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2006 DIGILAW 74 (RAJ)

Raman v. State of Rajasthan

2006-01-05

H.R.PANWAR

body2006
Honble 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 16.10.2003 passed by the Additional Sessions Judge (Fast Track) No. 1, Banswara (for short, ``the Trial Court hereinafter) in Sessions Case No. 33/2002, whereby the Trial Court convicted the appellant for the offence under Section 376 IPC and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 5000/-, in default of payment of fine further to undergo one months rigorous imprisonment. Aggrieved by the judgment and order impugned, the appellant has filed the instant appeal. (2). The facts of the case, to the extent they are relevant and necessary for decision of this appeal, are that PW 8 Miss Indira, the prosecutrix, lodged an FIR (Ex.P/2) with Police Station, Pipalkhunt, district Banswara, inter alia alleging therein that on 1.1.2002, at about 2:00 p.m., when she was grazing the cattle in Dolarwala jungle and took the cattle to the water-pond (Nalla), at that time appellant Raman and co-accused Mohan suddenly came. The appellant caught-hold her, dragged her and thereafter committed rape on her. She raised cries, whereupon her neck was pressed. Co-accused Mohan had an axe and he threatened her for dire consequences if she would raise cries. Thereafter Bapudi and Raoji came, whereupon the appellant and co-accused Mohan ran away towards the jungle. Had those two persons not come, they would have killed her. On this report, the police registered Chak-FIR Ex.P/3 and ensued investigation. The prosecutrix was medically examined vide injury report Ex.P/12, vide Ex.P/15 for determination of her age and Ex.P/16 X-ray plates. After usual investigation, the police filed challan against the appellant for the offence under Section 376 IPC and co-accused Mohan for the offence under Section 376/109 IPC. Both the accused were but to trial. The appellant denied the charges and sought trial. The prosecution examined as many as 11 witnesses and produced documents Ex.P/1 to Ex.P/16. The statement of appellant was recorded under Section 313 of the Code and he denied the charges. The Trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubt against the appellant; however acquitted accused Mohan of the offence under Section 376/109, IPC. (3). I have heard learned counsel for the appellant and the Public Prosecutor. The Trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubt against the appellant; however acquitted accused Mohan of the offence under Section 376/109, IPC. (3). I have heard learned counsel for the appellant and the Public Prosecutor. Carefully gone through the impugned judgment and order, as also the record of the Trial Court. (4). It is contended by the learned counsel for the appellant that the occurrence took place in the afternoon of 1.1.2002 and the report Ex.P/2 was lodged on 3.1.2002 at 10:05 AM and, thus, there is delay in lodging the FIR which has not been explained. It was further contended that the alleged eye witness PW 12 Raoji and PW 3 Smt. Bapudi did not support the prosecution case and turned hostile, therefore, there being no independent eye witness of the occurrence, the Trial Court fell in error in convicting and sentencing the appellant. It has further been submitted that the testimony of hostile witnesses PW 12 Raoji and PW 13 Smt. Bapudi can be relied on to the extent they support the case of the appellant. Learned counsel for the appellant further contended that the appellant was medically examined and there was no injury on his male-organ (penis) and, therefore, it can be presumed that the appellant is innocent. He has placed reliance on a decision of the Honble Supreme Court in Rahim Beg vs. State of U.P., AIR 1973 SC 343 ; Dilip & Anr. vs. State of M.P., 2002 W.L.C. (SC) Cri. 224 = RLW 2002 (3) SC 328; Karuppanna Thevar & Ors. vs. The State of Tamil Nadu, AIR 1976 SC 980 . Lastly, it has been contended that the Trial Court fell in error in holding the prosecutrix below 16 years of age on the date of the occurrence. According to the learned counsel, the prosecutrix, in her statement, has categorically admitted that her date of birth is 6.7.1985 and she is VIII passed. Taking this date of birth, on the relevant day of the occurrence,i.e., 1.1.2002, the age of the prosecutrix works out to 16 1/2 years and, thus, according to the learned counsel, even according to the admission of the prosecutrix herself, she was about 16 1/2 years of age and not below 16 years, as held by the Trial Court. (5). Taking this date of birth, on the relevant day of the occurrence,i.e., 1.1.2002, the age of the prosecutrix works out to 16 1/2 years and, thus, according to the learned counsel, even according to the admission of the prosecutrix herself, she was about 16 1/2 years of age and not below 16 years, as held by the Trial Court. (5). Learned Public Prosecutor, appearing for the State, supported the judgment and order impugned and contended that there is little delay in lodging the FIR Ex.P/2 and which has been satisfactorily explained in the FIR itself, as also in the statement of the prosecution witnesses. The appellant and the prosecutrix belong to tribal area and as per the prevailing custom in the area, whenever any occurrence takes place, the matter first goes to the community Panchayat and if it is not settled there then a report is lodged. The author of the FIR and other witnesses have accepted that there was a community Panchayat, whereby the ``Jhagda was settled and the appellant was ready to pay for ``Jhagda and promptly thereafter the FIR was lodged. Be that as it may, in the instant case, keeping in view the facts and circumstances of the case and the allegation against the appellant that he committed rape on a minor girl of 16 years, the little delay of a day and few hours cannot be said to be fatal to the prosecution case. (6). I have scrutinized, scanned and evaluated the evidence on record. PW 8 is the victim of sexual assault and prosecutrix in the case. She has stated on oath before the Trial Court that on 1.1.2002, she went in Dolarwala jungle for grazing the cattle. She took the cattle to the Nalla for drinking water. At that time, the appellant and co-accused Mohan came. Mohan abetted the appellant to commit rape on her. Thereafter went and stood at some distance. The appellant caught-hold her neck, threw her on the ground and when she raised cries, she was threatened to life by him. Thereafter the appellant removed his pant, lifted her Petikot and forcibly penitrated his male-organ (penis) in her vagina. She raised cries. After about five minutes, on seeing PW 13 Bapudi and PW 12 Raoji, the appellant ran away. Had these persons not come, co-accused Mohan would also have committed rape on her. Thereafter the appellant removed his pant, lifted her Petikot and forcibly penitrated his male-organ (penis) in her vagina. She raised cries. After about five minutes, on seeing PW 13 Bapudi and PW 12 Raoji, the appellant ran away. Had these persons not come, co-accused Mohan would also have committed rape on her. She has stated that she suffered injuries on neck, back and vagina. Blood started oozing out from the vagina, which she subsequently washed in the Nalla. The occurrence was reported by her to her father, brother etc. and thereafter there was a community Panchayat (``Jaati Bajagda); however, in the community Panchayat, the matter could not be compromised and thereafter she went to the Police Station and lodged the report Ex.P/2 and the Chak-FIR Ex.P/3. Her injuries were medically examined vide Ex.P/12. She has proved the site map Ex.P/5. She categorically stated that the appellant committed sexual intercourse forcibly against her wishes. This witness was put to lengthy cross-examination but she with-stood with her statement made in the examination-in-chief; however, she admitted that her date of birth is 6.7.1985 and she is VIII passed. (7). PW 1 Smt. Indira Meena, Headmistress of Government Middle School, Pipalkhunt, has proved the certificate Ex.P/1 issued by the school, wherein the date of birth of the prosecutrix has been shown as 6.7.89. She stated that the said certificate has been issued on the basis of school record, however, in cross- examination she has admitted that she had not brought the original record of the school. (8). PW 2 Kanhaiya Lal, the then Station House Officer, Police Station, Pipalkhunt, has proved the report Ex.P/2, Chak-FIR Ex.P/3, seizure memo Ex.P/4, site map Ex.P/5, arrest memo of appellant Ex.P/6 etc. He has clearly stated that at the time of lodging the FIR, the delay was explained in the FIR itself. (9). PW 4 Gautam, PW 5 Shankar Lal and PW 10 Jiva are the witnesses of site map Ex.P/5. PW 6 Nanka is the father of the prosecutrix, who has stated that the prosecutrix went for grazing the cattle in Dolarwala jungle and there the appellant committed rape on her. On return to home, the prosecutrix informed that she was subjected to sexual assault by the appellant. He noticed injuries on the back, neck etc. of the prosecutrix. (10). PW 6 Nanka is the father of the prosecutrix, who has stated that the prosecutrix went for grazing the cattle in Dolarwala jungle and there the appellant committed rape on her. On return to home, the prosecutrix informed that she was subjected to sexual assault by the appellant. He noticed injuries on the back, neck etc. of the prosecutrix. (10). PW 9 Vijaypal is the brother of the prosecutrix, to whom the prosecutrix informed that she was subjected to sexual assault by the appellant. (11). PW 11 Dr. Suman P. Sardar medically examined the injuries suffered by the prosecutrix on 3.1.2002 on 3.1.2002 on the police report Ex.P/2 and stated that the prosecutrix suffered (i) an abrasion 1 x 1 cm on the back of the neck, (ii) 3 x 3 cm on left scapular region, and (iii) 1 x 1 cm on mandibular region and opined that the duration of those injuries was 48 hours. She has proved the injury report Ex.P/12. She also medically examined the prosecutrix with regard to commission of rape and stated that on examining the vaginal canal, there was reddish valva and she was complaining pain on touching. She has categorically opined that there is evidence of penitration of vagina a day or two back. On the basis of X-ray plates No. 4493 dated 5.1.2002, she opined that the age of the prosecutrix was below 16 years. (12). PW 14 Dr. S.K. Bhatnagar was the Medical Jurist, who took the X-ray of the right wrist and right elbow of the prosecutrix and he has proved the X-ray plates Ex.P/16. (13). PW 12 Raoji and PW 13 Bapudi are the persons said to have reached at the place of the occurrence soon after the occurrence, though they have turned hostile, however, PW 12 Raoji stated that when he was going for taking goats for water to the Nalla, he noticed that the prosecutrix was raising cries at Dolarwala Nalla. He rushed up to the place and noticed that the prosecutrix was weeping having abrasions on back and neck and she informed him that appellant Raman and co-accused Mohan fell on her for taking her chestity. Similar is the statement of PW 13 Smt. Bapudi. She has stated that the prosecutrix came crying and at that time she noticed the appellant and co-accused Mohan running. The prosecutrix informed her that the appellant fell on her. Similar is the statement of PW 13 Smt. Bapudi. She has stated that the prosecutrix came crying and at that time she noticed the appellant and co-accused Mohan running. The prosecutrix informed her that the appellant fell on her. She explained that falling on her means committing rape. She stated that the prosecutrix had abrasions on neck and back. Though these witnesses do not support the prosecution case to the extent that they had seen appellant committing rape on the prosecutrix but their evidence corroborates the statement of the prosecutrix to the extent that the appellant was seen running soon after the occurrence from the place of the occurrence and the prosecutrix was raising cries having suffered injuries and informed by the prosecutrix to these two witnesses that the appellant fell on her and committed rape. PW 13 Smt. Bapudi has also stated that the prosecutrix had shown her private parts bleeding. (14). On close scrutiny of the statements of the prosecutrix and the other witnesses, as also the statements of PW 11 Dr. Suman P. Sardar, it has been established beyond reasonable doubt that the prosecutrix was subjected to forcible sexual intercourse by the appellant against her wishes while she was grazing the cattle in Dolarwala jungle. The statement of prosecutrix is fully corroborated by the medical evidence and she, on being medically examined, was found having suffered three abrasions, as noticed above. Apart from the injuries, on being examined by PW 11 Dr. Suman P. Sardar, there was definite evidence of vaginal penitration, as stated by PW 11 Dr. Suman P. Sardar. Not only that, there was a reddish vaginal valva and swelling. Thus, the medical evidence fully corroborates the version of the prosecutrix. Even PW 12 Raoji and PW 13 Smt. Bapudi, though turned hostile, but their evidence support the prosecution case to the extent that on hearing the cries of the prosecutrix they rushed up to the place of occurrence and found the appellant running, the prosecutrixs crying and informing them that she was subjected to forcible sexual intercourse by the appellant. PW 13 Smt. Bapudi has even stated that the prosecutrix showed her private parts, which were bleeding at that time. The judgments relied on by the learned counsel for the appellant turn on their own facts and do not apply to the facts and circumstances of the instant case. (15). PW 13 Smt. Bapudi has even stated that the prosecutrix showed her private parts, which were bleeding at that time. The judgments relied on by the learned counsel for the appellant turn on their own facts and do not apply to the facts and circumstances of the instant case. (15). So far as the age of the prosecutrix is concerned, though a school certificate has been produced vide Ex.P/1 by PW1 Smt. Indira Meena, the Headmistress, but in absence of the original record, including the school admission form, scholar register etc., the certificate Ex.P/1 is not conclusive evidence to determine the age of the prosecutrix. In the medical evidence, though the doctor has opined the age of the prosecutrix to be below 16 years, but the prosecutrix, who is VIII passed, has admitted that her date of birth is 6.7.1985. Taking the date of birth as 6.7.1985 as admitted by the prosecutrix herself and an admission being the best evidence, the age of the prosecutrix, on the relevant date of occurrence i.e., 1.1.2002, works out to 16 1/2 years. In my view, on the basis of admission of the prosecutrix herself, it can be believed that the prosecutrix, at the time of the incident, was about 16 1/2 years of age. Be that as it may, whether the prosecutrix was below 16 years of age or 16 and half years of age at the time of the occurrence, it makes no difference so far as commission of the offence of rape is concerned. It is not the case of defence that the prosecutrix was a consenting party, the age above 16 years would have some relevancy. In the instant case, the appellant has not come with the case that the prosecutrix was a consenting party to the sexual intercourse. On the contrary, from the statements of the witnesses discussed here-in-above, the prosecution has been able to prove beyond reasonable doubt that it was the appellant, who caught hold the neck of the prosecutrix, fell her on the ground, when she raised cries, she was threatened to her life, thereafter the appellant removed his pant and underwear, lifted the Peticot of the prosecutrix and forcibly penetrated his male-organ in the vagina of the prosecutrix. Thus, the appellant committed sexual intercourse with the prosecutrix against her will and without her consent and, therefore, the prosecution has been able to prove offence under Section 376 IPC against the appellant beyond reasonable doubt. In view of the evidence produced by the prosecution, as discussed above, I am of the view that the Trial Court was justified in convicting and sentencing the appellant for the offence under Section 376 IPC. I do not find any error in the judgment and order impugned. (16). Consequently, the appeal fails and it is hereby dismissed. The judgment of conviction and order of sentence impugned dated 16.10.2003 passed by the Additional Sessions Judge (Fast Track), Banswara in Sessions Case No. 33/2002, is confirmed.