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2013 DIGILAW 880 (RAJ)

Kishori v. State of Rajasthan

2013-05-03

AMITAVA ROY

body2013
JUDGMENT 1. - The appellant has impugned the judgment and order dated 18.10.1985 passed by the learned Additional Sessions Judge, Dausa in Sessions Case No. 33/83 convicting him under Sec. 376 IPC and sentencing him to rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for further period of six months. 2. I have heard Mr. Vipul Jaiman appearing on behalf of Mr. S.S. Sunda, learned counsel for the petitioner and Mr. Javed Choudhary, Public Prosecutor, Rajasthan. 3. In short, the prosecution case is that on 5.6.1983, one Kishorilal lodged an FIR with the Bandikui Police Station alleging that while he had been away to the house of Babu Lal Sharma to store limestone, his minor daughter, Sushila, aged about 13 years, had been herding goats in a nearby jungle. At that time, Kishore S/o. Surjan Meena, at about 3:00 p.m., intercepted her and forcibly committed sexual intercourse with her. When his daughter informed about the incident to her mother, then he, having come to learn thereof, prepared a report to be lodged with the police. At that, one Bhajani Meena wrested the report from him, and instead, convened a panchayat, which saddled appellant-Kishore with a fine of Rs. 602/-, and on other additional terms, recorded their decision to resolve the controversy. According to the informant, delay was in view of these developments and the FIR was ultimately lodged on 8.6.1983. On this FIR, the police registered a case under Sec. 376/354 IPC against the appellant, and eventually, laid a charge-sheet under Sec. 376 IPC against him. When charge was framed against the appellant under this Section of the IPC, he denied the same. At the trial, several witnesses, including the prosecutrix and the doctor, who had performed medical examination on her, were examined. In course of his examination under Sec. 313 Cr.P.C., he reiterated his denial of the charge and pleaded innocence. Through his defence witnesses, he brought on record the evidence of a quarrel between his brother and the prosecutrix and her parents on 15.5.1983 i.e. three weeks before the alleged incident, to establish that he had been framed in the case. 4. The informant PW-2, while reiterating the version set out in the FIR, claimed that her daughter, at the time of the incident, was aged about 13 to 14 years. 4. The informant PW-2, while reiterating the version set out in the FIR, claimed that her daughter, at the time of the incident, was aged about 13 to 14 years. Her mother Bhagoti PW-3 also testified in the same lines. She however, added that the blood stained ghaghra of the prosecutrix was washed after three days of the incident. The victim, PW-4, while implicating the appellant to be the offender, stated that while she was resisting the offending act, then the son of Bhajani Meena and another boy, whose name she was unaware of, reached the place of occurrence, and on seeing them, the appellant fled away. She also stated that her wearing apparels got stained by blood. Dr. B.S. Thakuria PW-1, in his evidence, stated that he had examined the prosecutrix on 9.6.1983, but there was no scratch on her body. He deposed as well that though the hymen of the victim was torn and there was tenderness and redness on her private parts, there was no other injury noticeable. He however, could not certify that at that time, the prosecutrix was aged between 12 to 13 years. PW-5 Dr. R.S. Modi, Radiologist, stated that on the basis of the radiological test, the age of the victim was between 12 to 14 years. The learned trial Court, by the impugned judgment and order, on the basis of the evidence on record, convicted and sentenced the appellant as above. 5. Mr. Jaiman has argued that the prosecution case, on the ground of delay alone, ought to be rejected. He argued further that the failure of the prosecution to examine two other eye witnesses referred to by the victim, also, is fatal and that the appellant is entitled to be acquitted of the charge. Referring to the evidence of PW-5 in particular, he contended that the opinion that the victim, at the relevant time, was aged between 12 to 14 years, was subject to the clarification provided by the witness in the cross-examination that there is always a margin of 2 to 3 years in this regard, depending on physical stature, food intake and the climatic conditions. As neither the proceedings of the panchayat have been proved by the prosecution nor the seized wearing apparels of the victim would disclose about stains of the semen or blood, according to the learned counsel, the charge against the accused-appellant had not been proved, and thus, he is entitled to be acquitted. That the mother of the prosecutrix, PW-3 had deposed against existence of any injury on her private parts, had been highlighted as well to plead the innocence of the appellant. 6. The learned Public Prosecutor has urged that the evidence of the prosecutrix PW-4, per se, was enough to implicate the appellant. Further, the medical evidence with regard to tenderness and redness of the private parts of the victim, did fully corroborate her version. As PW-5 did clearly indicate her age, at the relevant time, to be less than 16 years, the conviction of the appellant for rape is valid, and that, no interference is called for, he urged. 7. I have examined the materials on record. The arguments have also been duly analyzed. 8. In view of the explanation provided by PW-2, in my opinion, the learned trial Court had rightly not rejected the prosecution case on the ground of delay. The omission of the prosecution however, to examine the two boys who, according to the victim, were the eye witnesses to the incident, and that too, without any explanation, renders its case shaky. There is no denial of the fact that hardly three weeks before the incident, there had been confrontation between the brother of the appellant and family of the prosecutrix. There was no semen or blood on the seized wearing apparels of the victim, and further it is evident from the testimony of the investigating officer that no blood stain was also located at the place of occurrence. This assumes significance in view of the statement made by the victim girl that she bled profusely because of the injury sustained by her. Her mother PW-3, during her cross-examination however, admitted of not having seen any injury on the private parts of the victim. Medical evidence also does not disclose any bleeding wound in her body. The age of the victim, as the evidence of PW-5 discloses, though has been stated to be 14 to 16 years, appears to be flexible contingent on individual conditions. Medical evidence also does not disclose any bleeding wound in her body. The age of the victim, as the evidence of PW-5 discloses, though has been stated to be 14 to 16 years, appears to be flexible contingent on individual conditions. Though PW-2, the informant mentioned about a panchayat on the same issue, there is no evidence on record to that effect to even prima-facie hint at the involvement of the appellant in the alleged offence. 9. On a cumulative consideration of all above, having regard to the nature of the burden on the prosecution to prove a charge in a criminal case, I am inclined to grant benefit of doubt to the appellant.Ordered accordingly.The impugned judgment and order is set aside. The appellant is acquitted of the charge and he is hereby discharged from his bail bonds. The appeal is allowed.Appeal allowed. *******