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2000 DIGILAW 1137 (RAJ)

Raj Kumar @ Raju v. State of Rajasthan

2000-09-12

G.L.GUPTA

body2000
JUDGMENT 1. - This criminal appeal under section 374 Cr.P.C. arises out of the judgment dated 2.9.1997 of the learned Additional Sessions Judge, Jaipur City, Jaipur, convicting the appellant under section 376 IPC and sentencing him to 7 years RI and fine of Rs. 500/-. 2. The short facts of the case are these. On 4.9.1995 Chhaju (8 years) and his sister Chhota (14 years) had alighted from the bus at Nayla turn to go to Teja Baba. It is stated that accused-Raj Kumar chased them from the Nayla Mod and after covering some distance, he scolded Chhaju, who, being frightened, ran away. Thereafter, the accused took Chhota at some distance and committed rape on her at knife point. The First Information Report Ex.P/4 was lodged within three hours of the occurrence at Police Station Amer by Sohan Lal (PW 4). During investigation, the police got, Chhota medically examined by Dr. Pushpa Nagar (PW 8), interrogated the witnesses and arrested the accused. After the completion of the investigation, a challan was filed. 3. To a charge under section 376 IPC, the accused-appellant pleaded not guilty. The prosecution examined Chhaju (PW 1), Chhota (PW 2), Ram Sahai (PW 3), Sohan Lal (PW 4), Gopal (PW 5), Kalyan (PW 6), Om Prakash (PW 7), Dr. Smt. Pushpa Nagar (PW 8), Ashu Singh (PW 10), Ram Swaroop (PW 11) and Dr. Sahib Singh (PW 12). Accused in his statement under section 313 Cr.P.C. denied the accusation. He stated that he has been falsely implicated in the case because the persons of Mali community are inimical to him. He also stated that on the date of occurrence, he was at Jaipur to attend a Court case. He examined Ram Chandra (DW 1), Ram Kalyan (DW 2), Babu Lal (DW 3) and Ram Kishore (DW 4) in his defend. The learned trial judge held that Mst. Chhota was less than 16 years of age at the time of occurrence. He further held that the accused had committed rape on Chhota. He, therefore, convicted and sentenced the accused-appellant as stated above. 4. Shri Gupta, learned counsel for the appellant contended that the age of Chhota could be more than 16 years as the Medical Officer admits that there could be difference of one year in the age given by him. He further held that the accused had committed rape on Chhota. He, therefore, convicted and sentenced the accused-appellant as stated above. 4. Shri Gupta, learned counsel for the appellant contended that the age of Chhota could be more than 16 years as the Medical Officer admits that there could be difference of one year in the age given by him. He urged that the prosecution has not been able to prove by positive evidence that intercourse had taken place. Pointing out that Chhota did not report the matter to the camel man whom she had seen, he argued that a false case has been lodged against the accused after the relations of the prosecutrix reached the spot. In this connection, he pointed out that the parents of the girl have not been examined and one lady, who had filed a case against the accused used to attend the Court along with Chhota. Shri Gupta pointed out that though according to Chhota, she was dragged and rape was committed on the rough ground, yet no injury was found on her person, he canvassed that Chhota was not subjected to sexual intercourse. 5. The learned Public Prosecutor, on the other hand, contended that the prosecution has successfully brought home the guilt against the accused. He submitted that there could not be any reason for the prosecutrix to falsely implicate the accused, if the rape was committed by some other person. In this connection, he pointed out that the accused has led evidence to show that the person who had sexually assaulted Chhota was some other person and not the accused. 6. I have carefully gone through the evidence produced in the case. Chhota has deposed that she was 14 to 15 years of age on the date her statement was recorded in the Court. Her statement was recorded some 9 months after the alleged occurrence. Thus according to her statement, Chhota was not more than 14 years of age on the date of occurrence. The medical evidence contained in the statement of Dr. Sahib Singh (PW 12) also shows that Chhota was less than 16 years of age at the time she was examined by him. His statement is based on the basis of the occification test. The medical evidence contained in the statement of Dr. Sahib Singh (PW 12) also shows that Chhota was less than 16 years of age at the time she was examined by him. His statement is based on the basis of the occification test. It may be that he has admitted that there could be difference of one year in his opinion, but by that it cannot be inferred that Chhota was more than 16 years of age on the date of incident. The medical evidence has to be appreciated keeping in view the direct evidence produced in the case. 7. Even on assuming that the age of Chhota was more than 16 years, it does not help the accused in this case. There is clear evidence on record that the accused had committed rape on Chhota by showing knife to her. Therefore, it cannot be successfully contended that Chhota must have consented to the sexual intercourse. It may be that no injuries were found on the back portion of Chhota but that does not lead us to infer that she was not sexually assaulted. The place where Chhota was flung was sandy. It has not come in evidence that there were stones and pebbles lying underneath. Therefore, there was no possibility of sustaining of injuries by Chhota on her back portion. In this connection, this fact cannot be lost sight of that the accused was having a knife in his hand. Chhota, therefore, was not in a position to put resistance. It is yet to be noticed that three abrasions were found on the breast of Chhota. This shows that she was assaulted. Chhota has not stated that she was dragged for some long distance. As there were no stones and the land was sandy, there was no possibility of injury on the feet of Chhota. 8. The testimony of Chhota cannot be discarded on the ground that she had not reported the matter to a camel man whom she had seen in the way. It has not come in the statement of Chhota that she knew the camel man from before. Even it has not come in evidence that the camel man belonged to the village to which Chhota belonged. There could not be any occasion for Chhota to tell about the incident to an unknown person when she had already suffered trauma. 9. It has not come in the statement of Chhota that she knew the camel man from before. Even it has not come in evidence that the camel man belonged to the village to which Chhota belonged. There could not be any occasion for Chhota to tell about the incident to an unknown person when she had already suffered trauma. 9. It may be that Chhota did not know the accused from before, but it is an evidence that immediately after the occurrence, she had identified the accused in the presence of Kalyan (PW 6). Chhota deposes that after the occurrence, as she reported the matter to the shopkeeper, her relatives and her sister's uncle-in-law, took her to the house of the accused where she identified the accused. Kalyan (PW 6) deposes that Chhota had told them that the person who had committed rape on her, had started chasing her from nearby house. It is obvious that when Chhota was taken to a nearby house, she identified the accused as the person who had committed rape on her. There is-absolutely no reason to disbelieve Kalyan. His statement cannot be discarded on the ground That Sohan Lal (PW 4), who was also with him at the time Chhota told the story to him, has not supported the prosecution case. Sohan Lal is the person who had himself lodged the FIR Ex.P /4. He has been declared hostile. It is obvious that he has resiled from the FIR in order to help the accused. By the evidence of Kalyan, it is fully established that Chhota had identified the accused as the culprit immediately after the occurrence. 10. Chhota has deposed that her parents are old and therefore, they did not come along with her. There is nothing on record to disbelieve Chhota. In any case, the parents were not eye-witnesses to the occurrence and even the FIR was not lodged by them. Therefore, they were not material witnesses in this case. 11. By the evidence of Dr. Pushpa Nagar (PW 8), it is fully established that Chhota was sexually assaulted on 4.9.1995. She deposes that she had found the fresh tear of hymen and had taken vaginal smear which was handed over by her to the police. The FSL report Ex.C-2 clearly shows that human semen was detached in vaginal smear. 11. By the evidence of Dr. Pushpa Nagar (PW 8), it is fully established that Chhota was sexually assaulted on 4.9.1995. She deposes that she had found the fresh tear of hymen and had taken vaginal smear which was handed over by her to the police. The FSL report Ex.C-2 clearly shows that human semen was detached in vaginal smear. The evidence of Chhota pertaining to rape is fully supported by the medical evidence and the evidence of Forensic Science Laboratory. 12. The accused has taken the plea of alibi. Ram Kishore (PW 4) father of the accused has stated that on 4.9.1995 the accused had gone to Jaipur to attend a Court case. However, he has not been able to give number of the Court case, and has admitted that he had not gone to Jaipur along with accused. The plea of alibi is not substantiated. The trial Court has not erred when it held the accused-appellant guilty of rape. 13. The plea of the accused that sexual assault on Chhota had been caused by some other person cannot be accepted. It cannot be believed that Chhota would leave the real culprit and implicate the accused. 14. The sentence cannot be said to be excessive. The Court cannot be sympathetic towards the accused in such matters. 15. Consequently, the appeal being devoid of merit, is dismissed.Appeal dismissed. *******