RAGHUNATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In challenge is the judgment and order dt. 21.09.1989/25.09.1989 passed by the learned Sessions Judge, Tonk in Sessions Case No. 57/1988 convicting the appellant under Secs. 376 & 323 IPC and sentencing him to suffer 7 years' and 1 year's R.I. for the two offences and to pay a fine of Rs. 1,000/- each for the two convictions in default to undergo 6 months' R.I. each. I have heard Mr. Deepak Soni, learned counsel for the appellant as well as Mr. Javed Choudhary, learned Public Prosecutor for the State.

(2.) In the FIR lodged on 12.05.1988 at about 9.45 PM at police Station Toda Raisingh, District Tonk by the prosecutrix Shanti wife of Shankar it was alleged that while she had taken her goats to a well in a Jungle at Pawaliya alongwith her sister-in-law Sita, the appellant came there and held her hand and threatened to throw her in the well. According to the prosecutrix, the appellant then outraged her modesty and threatened her not to disclose the factum of sexual intercourse to anybody in her household. The prosecutrix, however, acknowledged the presence of her sister-in-law Sita at the time of incident and also that of her bother-in-law Balu Mogya immediately thereafter. The police, on the FIR, registered a case and in course of the investigation, seized the wearing apparels of the prosecutrix, got her medically examined and also collected sample of her vaginal swab for forensic examination. Charge sheet was laid against the appellant under Secs. 376 & 323 IPC and the appellant pleaded "not guilty" when confronted therewith at the trial.

(3.) The prosecution examined the victim (PW-1), her sister-in-law Sita (PW-2), her bother-in-law Balu (PW-3) and her husband Shankar (PW-4). The prosecutrix in her testimony generally abided by her statements made in the FIR. In cross-examination, she also disclosed the presence at the time of the incident of one Matho Guja apart from Sita and Balu. PW-2 Sita, though, in her deposition admitted the presence of her bother-in-law Balu (PW-3) at the place of the occurrence and some confrontation with the appellant and the prosecutrix, however, did not support the allegation of rape. Balu (PW-3) stated that the prosecutrix did not inform her anything about sexual intercourse by the appellant on her. The same is the version of the Shankar (PW-4), the husband of the prosecutrix.