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2010 DIGILAW 352 (RAJ)

Kawar Singh @ Kawriya v. The State of Rajasthan

2010-02-11

K.S.CHAUDHARI

body2010
JUDGMENT 1. - This appeal has been filed against the judgment dated 24.10.2005 passed by Special Judge (Women Atrocity and Dowry Cases) Kota in Sessions Case No.33/2005 by which he convicted accused-appellant under Section 363 IPC and sentenced him to undergo one year rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo one month simple imprisonment and under Section 376/511 IPC sentenced him to undergo 7 years rigorous imprisonment and fine of Ra 1,000/ -and in default of payment of fine to further undergo 3 months simple imprisonment and it was further observed that both the sentences were run concurrently. 2. Brief facts of the prosecution case are that PW11 Mangi Lal lodged report Exhibit P1 on 22.03.2005 at 05.30 P.M. and alleged that he along with his family members was residing in hut in back side of All India Radio Colony. He along with his wife and son Satyanarayan had gone for labour work and at 04.00 P.M. his son-in-law Moti informed him that complainant's daughter Sonu aged 3 years is missing from hut then he along with his wife and son came to their hut and along with his younger brother Babu and his wife Reta made search of daughter Sonu and called her then they heard her voice, then they went on the spot and saw that behind bushes accused Kawar Singh was lying in a naked position and his daughter Sonu was lying on accused's body near his penis. Accused tried to run away but he was caught by them along with Sharma Ji and one Military Subedar on the spot. On this report ease under Section 363 and 376/511 IPC was registered. 3. After completion of investigation challan was filed under Section 363 and 376/511 IPC against the accused appellant in the court of Special Court, Communal Riots, Kota. Case was committed to the court of Sessions Judge Kota from where case was transferred to Special Judge, (Women Atrocity and Dowry Cases) Kota. Charge under Section 363 and 376/511 IPC was framed against the accused appellant to which he denied. During trial 12 witnesses were examined, the statement of accused appellant was recorded under Section 313 Cr.P.C. After hearing arguments the accused appellant was convicted and sentenced as aforesaid. 4. Heard learned counsel for the parties and perused the record. 5. Charge under Section 363 and 376/511 IPC was framed against the accused appellant to which he denied. During trial 12 witnesses were examined, the statement of accused appellant was recorded under Section 313 Cr.P.C. After hearing arguments the accused appellant was convicted and sentenced as aforesaid. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the appellant argued at length and during course of arguments submitted that he does not challenge conviction on merits and prayed that accused may be released on undergone as he is in custody since last 4 years and 10 months. 6. All the family members of Sonu have stated in their statements that Sonu was of about 2 to 3 years. PW5 Dr.Ashok Mundra stated that he examined body of Sonu and after X-ray report he found that Sonu's age was between 2 to 3 years. Thus it becomes clear that at the time of commission of offence, Sonu was about 3 years of age. 7. PW2 Sattu has stated that he along with his family members went to search his sister Sonu who was found near nala at some distance from their hut. He further stated that Sonu in a naked position was lying on the penis of accused and accused had also put off his underwear. This fact has been corroborated by PW3 Reta, aunty of Sonu; PW4 Kamla mother of Sonu and PW10 Babu, uncle of Sonu, PW11 Mangi Lal complainant also stated that on search, Sonu was found near bushes and persons who searched revealed that Sonu was lying on the accused in a naked position and at that time accused was also naked. He has admitted in cross-examination that he has not seen the occurrence and it appears that whatever was revealed by other family members and neighbour, he narrated in report Exhibit P2. PW7 Banwari Lal and PW8 Bhairo Singh neighbours who are independent witnesses have also stated in their statements that on hearing hue and cry they also went near nala and found that one girl aged about 3 years was standing near nala in naked position and accused was also lying in a naked position near nala. PW7 Banwari Lal and PW8 Bhairo Singh neighbours who are independent witnesses have also stated in their statements that on hearing hue and cry they also went near nala and found that one girl aged about 3 years was standing near nala in naked position and accused was also lying in a naked position near nala. No doubt these witnesses have been declared hostile and denied this fact that they have seen girl lying on the penis of accused but have clearly stated in their statements that had they not reached on the spot in time, accused must have committed rape with girl. 8. By the statements of prosecution witnesses coupled with the fact that Sonu was lying in a naked condition on the penis of accused who was also lying in a naked position near nala behind bushes, offence under Section 376/511 IPC is proved. It is proved beyond reasonable doubt that accused made an attempt to commit rape with the girl. Thus, learned counsel for the appellant has rightly not challenged conviction of the accused appellant under Section 363 and 376/511 IPC. 9. As far as sentence is concerned, in Madan Lal v. State of Rajasthan, reported in 1987 CLJ 257 (Raj.) ; sentence of 2 years awarded under Section 376/511 IPC was reduced to one year. In Bharwada Bhoginbhai Hiribhai v. State of Gujarat, reported in 1983 CLR (SC) 396 sentence under Section 376/511 IPC was reduced from - 1/2 years to one year three months. In the present case accused is in custody for more than 4 years 10 months and in such circumstances I deem it a fit case in which he should be released on sentence already undergone. 10. In this case learned trial court should have framed charge under Section 376(2)(f)/511 IPC instead of 376/511 IPC as Sonu was 2 to 3 years old at the time of occurrence. 11. Consequently, S.B.Criminal Appeal 1075/2005 is partly allowed and the judgment of the learned trial court dated 24.10.2005 convicting accused appellant under Section 363 and 376/511 IPC is upheld, sentence awarded under Section 363 IPC is also upheld but sentence awarded under Section 376/511 IPC is reduced to the period already undergone but fine of Rs. 1,000/- and sentence in default of payment of fine imposed by the learned trial court is maintained. 1,000/- and sentence in default of payment of fine imposed by the learned trial court is maintained. Accused-appellant Kawar Singh @ Kawriya son of Pidheeya shall be released forthwith, if not wanted in any other case subject to depositing fine of Rs. 1,000/- imposed by the learned trial court.Appeal Partly Allowed. *******