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2011 DIGILAW 122 (RAJ)

Dashrath Kumar v. State of Rajasthan

2011-01-17

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - The appellant Dashrath Kumar s/o Kailash Das , b/c Vaishnav, r/o Jai Nagar, Police Station Shambhugarh, District Bhilwara has filed this criminal appeal, against the judgment and order dated 01.04.2009, passed by the learned Addl. Sessions Judge (Woman Atrocities) Cases , Bhilwara in Sessions Case No.76/2005, whereby he convicted the accused appellant under section 376/511 IPC to 5 years' rigorous imprisonment and a fine of Rs. 1,000/ and in default of payment of fine, to further undergo three months' rigorous imprisonment. 2. The brief facts of the case, giving rise to this appeal are that, on 16.10.2005 PW/1 Smt.Lalita submitted a written report Ex.P/1 (formal FIR Ex.P/2) at Police Station Sambhugarh , Bhilwara wherein it was stated that on 15.10.2005 when she returned home from her field, she saw Dashrath Kumar giving chocolates to her daughter Antima , from the shop of Rampal. After ten minutes, she heard the cry of her daughter Antima, on which she went to the house of Dashrath, where the doors were closed from inside. The asked to open the door and then she saw her daughter Antima in a frightened position and Antima told her about the incident and she in turn narrated the incident to PW/8 Kamla and PW/9 Pushpa . On the basis of this report SHO, Police Station Shambhugarh , Bilwara, registered a case as C.R. No.50/2005 for the offence under section 376/511 IPC and started investigation. 3. During the course of investigation police recorded the statement of Antima prosecutrix and other witnesses and got the victim medically examined . The accused was arrested on 16.10.2005 and after completion of investigation police submitted the charge sheet against the accused appellant for the offence under section 376/511 IPC to the court of concerned Judicial Magistrate, who committed the case to the court of Sessions, from where the case was transferred to the court of learned Addl.Sessions Judge (Women Atrocities) Cases, Bhilwara for trial. The learned Addl. Sessions Judge ordered to frame charges for offence under section 376/511 IPC. The accused denied the charges and claimed to be tried. 4. The prosecution examined as many as 17 witnesses and got exhibited certain documents in support of its case. The statement of the accused was recorded under section 313 Cr.P.C. The accused appellant got examined four witnesses and also exhibited certain documents in defence. 5. The learned Addl. The accused denied the charges and claimed to be tried. 4. The prosecution examined as many as 17 witnesses and got exhibited certain documents in support of its case. The statement of the accused was recorded under section 313 Cr.P.C. The accused appellant got examined four witnesses and also exhibited certain documents in defence. 5. The learned Addl. Sessions Judge (Women Atrocities) Cases, Bhilwara vide its order dated 04.01.2009 convicted the accused appellant as stated above. 6. Being aggrieved by the said order of the learned Addl.Sessions Judge (Women Atrocities) Cases, Bhilwara dated 04.01.2009, the accused appellant Dashrath Kumar, has preferred this criminal appeal. 7. The learned counsel for the appellant submitted that the offence charged against the accused appellant has not been proved beyond the extent of section 354 IPC and the learned trial court erred in convicting the accused appellant under section 376/311 IPC. 8. I have perused the statement of witnesses recorded during the course of trial. Out of the 17 witnesses examined by the prosecution, PW/1 Lalita who is the mother of the prosecutrix, who is not an eye witness and she only deposed that on 15.10.2005 at about 01.20 PM, she heard loud cries of her daughter Antima, and she went to the house of Dashrath, where she found the closed doors and after some time Dashrath opened the door and she went to the upper story ,where Antima was weeping and Antima told her about the incident. PW/8 Smt. Pushpa and PW/9 Smt. Kamla Devi are the witnesses to whom the mother of the prosecutrix PW/1 Lalita, informed about the incident. 9. PW/16 Dr.Anil Lahoti is the medical officer who examined Dashratah about his potency. He further deposed that he examined Antima, daughter of Gautam Jain, with regard to commission of rape. No external injury was found on the body of Antima. For further examination he referred Antima to the Gynecologist. 10. Learned counsel for the accused appellant contended that on examination made by PW/16 Dr. Anil Lahoti, no external injury was found on the body of Antima and there is only evidence on record that just after the offence the panty of the prosecutrix was found to be wet and thus the offence of the accused appellant cannot travel beyond Section 354 IPC. 11. Anil Lahoti, no external injury was found on the body of Antima and there is only evidence on record that just after the offence the panty of the prosecutrix was found to be wet and thus the offence of the accused appellant cannot travel beyond Section 354 IPC. 11. The learned Public Prosecutor and the learned counsel for the complainant argued that the offence under section 376/511 IPC has been proved beyond doubt by the prosecution, and on chemical examination, human semen was found on the panty of prosecutrix, which shows that the accused has attempted to commit the offence of rape. 12. I have considered the rival contentions of both the parties and perused the judgment. 13. As no external injury was found on the body of the prosecutrix and the presence of the human semen prove this fact that the accused appellant has assaulted or used force with an intention to outrage her modesty. But it cannot be said that the accused attempted to commit the offence of rape because no signs of any injury or any attempt made by the accused were found on the body of Antima. The only evidence available against the accused is that of Antima, who deposed in her evidence about the fact of Dshrath giving her chocolate. The rest of the evidence she deposed were, only by gestures but even from the evidence of gestures, the evidence regarding committing of rape cannot be believed because as per Ex.P/14, no external injury was found on the thighs, abdomen or private part and even the doctor opined that "no definite opinion can be given about recent sexual assault. However, the possibility cannot be denied". 14. In my considered view , where only the semen was found on the panty of the prosecutrix, without there being any external injuries on the private part or any other part of the body, no offence under section 376 or 376/511 IPC can be said to be proved and the offence against the accused can only be said to be proved to the extent of section 354 IPC. 15. Accordingly, the conviction of accused appellant Dashrath, under section 376/511 IPC, is set aside and the accused appellant is convicted for the offence under section 354 IPC. 16. 15. Accordingly, the conviction of accused appellant Dashrath, under section 376/511 IPC, is set aside and the accused appellant is convicted for the offence under section 354 IPC. 16. So far the sentence part is concerned, the learned trial court convicted the accused appellant for the offence under section 376/511 IPC to 5 years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. Now since the accused has been found guilty for the offence under section 354 IPC, therefore, he is sentenced to two years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months' rigorous imprisonment. 17. Accordingly, the appeal preferred by the accused appellant Dashrath Kumar is partly allowed. His conviction and sentence under section 376/511 IPC is set aside and he is convicted for the offence under section 354 IPC and is sentenced for the above offence, as indicated above.Appeal Partly Allowed. *******