Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 491 (RAJ)

Bhava Ram v. State of Rajasthan

2006-02-14

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the Judgment and order dated 03.06.2005 passed by Additional Sessions Judge (Fast Track), Jalore Camp Bhinmal (for short the trial Court hereinafter) in Sessions Case No. 11/2005 (Old No. 02/2005), whereby the trial Court convicted the appellant for the offence under Section 376/511, IPC and sentenced him to undergo five years rigorous imprisonment and a fine of Rs. 5,000/-in default of payment of amount of fine further to undergo six months simple imprisonment. 2. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal. 3. I have heard learned Counsel for the appellant and public prosecutor for the State, perused the Judgment and order impugned as also record of the trial Court. 4. Briefly stated the facts of the case to the extent they are necessary and relevant for the decision of this case are that on a first information report Exhibit P-8 lodged by PW. 4 Bhanwar Singh, police ensued the investigation and after usual investigation filed challan against the appellant for the offence under Section 376/511, IPC. The prosecution adduced evidence by producing as many as 10 witnesses and tendered in evidence documents Exhibit P-1 to Exhibit P-9. The appellant made statement under Section 313 of the Code and denied the allegation and came with a plea that a day prior to the date of alleged occurrence, the cattle of complainant PW. 4 caused damage to the crops of the appellant for which a Panchayat was held in the village, loss caused by the cattle of the complainant PW. 4 was assessed and he was made to pay a sum of Rs. 500/-as damages for the crops and, therefore, PW. 4 having an enmity in collision with the SHO, registered a false case by implicating him for the said offence. In defence, DW. 1 Babulal and DW. 2 Lakhmaram were examined and documents Exhibit D-1 to D-12 were produced. By the Judgment and order impugned, the trial Court held the appellant guilty of the offence under Section 376/511, IPC and accordingly convicted and sentenced as noticed above. .5. It is contended by the learned Counsel for the appellant that there is no material to show that the appellant was determined to have a forcible sexual intercourse in all events. By the Judgment and order impugned, the trial Court held the appellant guilty of the offence under Section 376/511, IPC and accordingly convicted and sentenced as noticed above. .5. It is contended by the learned Counsel for the appellant that there is no material to show that the appellant was determined to have a forcible sexual intercourse in all events. According to learned Counsel even if the prosecution evidence is taken as such, the offence would not travel beyond the offence punishable under Section 354, IPC he further contended that there are material contradictions in the statements of prosecution witnesses including the place of occurrence as also according to prosecutrix she suffered numerous injuries whereas according to medical evidence no external injury was found by the medical officers. Learned Counsel further submits that the alleged eye-witness PW. 6 Modsinghs statement even if taken as such, at best his statement is to the extent that the appellant removed the undergarments of the prosecutrix as also his own pant and undergarments. Learned Counsel submits that according to medical evidence of PW. 9, the prosecutrix neither suffered any injuries on her body nor on vulva or hymen and, therefore, it cannot be said from the evidence on record that the appellant made an attempt to commit rape. 6. Learned public prosecutor supported the Judgment and order impugned. 7. In the first information report Exhibit P-8, lodged by PW. 4 Bhanwar Singh, it is alleged that clothes of prosecutrix PW. 5 were removed by the appellant as also the appellant himself undressed by removing his pant, sat on the prosecutrix and made an attempt to commit sin act. On seeing PW. 6 Modsingh, the appellant ran away. 8. PW. 1 Bhagwan Singh is the person who has proved the certificate Exhibit P-1 on the basis of school record wherein the date of birth of the prosecutrix has been shown as 01.06.1995. He categorically stated that prosecutrix did not come to school after 112.2004 and from 212.2005 to 312.2004 there was winter vacation of the school. the distance of the school from the place of alleged occurrence is about 100-125 meters. 9. PW. 2 Mangal Singh is the witness to the site map Exhibit P-1. The place of occurrence is near to Rajeev Gandhi Swarn Jayanti School, Lunavas. PW. 3 Pabusingh is also a witness to the site map. 10. The material witness PW. the distance of the school from the place of alleged occurrence is about 100-125 meters. 9. PW. 2 Mangal Singh is the witness to the site map Exhibit P-1. The place of occurrence is near to Rajeev Gandhi Swarn Jayanti School, Lunavas. PW. 3 Pabusingh is also a witness to the site map. 10. The material witness PW. 5 Leela, the prosecutrix aged 11 years stated that at about 10.00 AM while she was going to school, the appellant met her and told her that he would give her money and berries, upon which, she followed him. He took her behind the bushes, shut her mouth and removed her undergarments as also removed his own pant and undergarments and sat on her. At that time, on raising cries, PW. 6 Modsingh came and appellant ran away. She stated that she was going to school alongwith her two sisters Mafi and Aniya, who were going about 10 paces ahead of her. Mafi and Amiya have not been examined. The occurrence is shown to have taken place on the bypath leading to school. She stated that she followed the appellant on the bypath going towards school. She followed the appellant on the bypath going towards school. She further stated that the appellant took her 50 feet away from the bypath and thereafter removed her undergarments and closed her mouth with a towel. When PW. 6 Modsingh came, the appellant removed the towel from her mouth and went away with his towel. She stated that she suffered the injuries on her abdomen and thigh. At the place of occurrence, according to prosecutrix there were thorns of Babool and sticks. 11. PW. 6 Modsingh stated that from the bushes, he heard cries of a child, he went towards the bushes and found the prosecutrix and the appellant underessed. The appellant was lying on the prosecutrix. On seeing him, the appellant ran away taking his pant in his hand. Thereafter he took the prosecutrix to his fathers house. He did not see any blood on the private parts of the prosecutrix. He stated that while he was 5-6 paces away, the appellant saw him and thereafter he ran away. When confronted with his previous statement Exhibit D-2, he failed to explain as to why the statement made by him did not find place in his previous statement Exhibit D-2. 12. PW. He stated that while he was 5-6 paces away, the appellant saw him and thereafter he ran away. When confronted with his previous statement Exhibit D-2, he failed to explain as to why the statement made by him did not find place in his previous statement Exhibit D-2. 12. PW. 7 Oksingh stated that from the bushes he heard the cries of a child. When he went towards the bushes he noticed that the prosecutrix was weeping and PW. 6 Modsingh was helping her to wear the clothes. He saw the appellant running. On being asked the prosecutrix, she informed that the appellant shut her mouth and removed her undergarments. She further stated that the appellant took her by saying that he would give money and berries. She further informed that the appellant also removed his pant and undergarments and sat on her and wanted to commit sin act, but she obstructed by her hands. 13. PW. 8 Bhanwar Singh is the father of the prosecutrix. He has proved the FIR and stated that his daughter aged 11 years was taken by the appellant to the bushes by saying that he would give her money and berries and thereafter removed her undergarments as also his own and made an attempt to do sin act. By that time, PW. 6 Modsingh came and appellant run away. It was suggested to this witness that a day prior to the alleged occurrence, there was a panchayat in the village and a fine of Rs. 500/-was imposed on her with regard to damages caused by his cattle to the crops of the appellant. 14. PW. 9 Dr. Premraj is the witness who medically examined the prosecutrix vide Exhibit P-6. According to him, the age of the prosecutrix was between 10-11 years; neither there was staining nor any fresh bleeding/abrasion over external genitalia, Vulva and Vagina were normal and hymen was intact. According to him, there was no sign of sexual intercourse. 15. In defence, DW. 2 Lakmaram stated that the field of PW. 8 is adjacent to field of his father. In their field, black mustard crop was standing. The accused-appellant has been cultivating the field. The appellant informed that PW. 4 Bhanwar Singh allowed his cattle to cause damage to the crop. Thereafter, he alongwith other persons went to the field and assessed the damages caused to the crop. PW. 8 is adjacent to field of his father. In their field, black mustard crop was standing. The accused-appellant has been cultivating the field. The appellant informed that PW. 4 Bhanwar Singh allowed his cattle to cause damage to the crop. Thereafter, he alongwith other persons went to the field and assessed the damages caused to the crop. PW. 8 Bhanwar Singh was called. He admitted his fault and he was made to pay a sum of Rs. 500/-as damages caused to the crop of the appellant by his cattle. 9.16. On close scrutiny of the statement of witnesses noticed above, more particularly the statement of PW. 6, the sole eye witness, it has been established that the prosecutrix was lying undressed and the appellant was also lying on her undressed and by seeing PW. 6 the appellant ran away. From the medical evidence, it no where appears that the prosecutrix suffered any injury either on her body or private parts though the prosecutrix stated in her statement that at the place of occurrence there were babool thorns and sticks and she suffered injuries on abdomen and thigh. From the medical evidence it nowhere appears that the prosecutrix suffered any injuries. PW. 9 Dr. Premraj categorically stated that there was no external injury on the body of the prosecutrix. He also stated that neither there was staining nor any bleeding/abrasion over external genitalia. He further stated that vulva and vagina were normal and hymen was intact. According to him there was no sign of sexual intercourse. 10.17. Thus, from the evidence produced by the prosecution, it has been established that the appellant led down the prosecutrix made her naked, undressed himself and sat on the prosecutrix by the time, PW . 6 Modsingh came and on seeing him, the appellant ran away. According to medical evidence, there was no injury on the body of the prosecutrix or her private parts. Thus, there is no material to show that the appellant was determined to have sexual intercourse in all events. In this view of the matter, in my view, the prosecution has failed to prove the case against the appellant for the offence under Section 376/511, IPC. Thus, there is no material to show that the appellant was determined to have sexual intercourse in all events. In this view of the matter, in my view, the prosecution has failed to prove the case against the appellant for the offence under Section 376/511, IPC. However from the evidence produced by the prosecution it has been proved beyond reasonable doubt that the appellant used the criminal force to a woman with an intend to outrage her modesty punishable under Section 354, IPC. To this extent, the Judgment and order of the trial Court is liable to modified. The appellant was arrested on 212.2004 and is in custody till date, as such he has already undergone imprisonment for one year and about two months. 118. Consequently, the appeal is partly allowed. The Judgment and order impugned dated 03.06.2005 to the extent convicting and sentencing appellant Bhavaram S/o Padmaram for the offence under Sections 376/511, IPC is 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.