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2010 DIGILAW 541 (RAJ)

Devkaran v. State of Rajasthan

2010-03-09

G.S.SARRAF

body2010
JUDGMENT 1. - This is a case where the accused-appellant is alleged to have committed rape on a girl of four years. 2. Briefly stated the facts are that at about 6.00 P.M. on 19.11.2005 Shehnaz (PW-15) who is the mother of the prosecutrix lodged a report (Ex.P-18) at the Police Station Bhinai, District Ajmer that at about 1.30-2.00 P.M. on that day when she was going to the field leaving behind her daughter Razia aged about four years at her residence, the accused Devkaran came there and promised to offer peanuts to Razia whereupon Razia went with Devkaran to the latter's house and she went to the field. After 15-20 minutes one girl Bunny came and told her that the grandfather of Razia was calling her because Razia was injured. When she reached her house she saw that Razia's vagina was bleeding. According to the report the accused Devkaran committed the wrong act with her. After necessary investigation the police filed a challan in the Court of Addl. Chief Judicial Magistrate, Kekri, District Ajmer from where the case was committed to the Court of Addl. District and Sessions Judge, Kekri, District Ajmer. A charge under Section 376 Indian Penal Code. was framed against the accused. The prosecution examined 21 witnesses. The accused did not produce any witness in defence. Addl. Sessions Judge, Kekri, District Ajmer by judgment dated 23.6.2006 passed in Sessions Case No. 3/2006 convicted the accused under Section 376 Indian Penal Code. and sentenced him to rigorous imprisonment for ten years and a fine of Rs. 10,000/-and in default of payment of the fine further simple imprisonment for one year. Aggrieved, the accused has preferred this appeal. 3. Heard learned counsel for the appellant, learned Public Prosecutor and perused the material placed before me. 4. It has been argued on behalf of the accused-appellant that there is no legal evidence to prove beyond reasonable doubt that the rape was committed by the accused-appellant. 5. On the other hand, learned Public Prosecutor submits that the judgment of learned trial Court is based on the correct appreciation of evidence and does not call for interference by this Court. 6. I have perused the judgment and examined the evidence available on the record very carefully. 7. There is absolutely no doubt that the prosecutrix (PW-18) was subjected to sexual assault. 6. I have perused the judgment and examined the evidence available on the record very carefully. 7. There is absolutely no doubt that the prosecutrix (PW-18) was subjected to sexual assault. The occurrence is alleged to have taken place at about 1.30-2.00 P.M. on 19.11.2005 and the prosecutrix was medically examined at 9.30 P.M. on the same day by a Medical Board consisting of Dr. R.K. Mathur (PW-6) and Dr. Deepali Jain (PW-21). Dr. R.K. Mathur (PW-6) has deposed that when they examined the prosecutrix they found that the hymen of the prosecutrix was ruptured and it was swollen and bleeding. He has stated in unequivocal terms that male organ or something similar was penetrated. This statement of Dr. R.K. Mathur (PW-6) is corroborated by the statement of Dr. Deepali Jain (PW-21). It is thus conclusively proved by these two statements that the prosecutrix (PW-18) was sexually assaulted on 19.11.2005. 8. The next important question is that whether the accused appellant committed rape on the prosecutrix. 9. There are two diametrically opposite versions in the statement of the prosecutrix. The first version is that she knew the accused-appellant and the injury on her vagina was caused by him. The second version is that she did not know the accused-appellant and he did not cause any injury to her and she suffered the injury on her vagina because she fell down on a 'khunti'. 10. The other important witnesses in the present case are Bunny (PW-1), Ghisu (PW-3), Kanchan (PW-5) and Shehnaz (PW-15). Bunny (PW-1) is the person who went to the field to call the mother of the prosecutrix immediately after the occurrence. Bunny (PW-1) is hostile. She admits to have gone to the field to call the mother of the prosecutrix but she says that she did not see the prosecutrix after the occurrence. Ghisu (PW-3) is the grandfather and Kanchal (PW-5) is the grandmother of the prosecutrix and both are hostile. Ghisu (PW-3) says that he does not know what happened with the prosecutrix. Kanchan (Pw-5) says that the prosecutrix suffered injury on her vagina on account of fall. Shehnaz (PW-15) who is the mother of the prosecutrix and who has lodged the report (Ex.P-15) is also hostile and she says that she does not know why her daughter bleeded. 11. Ghisu (PW-3) says that he does not know what happened with the prosecutrix. Kanchan (Pw-5) says that the prosecutrix suffered injury on her vagina on account of fall. Shehnaz (PW-15) who is the mother of the prosecutrix and who has lodged the report (Ex.P-15) is also hostile and she says that she does not know why her daughter bleeded. 11. The statement of the prosecutrix is contradictory and her mother and grand parents are not at all supporting the prosecution story. The suspicion is no proof, however, strong it may be. The evidence available on the record does not connect beyond reasonable doubt the accused-appellant with the commission of the crime. 12. For the reasons stated above the impugned judgment is liable to be set aside and the accused-appellant is entitled to acquittal.Accordingly the appeal of the accused-appellant is allowed, the impugned judgment dated 23.6.2006 is set aside anf the accused-appellant is quitted of the charge under Section 376 Indian Penal Code. The accused-appellant is in jail, e be released forthwith if not required in any other case.Appeal allowed. *******