DULI CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) this appeal filed under section 374(2), Cr.P.C. has been directed against the judgment dated 16-7-1991 passed by the learned special judge for SC/ST (prevention of Atrocities Act Cases)-cum Additional Sessions judge, Bikaner, whereby he convicted the appellant for the offence under section 376, IPC and sentenced him to seven years rigorous imprisonment and a fine of Rs.500.00;in default to further undergo two months imprisonment.

(2.) the relevant facts of this case are that Tara Chand (P.W.2) used to cultivate his land situated in Chak 3 ADM. He also lived there in his hamlet (Dhani) and that his parents used to reside in village Kodiwan. Nearby his field, the agricultural land of appellant Duli Chand is situated, who resides in his Dhani in Chak 8 BBM. Tara Chand and the appellant used to help each other in irrigating their fields. Tara Chands wife, Smt. Chawli (P.W.1) aged about 19-20 years used to call appellants wife as her mausi and respect the appellant. On 29/12/1989, the appellant was irrigating the fields of Tara Chand, who was making preparations for going to his village Kodiwan to fetch on cow thereform. It is alleged that the appellant assured Tara Chand that in his absence his wife will come to Tara Chands Dhani and sleep with Smt. Chawli. On this assurance, Tara Chand left his Dhani at about 1.00 p.m. it is alleged that on the same day at about 8.00 p.m. the appellant came to the Dhani of Smt. Chawli and told her that since his wife had fallen ill, she should accompany him to his Dhani. Smt. Chawli had a daughter aged about six months. It is the case of the prosecution that the appellant lifted the child and Smt. Chawli accompanied him; that when they reached near the sand dunes situated about one square (Murabba) away form Tara Chands Dhani the appellant put the child on the ground and suddenly caught hold of Smt. Chawli by clasping her in his arms. The appellant forcibly fell her down and committed rape. It is alleged that Smt. Chawli raised hue and cry and also resisted by her hands and legs, but nobody came to her rescue. It is further alleged that the appellant thereafter left Smt. Chawli weeping and went away. Thereupon, she came back to her Dhani and stayed there overnight. On 30/12/1989, she went to the Dhani of Kana Kumhar, where she stayed till 31/12/1989. there she narrated her useful tale to Smt. Sunmitra W/o Kana (P.W.4) and Smt. Radha w/o Virbal Kunar (P.W.5). Tara Chand returned from Kodiwan and reached his Dhani in the night of 31st Dec., 1989, which was locked. Thereupon, he immediately went to the appellant, who informed him that Smt. Chawli was staying in Kanas Dhani. Tara Chand reached the Dhani of Kana Ram at about 11.00 p.m. and while he was returning there from and coming to his Dhani, Smt. Chawli narrated the whole incident to him in the way. On 1/01/1990. Tara Chand collected Virbal, Kana, Hanumana Ram and Lichhman Singh Rajput and told them about the incident, she advised him to lodge report in the police. Thereupon, Tara Chand went to Kodiwan to fetch his father Raja Ram and along with him, lodged an oral report to rajesh Beniwn (P.W.6).S.H.O., P.S.khajuwala (proposer) on 2-1-90 at 5.30 p.m. the S.H.O. recorded the said information as parcha Bayan (Ex.p.1). on the same day at 8.00p.m. a case was registered at P.S. pugal, vide FIR (Ex.p.9). on 3-1-90, the S.H.O. inspected the site and prepared site plan Ex.p.2 and its memo Ex. P.9.on the same day, Dr. P.k. Gehlot (P.W.3)examined Smt. Chawli and found that her hymen was old torn, which was healed. He did not find any marks of injury on her private parts. Her cervix and vagina were found to be healthy. The vagina admitted two fingers easily. Her cervix was soft, uterus was inverted and ante flexed of 6-8 weeks size. Dr. Gehlot, vide his report Ex.p.3, opined that Smt. Chawli was used to sexual intercourse and that no opinion could be given regarding a recent sexual intercourse. He, however, preserved the viginal swabs and smear taken from her vagina, which were sent to the forensic Science Laboratory. However, no report from the F.S.L. was received. After usual investigation, a charge-sheet was filed before the judicial Magistrate No.1, Bikaner, who committed the case to the learned trial judge. The appellant pleaded not guilty. The prosecution examined as many as eight witnesses and relied on documents Ex.p.1 to p-13. The appellant in his plea recorded under section 313, Cr.p.c. denied all the circumstances appearing against him and asserted that a false case had been foisted against him. However, he did not examine any witness in his defence. The learned trial judge held that the delay in filing the FIR was satisfactorily explained; that though Smt. Sumitra (p.w.4) and Smt. Radha (p.w.5) did not support the prosecution case and the medical evidence also did not disclose any external injury on the private parts of Smt. Chawli or any seminal stain on her clothes, still there was no reason to dis-believe her statement. He accordingly, by the impugned judgment convicted and sentenced the appellant. Hence, this appeal.

(3.) I have heard learned counsel for the appellant and the learned public prosecutor at length and carefully perused the record of the lower court.