Smt.) Shashi Cladiyus (PW - 1) is the witness who medically examined the prosecutrix and gave report Ex. P - 01 stating that there was no injury on her body; her breasts were fully developed and she was carrying pregnancy of 28 weeks. Vagina of the prosecutrix, according to this witness, was admitting two fingers easily and that she was habitual to sexual intercourse. Age of the prosecutrix as per the evidence of this witness was in between 20 and 25 years at the relevant time. Dr. S.K. Meshram (PW - 2) is the witness who medically examined the accused / appellant and gave report Ex. P - 3 stating that he was capable of performing sexual intercourse. N. R. Nishad (PW - 3) is the head constable who recorded FIR on the basis of written report. Dukhuram Sahu (PW - 4) - the brother - in - law of the prosecutrix is a hearsay witness. Nirmal Das (PW - 5) and Jankilal Sahu (PW - 7) are the witnesses to Panchayat who have stated that the prosecutrix had disclosed before them that she was pregnant through the accused / appellant. Pamia Bai (PW - 6) the mother of the prosecutrix is a hearsay witness according to whom the prosecutrix had informed her about being pregnant through the accused / appellant. Bachau Pandey (PW - 8) is the head constable who did the investigation.

10. This Court has gone through