KISHORI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant has impugned the judgment and order dt. 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. 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.

(2.) 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.

(3.) 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.