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2013 DIGILAW 1247 (RAJ)

Bhanwar Lal v. State of Rajasthan

2013-07-11

AMITAVA ROY

body2013
JUDGMENT 1. - Heard Mr. Rinesh Gupta, learned counsel appearing on behalf of the appellant and Mr. Javed Choudhary, learned Public Prosecutor. 2. By the judgment and order dated 22.2.1988 rendered by the learned Sessions Judge, Jhalawar, in Sessions Case No. 165/1986, the appellant Bhanwarlal has been convicted under Section 376 IPC and sentenced to suffer rigorous imprisonment for twelve years and pay a fine of Rs. 2000/- and in default of payment of fine, to undergo further six months' simple imprisonment. 3. The genesis of the prosecution case lies in the F.I.R. lodged on 1.6.1986 by Prabhulal, the father of the prosecutrix Prem Bai, alleging that on 25.5.1986, while he was away to attend a marriage at Bakani, her daughter was sitting along with her grand mother by the side of a nearby well. Then the accused appellant came there and offered to cut grass for her cattle and requested her to accompany him. The informant alleged that her daughter did go with him, where after near the field of one Ratna Chamar, the accused appellant committed forcible rape on her, so much so that she started bleeding from her private parts. The informant, while mentioning that her daughter at the relevant point of time was aged about 7/8 years, also stated that her daughter did not disclose about this incident, as she had been threatened to be killed, if she did so. The informant stated that after his return, the narration of the incident was recited to him by his wife, to whom his daughter in the meanwhile had disclosed the same. On this information, a case was registered under Section 376 IPC against the appellant and on the conclusion of the investigation, a charge-sheet was submitted under the said provision of law. He was arrested as well. In the course of investigation, the prosecutrix was medically examined and her vaginal swab was collected and sent for forensic examination. The accused appellant was eventually made to stand to trial, as he denied the charge. The prosecution examined several witnesses including the prosecutrix, her parents (PW 5 and PW 7) and the doctor, P.W.1, who had medically examined her. The appellant in his statement under Section 313 Cr.PC denied the charge. He did not adduce any evidence. He was, however, convicted and sentenced by the impugned judgment and order. 4. The prosecution examined several witnesses including the prosecutrix, her parents (PW 5 and PW 7) and the doctor, P.W.1, who had medically examined her. The appellant in his statement under Section 313 Cr.PC denied the charge. He did not adduce any evidence. He was, however, convicted and sentenced by the impugned judgment and order. 4. Learned counsel for the appellant has argued that in view of the inexplicable delay in filing the F.I.R., the prosecution case ought to be rejected on that count alone. Referring to the medical evidence, he has argued that it being apparent therefrom that hymen of the prosecutrix had been found to be intact with no significant injuries on her body, the charge of forcible rape levelled against the appellant had remained unproved. He pointed out that the report of the F.S.L. qua the vaginal swab of the prosecutrix had not been proved and that the doctor, PW 1, did not express any categorical opinion that she had been raped as alleged. It has been argued further that the appellant at the relevant point of time was aged about 80 years and, thus, on that count as well, the act attributed to him, is wholly unbelievable. 5. Learned Public Prosecutor, on the other hand, has argued that the evidence on record amply proves the act of attempt to commit rape and, thus, no interference with the impugned judgment and order is called-for. 6. It would be appropriate to survey summarily the evidence of the relevant witnesses before dealing with the rival arguments. 7. PW 1 Dr. Hemant Kumar did not express any opinion on the aspect as to whether rape had been committed on the prosecutrix. The report following her medical examination discloses that no mark of violence was found on her body and that her hymen was intact. It was opined that the prosecutrix was a virgin and was not habituated to sexual intercourse. Though her clothes, as seized, did disclose the presence of blood stains and semen and her vaginal swab had been sent for forensic examination, no report to that effect was proved by the prosecution. No injury in her private parts, as complained, was detected as well. This is significant in view of the opinion that her age at the relevant point of time was approximately eight years. 8. No injury in her private parts, as complained, was detected as well. This is significant in view of the opinion that her age at the relevant point of time was approximately eight years. 8. PW 6 the prosecutrix, however, substantially reiterated the version in the F.I.R. and imputed forcible rape on her by the appellant. She clarified in the cross examination that at the relevant point of time, on the date of incident, her father was in the village. 9. PW 5 Prabhulal and PW 7 Heera Bai are the father and mother of the prosecutrix and they have only recited about the incident as reported to them by the prosecutrix. PW 5 Prabhulal, the informant, further tried to explain the delay in filing the F.I.R. stating that he, on the date of incident, was out of Station and had returned only three days thereafter. 10. The contradiction in the evidence of the prosecutrix and her father about his availability in the village on the date of incident in view of delay in filing the F.I.R., cannot be lightly discarded, having regard to the seriousness of the charge. The evidence of the prosecutrix about forcible rape on her in view of the medical evidence, cannot be accepted without a grain of salt. She being assessed to be aged only eight years at that point of time, if her testimony of forcible act of sexual intercourse is accepted, severe injuries on her private parts ought to have been detected. Though she was medically examined about a week after the incident, to reiterate, her hymen was found to be intact and there was no mark of violence on her body. As referred to herein-above, the report of the forensic examination is not forthcoming and, therefore, it is difficult to conclude as to whether her vaginal swab and her clothes did really show the presence of human semen. It is noticeable that though the appellant claims to be aged about 80 years at the time of occurrence, there is no evidence forthcoming to establish his capability to commit an act of sexual intercourse then. 11. On a conjoint consideration of the above, I am of the view that the prosecution has not been able to prove the charge against the accused appellant beyond all reasonable doubt. He is, thus, entitled to benefit of doubt. 12. Resultantly, the appeal is allowed. 11. On a conjoint consideration of the above, I am of the view that the prosecution has not been able to prove the charge against the accused appellant beyond all reasonable doubt. He is, thus, entitled to benefit of doubt. 12. Resultantly, the appeal is allowed. The impugned judgment and order dated 22.2.1988 rendered by the learned Sessions Judge, Jhalawar, is set aside. Appellant is acquitted of the charge under Section 376 IPC. The bail bonds would stand discharged.Appeal allowed. *******