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2005 DIGILAW 3235 (RAJ)

Sultan Singh v. State of Rajasthan

2005-12-07

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for Short, “the Code” hereinafter), the appellant has challenged the Judgment and order dated 30.07.2005 passed by the Special Additional Sessions Judge (Women Atrocities and Dowry Cases), Sri Ganganagar (for short, “the trial Court” hereinafter) in Sessions Case No. 40/2001, whereby the trial Court convicted the appellant for the offence under Section 376 (2)(f) read with Section 511, IPC and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs. 5,000/-and in default of payment of fine further to undergo simple imprisonment for six months. 2. The facts and circumstances, relevant and necessary for decision of this criminal appeal, succinctly stated are that on 10.2000, PW. 7 Om Prakash lodged a typed report with Police Station, Raisinghnagar, district Sri Ganganagar, alleging therein that his daughter PW. 6 Kumari Pramila, aged about 7 years, was going to the house of Manphool Meghwal, the accused-appellant forcibly took her to a room, naked her and also put-off his clothes, kissed on her cheeks and tried to commit rape, whereupon the prosecutrix raised cries and hearing the cries when he reached the place of occurrence, the accused-appellant, taking his underwear, ran away. His daughter was lying naked in the room and he took her to the house. On this report, the police registered the FIR No. 424/2000 under Section 376/511, IPC and after investigation, filed Challan against the accused-appellant for the offences under Sections 376/511, 323, IPC. The learned trial Court, after hearing the parties, framed charge under Section 376/511, IPC against the accused- appellant, who denied the charge and claimed to be tried. In support of its case, the prosecution examined as many as 9 witnesses and produced documents. The statement of accused-appellant was recorded under Section 313 of the Code and denying the allegation, he has stated that the witnesses have falsely deposed against him. In defence, no evidence was produced by the accused-appellant. After hearing the parties and appreciating the evidence on record, the learned trial Court convicted and sentenced the accused-appellant as stated above. Hence, this appeal. 3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Perused the impugned Judgment and order and the record of the trial Court. 4. After hearing the parties and appreciating the evidence on record, the learned trial Court convicted and sentenced the accused-appellant as stated above. Hence, this appeal. 3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Perused the impugned Judgment and order and the record of the trial Court. 4. It is contended by the learned Counsel for the appellant that the appellant has wrongly been convicted and sentenced for the offence under Section 376/511, IPC and according to him, even if the prosecution case is believed, the offence against the appellant does not travel beyond Section 354, IPC. His further contention is that the sentenced awarded by the trial Court may be reduced to the period of imprisonment already undergone by the appellant. Learned Public Prosecutor has supported the Judgment and order passed by the trial Court and submitted that the appellant attempted to rape on a minor girl of 7 years and as such the sentence awarded by the trial Court cannot be said to be disproportionate to his guilt. 5. I have considered the rival submissions made by the learned Counsel for the parties. 6. PW. 6 Pramila, the prosecutrix, in her statement has stated that she knows the accused-appellant. On the relevant date of incident, at about 8:00 A.M, she was going to the house of her uncle Manphool. The appellant was standing out-side his house and took her in a room, put off her clothes, also put off his clothes and ate her mouth and thereafter tried to put her on a cot, upon which she raised cries and hearing her cries, her father came there and the appellant ran away. In her cross-examination, she admitted that on being called, she went in the room and the appellant did not forcibly took her in the room. 7. PW. 7 Om Prakash is the father of the prosecutrix. He has stated that on the relevant day of the occurrence, in the morning, he sent the prosecutrix to the house of PW. 1 Manphool for bring some money and he himself went to the grocery shop for buying soap. 7. PW. 7 Om Prakash is the father of the prosecutrix. He has stated that on the relevant day of the occurrence, in the morning, he sent the prosecutrix to the house of PW. 1 Manphool for bring some money and he himself went to the grocery shop for buying soap. On the way, in a house, he heard the cries of the prosecutrix and when he entered in the room, he found the prosecutrix and the appellant in a naked position and the appellant was biting the mouth of the prosecutrix and seeing him, the appellant ran away in a naked position. There were injury makes on the mouth and cheeks. He took the prosecutrix to his house and called PW. 8 Ram Chandra and they went to the police station for lodging the report. 8. PW. 8 Ram Chandra has been declared hostile. He has stated that PW. 7 Om Prakash came to him and told that when the prosecutrix went to buy Biri, the appellant took her in the room but he did not say what had been done by the appellant with the prosecutrix. 9. PW. 1 Manphool has stated that PW. 7 Om Prakash told him that the appellant had caught the prosecutrix, took her in a room and misbehaved with her and bit her. 10. PW. 2 Bhajan Lal has stated that in the evening of the day of the incident, he had heard from the villagers that the appellant had caught the prosecutrix. He has been declared hostile. In cross-examination, this witness has admitted that the appellant is his neighbour and affectionate to him. 11. PW. 3 Ugrasen has stated that on the next day of the occurrence, he had heard that the appellant had caught the prosecutrix, why he had caught her, he does not know. This witness has been declared hostile. 12. PW. 5 Dr. Suresh Chand Jain has stated that on the request of the Station House Officer, Police Station, Raisinghnagar, he medically examined the prosecutrix and found bruises on the both the cheeks and the duration thereof was 24 hours. He has proved the injury report Exhibit P/7. He also medically examined the appellant vide Exhibit P/8 and found him potent. 13. PW. Suresh Chand Jain has stated that on the request of the Station House Officer, Police Station, Raisinghnagar, he medically examined the prosecutrix and found bruises on the both the cheeks and the duration thereof was 24 hours. He has proved the injury report Exhibit P/7. He also medically examined the appellant vide Exhibit P/8 and found him potent. 13. PW. 4 Leela Dhar is the investigating officer, who conducted the investigation recorded the statements of the witnesses, prepared the site inspection memo, site plan, arrested the appellant and got the prosecutrix and the appellant medically examined. He has denied the suggestion that the site plan, site inspection note and the FIR were ante-dated. 14. Thus, from the evidence on record, it is clearly established that the appellant called the prosecutrix in his room, made her naked, put off his own clothes, tried to put her on his lap and kissed her on cheeks and mouth. There is no mention in the injury report Exhibit P/7 suggesting that the appellant attempted to rape the prosecutrix. Neither the prosecutrix nor any of the prosecution witnesses has stated that the appellant attempted to rape the prosecutrix and the evidence on record is to the effect that the appellant, after making the prosecutrix naked, kissed on her cheeks and mouth and, therefore, the offence under Section 376 (2) (f) read with Section 511, IPC is not made out against the appellant. However, from the evidence on record, it is proved that the appellant assaulted or used criminal force with an intention to outrage the modesty of the prosecutrix and thereby his act falls within the purview of the offence under Section 354, IPC. 15. Consequently, the appeal is partly allowed. The Judgment and order impugned dated 30.07.2003 passed by Special Additional Sessions Judge (Women Atrocities and Dowry Cases), Sri Ganganagar in Sessions Case No. 40/2001 to the extent convicting and sentencing appellant Sultan Singh S/o Mangat Ram for the offence under Section 376 (2) (f) read with Section 511, IPC is hereby set aside and instead the appellant is convicted for the offence under Section 354, IPC and sentenced to the period of imprisonment already undergone by him. The appellant is in jail, he be released forthwith, if not required in any other case.