VINAY KRISHNA GHATAK Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 28. 11. 2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 47/2001 by which he convicted the accused appellant for the offence under section 376 IPC and sentenced to undergo seven years RI and to pay a fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for three months.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 4. 6. 2000 at about 7. 15 PM, PW2 Monika (hereinafter referred to as the prosecutrxi) lodged an oral report (Ex. P/i) with the Police Station Raj Nagar District Rajsamand to Sunderlal Soni, who was Incharge of that Police Station, stating inter-alia that the accused appellant, who was doctor by profession, was known to her father and the accused appellant had brought to her from her father's house from Bengal two months back for doing the domestic work. THE prosecutrix has further stated in her report Ex. P/1 that she used to work at the house of the accused appellant and asked to keep the children and she also used to perform other domestic work. THE prosecutrix has further stated in her report Ex. P/1 that on 27. 5. 2000 she was sleeping in the TV room and the wife of the accused appellant was also seeing TV, but she did not know when the wife of the accused appellant had left that room and in the night, when her clothes were being pulled, she awoke from the sleep and at that time, she found the accused appellant sitting there, who after making her undressed, committed rape with her and when she tried to make hue and cry, her mouth was pressed. THE prosecutrix has further stated in her report Ex. P/1 that after that incident, she continuously slept for whole next day (sunday) and she awoke in the evening, but she did not inform that incident even to the wife of the accused appellant, but asked the wife of the accused appellant that she should be allowed to go back to home and on this, the wife of the accused appellant assured that she would be sent. THE prosecutrix has further states in her report Ex. P/1 that on 2. 6. 2000 when she was seeing TV, the wife of the accused appellant asked her to go with water on the roof where the accused appellant was there and thereupon, she went on the roof alongwith water where the accused appellant put her on the bed and committed rape with her and when she tried to make hue and cry, she was threatened and that incident took place at about 11. 30 PM in the night and, thereafter, she came back from the roof, but she did not tell about this incident even to the wife of the accused appellant. THE prosecutrix has further stated in her report Ex. P/1 that when she found the chance and when nobody was in the house, she took her clothes and left the house of the accused appellant and after sitting in the Bus, she reached kelwa where she asked for the Bus which was to go to Delhi. THEreafter, many people assembled there and she was sent to Police Station, where she lodged that report Ex. P/1. In her report Ex. P/1, the prosecutrix has further stated that she had washed those clothes which she was wearing at the time of commission of rape with her by the accused appellant. On this report Ex. P/1, Sunderlal Soni registered the case and chalked out regular FIR Ex. P/2 and the investigation was conducted by PWIO Kishan Singh, who was at the relevant time SI, Police Station Raj Nagar. During investigation, prosecutrix PW2 Monika was got medically examined by PW4 Dr. B. P. Jain and Dr. Sunita Jain for the purpose of ascertaining whether rape was committed with her or not and both doctors have given their report Ex. P/4 and the injury report of the prosecutrix is also Ex. P/4. THE prosecutrix PW2 Monika was also got medically examined by PW4 Dr. B. P. Jain and Dr. Sunita Jain for the purpose of ascertaining her age and the report about her age is Ex. P/5 where the age of the prosecutrix was assessed about between 15 to 17 years. THE statement of the prosecutrix PW2 Monika under section 164 Cr. P. C. was recorded and the same is Ex. P/6. THE accused appellant was arrested through Ex. P/13 on 5. 6. 2000. After usual investigation police submitted challan for the offence under Section 376 IPC against the accused appellant before the Court of Magistrate and from where the case was committed to the court of Session and, thereafter, the case was transferred to the Court of Addl. Sessions Judge (Fast Track), Rajsamand. On 24. 3. 2001, charge for the offence under section 376 IPC was framed against the accused appellant stating that the committed rape with the prosecutrix on 27. 5. 2000 and 2. 6. 2000. THE charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trail, the prosecution examined as many as 10 witnesses and got exhibited several documents. THEreafter, statement of the accused appellant under section 313 Cr. P. C. was recorded. No evidence in defence was produced. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Rajsamand through judgment and order dated 28. 11. 2001 convicted and sentenced the accused appellant for the offence under section 376 IPC in the manner as indicated above holding inter-alia :- 1. That at the time of alleged incidents, the age of the prosecutrix PW2 Monika was above 16 years. 2. That the theory of consent as put forward by the defence was rejected and other submissions were also rejected and it was held that the accused appellant committed rape with the prosecutrix PW2 Monika against her will. Aggrieved from the said judgment and order dated 28. 11. 2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand, the accused appellant has preferred this appeal.

(3.) THE medical evidence with regard to age of the prosecutrix PW2 Monika is found in the report Ex. P/5 prepared by PW4 Dr. B. P. Jain and Dr. Sunita Jain and the age report Ex. P/5 deals with the clinical determination of age as well as determination of age by radiological examination.