SHANKAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellants against the judgment and order dated 1. 9. 1987 passed by the learned Addl. Sessions Judge, Bikaner in Sessions Case No. 15/86 by which he convicted both the accused appellants for the offence under Section 376 IPC and sentenced each of them to undergo RI for four years and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo RI for one year.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 28. 8. 1985 at about 8. 00 PM, PW5 Umedaram lodged a written report Ex. P/3 with the Police Station Nokha District Bikaner stating inter-alia that on 17. 8. 1985 at about 10. 00 AM, his daughter Rami, PW7 (hereinafter referred to as the prosecutrix) aged about 15 years was going to his field and when she walked near about 1 km. , on the way accused appellants met her and the accused appellant Shankar caughthold her hand and put on the ground and, thereafter, both accused appellants committed rape with her one by one. It was further stated in the report that when the rape was being committed by the accused appellants with the prosecutrix PW7 Rami, she made hue and cry and on hearing her cry, PW1 Modaram reached on the spot and he raised voice and then, the accused appellants left the prosecutrix PW7 Rami and ran away from the scene. It was further stated in the report that at that time, PW5 Umedaram himself was going to his field from the village and reached on the spot and thereafter, he took his daughter prosecutrix PW7 Rami to the village and thereafter, he went to PW4 Rampratap, Sarpanch and apprised him about the whole incident which had taken place with his daughter prosecutrix PW7 Rami. Upon this, PW4 Rampratap replied that he could do whatever he wanted. It was further stated in the report that on the same night, the accused appellants and their fathers having weapons with them came to the house of PW5 Umedaram and threatened him that in case report was lodged by him, they would kill him and they would also damage his crops and he (PW5 Umedaram) was not allowed to move from his house on that night. It was further stated in the report that since accused appellants were ruffian type of people and since he was harijan by caste, therefore, nobody prepared to help him and, therefore, the report was not lodged by him for so many days and report was lodged by him on 28. 8. 1985. On this report, police registered the case and chalked out regular FIR Ex. P/5 and started investigation. THE accused appellants Shankar and Rameshwar were arrested through arrest memos Ex. P/8 and Ex. P/9 respectively. THE prosecutrix PW7 Rami was got medically examined by CW1 Dr. D. K. Purohit for the purpose of ascertaining whether rape was committed with her or not and for ascertaining her age. For ascertaining her age, X-rays of her elbow, wrist and pelvis were taken and after seeing the X-rays, CW1 Dr. D. K. Purohit opined that her age was about 19 years. THE Certificate of age issued by CW1 Dr. D. K. Purohit is Ex. P/16 and the same was admitted by the learned counsel for the accused appellants during trial before the trial Court. THE Medico Legal Report of the prosecutrix PW7 Rami is Ex. C/1 where CW1 Dr. D. K. Purohit opined that it was not possible to say that rape was performed with her. He did not find any sort of injury on any part of her body. On quarry, he gave another report Ex. P/15 in which he further opined that no rape was performed with her recently within a period of two weeks. Thus, from the medical evidence, the following facts have emerged:- (1) That the radiological age of the prosecutrix PW7 Rami was about 19 years. (2) That no injury was found on any part of the body of the prosecutrix PW7 Rami, when she was being examined on 29. 8. 1985. (3) That there was no sign of recent sexual intercourse with the prosecutrix PW7 Rami. After usual investigation, police submitted challan for the offence under Section 376 IPC against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Session. On 4. 2. 1986, the learned Addl. Sessions Judge, Bikaner framed charges for the offence under Section 376 IPC against the accused appellants. THE charges were read over and explained to the accused appellants. THE accused appellants denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. THEreafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. Dr. D. K. Purohit was examined as CW1. After conclusion of trial, the learned Addl. Sessions Judge, Bikaner through his judgment and order 1. 9. 1987 convicted the accused appellants for the offence under Sec. 376 IPC and sentenced them in the manner as indicated above holding inter- alia:- 1. That sexual intercourse had taken place with the prosecutrix PW7 Rami. 2. That delay in lodging the report has been satisfactorily explained. 3. That since prosecutrix PW7 Rami was got medically examined on 29. 8. 1985 and the alleged incident took place on 17. 8. 1985, therefore, if injuries on her person were not found, it would not affect the prosecution case. 4. That prosecutrix PW7 Rami was forcibly raped by the accused appellants. 5. That prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Section 376 IPC. Aggrieved from the said judgment and order dated 1. 9. 1987 passed by the learned Addl. Sessions Judge, Bikaner, this appeal has been filed by the accused appellants.

(3.) IT may be stated here that best evidence for determination of age is the birth certificate or the school certificate and in case it is available, that would be considered the best evidence and so far as the medical evidence is concerned, since it has margin of error, it would be taken into consideration only when primary evidence which is found in the birth certificate or school certificate is not available.