SHAKOOR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been preferred by the accused appellant against the judgment and order dated 13. 5. 87 passed by learned Sessions Judge, Churu in Sessions Case No. 86/86 by which the learned Sessions Judge acquitted the accused appellant for offence under Section 376 I. P. C. but convicted him under Section 376/511 I. P. C. and sentenced him as under : Offence Sentence awarded 376/511 IPC- 4 years' R. I. and a fine of Rs. 250/- in default to further undergo 1 month's R. I.

(2.) THIS appeal arises in the following circumstances: (i) That on 15. 6. 86 at about 7. 30 p. m. , P. W. 7 Taramani D/o Kalu Ram, aged 11 years, resident of Khivasar lodged an oral report with the police station Dudhvakhar, Dist. Churu before P. W. 12 Jagdish Singh stating that on 15. 6. 86, she went to the field for grazing cattle and at about 11 a. m. , the accused appellant who was hidden near the field of Usman came suddenly towards her and caught hold of right hand and after embracing her, put her on the ground and he did not allow her to cry and with an intention of committing rape with her, he removed her Lehanga. It was further stated in the report that she pushed him with her hands, but he did not come under her control, but in doing so, his hand was removed from her mouth and then she cried and after her mouth and then she cried and after hearing her cries, her uncle P. W. 9 Bisna Ram who was coming from his field, came nearer to her, then after leaving P. W. 7 Taramani, the accused ran away. It is stated in the report that had P. W. 9 Bisna Ram would not have come, the accused would have committed rape with her. After coming to her house, she narrated the whole story to her mother P. W. 8 Durgi and P. W. 8 Durgi narrated the whole story to P. W. 2 Jaluram and thereafter this report was lodged. (ii) On this report, regular FIR Ex. P/9 for offence under Section 376/511 I. P. C. was chalked out by P. W. 12 Jagdish Singh and investigation was started. (iii) During investigation, accused appellant was arrested on 4. 7. 86 through Fard Ex. P/4 and medical examination of the prosecutrix P. W. 7 Taramani was got conducted by Dr. P. W. 3 Smt. Prem Kunwar Rathore on 16. 6. 86 and the medical examination report is Ex. P/3. (iv) During investigation, police came to the conclusion that it was a case of complete rape and therefore, challan against the appellant was filed by the police for offence under Section 376 I. P. C.

(3.) IN this appeal, following submissions have been made on behalf of the accused appellant: 1. For the sake of arguments, findings of learned trial Judge are accepted, no case for offence under Section 376/511 I. P. C. is made out and at the most case of indecent assault or outraging modesty of P. W. 7 Taramani is established and, therefore, offence if found proved against the accused appellant does not travel beyond Section 334 I. P. C. and thus, he should be convicted for offence under Section 354 I. P. C. in place of 376/511 I. P. C. (ii) If Court comes to the conclusion that any offence has been committed by the accused appellant, he should be released for a period already undergone as the incident took place on 15. 6. 86 and 15 years have passed and further more, in this respect, it has been argued that at the time of commission of offence, the accused appellant was below 21 years of age and he was 18 years of age, thus to send this man to Jail, it will not be in the interest of justice.