Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1185 (RAJ)

Padma v. State of Rajasthan

2013-07-05

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the appellant against the judgment dated 26.3.1990 passed by the learned Sessions Judge, Jalore in Sessions Case No. 35/1989 whereby the appellant was convicted for the offence under Section 376 I.P.C. and was sentenced to ten years R.I. with a fine of Rs. 100/-, in default of payment of fine to undergo one month's simple imprisonment. 2. Succinctly stated the facts of the case are that an F.I.R. Ex.P-5 was lodged by one Bechraram at the P.S. Bagoda on 22.4.1989. As per the allegations levelled in the F.I.R., on the previous day the first informant's cousin sister Mst. 'S' accompanied with the daughter of Manrupa was breaking beans from the Kherji tree. They started back after collecting the beans at the time Padma accosted her and forcibly took her to the field of Pancha Purohit and started to commit rape upon her. The girl child who was accompanying the prosecutrix started shouting on which Padma Purohit who was passing from nearby came there and on seeing him the appellant got up from the prosecutrix and ran away. Padma Purohit brought the prosecutrix back to her home whereafter the night fell. Accordingly, the report was lodged on the next day. 3. On the basis of the report, an F.I.R. No. 31/1989 was registered at P.S. Bagora for the offence under Section 376 I.P.C. and investigation commenced. During the course of investigation, the prosecutrix was subjected to medical examination and her torn clothes were recovered. As per the Medicolegal Report Ex.P-6 Mst. 's' aged about 14 years was found having three injuries on her person, two being on the cheek and one being on the thigh. Her Vaginal swab and smear were preserved for chemical examination. At the conclusion of the investigation, the police filed a charge-sheet against the appellant for the offence under Section 376 I.P.C. 4. The case was committed to the Court of Sessions Judge, Jalore. The learned Sessions Judge proceeded to frame charge against the appellant for the offence under Section 376 I.P.C. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses in support of its case. The case was committed to the Court of Sessions Judge, Jalore. The learned Sessions Judge proceeded to frame charge against the appellant for the offence under Section 376 I.P.C. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses in support of its case. The appellant in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution and submitted that the villagers wanted to turn him and his parents out of village because of a dispute of agricultural land and thus a false case of rape had been foisted against him. He examined two witnesses in support of his defence. The learned trial Judge at the conclusion of the trial held the appellant guilty for the offence under Section 376 I.P.C. and convicted and sentenced him as above. Hence, this appeal. 5. Mr. Suresh Kumbhat, learned counsel for the appellant vehemently urged that the conviction of the appellant in this case is absolutely improper and illegal and deserves to be set aside. He submitted that the appellant had been falsely implicated at the instance of Padma Purohit with whom the appellant was having a dispute of agricultural land. He pointedly submitted that the Medical Jurist PW-7 Dr. Madha Ram who examined the prosecutrix admitted that the prosecutrix was not having any injury on her private parts and her hymen was also found intact. He thus argued that the allegation of the prosecutrix that she was forcibly raped remained unsubstantiated and therefore, the conviction of the appellant for the offence under Section 376 I.P.C. was absolutely uncalled for. Learned counsel further submitted; that the testimony of the prosecutrix was full of contradictions and vacillating. He further argued that PVV-5 the child witness Mst. 'B' in her cross-examination failed to support the prosecution story and therefore, the conviction of the appellant on the basis of the sole uncorroborated testimony of the prosecutrix was improper. He, therefore, prayed that the appeal filed by the appellant deserves to be accepted. 6. Per contra, learned Public Prosecutor vehemently opposed the submissions of the learned counsel for the appellant. He urged that the prosecutrix was a young girl of 14 years when the incident took place and there was no reason for her to have falsely implicated the appellant. 6. Per contra, learned Public Prosecutor vehemently opposed the submissions of the learned counsel for the appellant. He urged that the prosecutrix was a young girl of 14 years when the incident took place and there was no reason for her to have falsely implicated the appellant. He further argued that merely because Padma Purohit was allegedly having a dispute of agricultural land with the accused that could not have been the reason for the prosecutrix to have put her own prestige and reputation at stake by filing the false case of rape. Thus, he contended that the appeal is meritless and deserves to be rejected. 7. Heard and considered the rival arguments advanced at the bar. Perused the impugned judgment as well as the record. The principal testimony in this case is that of the prosecutrix PW-4 Mst. 'S'. She in her testimony has given graphic details of the forcible sexual assault made on her by the appellant. Though she has been given a suggestion that she had falsely implicated the appellant because of the dispute going on between the appellant and Padma Purohit but she denied the said suggestion. The prosecutrix and Padma Purohit belong to different castes. The appellant could not lead any evidence to show as to why the prosecutrix would go to the extreme extent of filing a false case of rape and thereby bringing a stigma on herself and that too for a person totally unconnected and unrelated with her. Nothing significant could be elicited in her cross-examination as to why she would falsely implicate the appellant for the heinous crime of rape. PW-5 Mst. 'B' the child witness aged 7 years who was accompanying the appellant at the time of incident. However, in the cross examination she broke down and admitted that she did not see Padma forcibly taking away the prosecutrix. Significantly enough when the appellant was examined under Section 313 Cr.P.C. he did not take any plea that he had been falsely implicated in this case at the instance of Padma Purohit or that he was having any enmity with Padma Purohit. 8. The F.I.R. in this case was promptly filed just on the next day of the occurrence. The testimony of the prosecutrix is thoroughly corroborated by the evidence of Padma Purohit PW-11 who stated that he saw the appellant lying on top of the girl. 8. The F.I.R. in this case was promptly filed just on the next day of the occurrence. The testimony of the prosecutrix is thoroughly corroborated by the evidence of Padma Purohit PW-11 who stated that he saw the appellant lying on top of the girl. The clothes worn by the prosecutrix at the time of the incident were recovered by the police during investigation in a torn condition. Thus, the testimony of the prosecutrix which is corroborated by the independent witness Padma Purohit is found fit to be relied upon so far as incident is concerned. 9. Padma Purohit has been examined as PW-11 by the prosecution. He stated that he was passing by the field of Pancha Purohit and heard cries coming from there. He went to the field and saw that the appellant was lying on top of the prosecutrix. He shouted on which the appellant got up and ran away. Thereafter, he took the girl to her home. Nothing significant could be elicited in his cross-examination. 10. Now, coming to the aspect as to whether the appellant actually completed the act of rape upon the prosecutrix or not. As has been observed above, the Medical Jurist who conducted the medical examination of the prosecutrix viz. PVV-7 Dr. Madha Ram found her age to be 14 years and three injuries were found on her person out of which two were on her cheeks and one was on her left thigh. The Medical Jurist could not give any specific opinion regarding rape having been committed upon the prosecutrix. The hymen of the prosecutrix was found intact. As per the F.S.L. Report which though not exhibited is available on record, semen was not detected in the vaginal swab and vaginal smear of the prosecutrix. Therefore, this Court is of the opinion that the appellant at best was attempting to commit rape upon the prosecutrix and in the meanwhile, when the child witness who was accompanying the prosecutrix and Padma Purohit raised a hue and cry, the appellant could not succeed in completing his evil design to rape the prosecutrix and thus the prosecutrix was saved from the culmination of the sexual assault and the act remained limited to an attempt. Looking to the opinion of the Medical Jurist, who examined the prosecutrix available on record, the appellant appears to have been unsuccessful in penetrating the prosecutrix. 11. Looking to the opinion of the Medical Jurist, who examined the prosecutrix available on record, the appellant appears to have been unsuccessful in penetrating the prosecutrix. 11. In view of the aforesaid discussion, the appeal deserves to be accepted in part. 12. Accordingly, the appeal is allowed in part. While upholding the guilt of the appellant, his conviction is altered from the offence under Section 376 and instead he is convicted for the offence of attempt to commit rape punishable under Section 376/511 I.P.C. and is sentenced to three years R.I. The appellant is on bail. His bail bonds are cancelled. He shall surrender and serve out the remaining portion of the sentence. The trial Court shall forthwith issue warrant of arrest for securing the presence of the appellant. Record be sent back.Appeal partly allowed. *******