STATE OF RAJASTHAN Vs. JEEYA

JUDGEMENT

(1.) THE respondent Jeeya was tried for offences under Sec. 376 and 323, I. P. C. , by the Assistant Sessions Judge, Balotra, who by his judgement dated December 15, 1973, acquitted him of the said offences.

(2.) BRIEFLY, the prosecution case is that on 4. 3. 1973 at about noon Mst. Teejan, aged about 28 years went in the company of Bhana Ram (P. W. 2), aged 12 years, Annu (P. W. 3), aged 13 years, Mst. Meeran (P. W. 4), aged 13 years, Dalla (P. W. 5), aged 15 years, in the field of Bhatis for collecting wood. Thereafter they went to the field of Ukka Kumhar. It is alleged that the accused Jeeya armed with a Kulhari came there and started hurling abuses as to why they were collecting wood. He broke the stick from Fogada tree and threatened the children, where by they ran away. Thereafter he caught hold of Mst. Teejan pulled her near him and inflicted a blow with the handle of Kulhari on her left thigh and thereafter took her in a pit and committed rape upon her and after commission of the rape he threatened her not to divulge anything to any one. Mst. Teejan went to the Dhani of Mukna and narrated the occurrence to Muk-na's wife Jethi (DW. 1) and Mukna's mother Sargati (P. W. 9 ). From there she came to her Dhani and narrated the occurrence to her mother-in-law Saran and aunt-in-law Jamna. Her husband was not at the house. The children came to the house and informed Gokla. Gokla visited the house of Mukna and as Teejan's husband Dungara was not at the house, so Gokla went to inform Dun-gara. Next morning Dungara came to the village. The matter was reported to the Mukhiyas of the village and according to Dungara, the father of the accused, namely, Tikam made efforts for compromise, but there-after Dungara, accompanied with his wife Mst Teejan visited the Police Station, Shingdri, on 6. 3. 197. 5 and lodged the report at 12. 30, p. m. On the report lodged by Mst. Teejan, case under Sec. 376, I P. C. , was registered by the S. H. O. Mohan Singh (PW 12 ). On production by Teejan, her Ghagra was seized vide memo Ex. P/2. The broken bangles were also produced by her, which were seized vide memo Ex. P/3. The S. H. O. visited the spot and conducted the spot investigation. At the instance of Mst. Teejan he prepared the site notes (Ex. P/4) and site plan (Ex. P/5 ). The accused was arrested on 10th March, 1973. As stains were found on the Dhoti, the Dhoti was packed and sealed. On the information and at the instance of the accused, the Kulhari was also recovered. The information memo is Ex. P/7 and the recovery memo is Ex. P/8. Both Mst Teejan and accused Jeeya, were medically examined. Two contusions on both the thighs were found on the person of Mst. Teejan. Her vaginal swab was also taken for chemical examination As stains were found on the pubic hair of Mst. Teejan, their cuttings were also taken for chemical examination. Ghaghra, cutting of pubic hair, and the vaginal swab of the prosecutrix and the Dhoti of the accused were sent for chemical examination. On examination it was found that human semen was detected on Ghaghra and Dhoti, but no human semen was detected on the two sides of vaginal swab and pubic hair. The quantity of human semen was considered to be too small to be forwarded to the Serologist for serological examination. Investigation was conducted from the witnesses. After completion of the investigation charge-sheet was presented against the accused, who was ultimately tried by the Assistant Sessions Judge, Balotra. Charges under Section 376 and 323, I. P. C. , were read over to the accused. The accused, however pleaded not guilty to the charges and claimed to be tried. In support of its case, the prosecution examined P. W. 1 Hem Singh, P. W. 2 Bhana Ram, P. W. 3 Mst. Annu, P. W. 4 Mst. Meeran, P. W. 5 Dalla, P. W. 6 Mst. Teejan, P. W. 7 Gokla, P. W. 8 Doongara, P. W. 9 Mst. Sargati, P. W. 10 Ramlal, P. W. 11, Sukhveer Singh Gehlot, P. W. 12 Mohan Singh and P. W. 13 Dr. Mohanlal Dhariwal. The statement of the accused was recorded under Sec. 313 Cr. P. C. , in which he denied the prosecution case and stated that his father had advanced a loan of Rs. 4,000/- to Bhagga, the father-in law of Mst. Teejan and 4 Maunds of Bajri was also given in loan, but when their return was demanded, he refused and foisted a false case against him. He further stated that Teejan's Deorani was given in Nata by her parents. His father and Kama did not allow making of any payment to the father-in-law of Teejan after holding a Panchayat, so this was also the cause of enmity. In defence the accused examined D. W. 1 Mst Jethi, D. W. 2 Ukka, D. W. 3 Adu and D. W. 4 Tikma. The learned Assistant Sessions Judge did not believe the evidence of Mst. Teejan, as Mst. Teejan's statement did not find corroboration from the testimony of Bhana, Dalla, Annu, Meeran and Mst. Sargati the mother of Mukna. However, corroboration was not available from the chemical examination of vaginal swab and pubic hair. The uncorroborated testimony of Mst. Teejan was not relied upon. Consequently, it was observed that the prosecution has not been able to establish the guilt of the accused beyond all reasonable doubt and as such he acquitted the respondent. Hence this appeal by the State.

(3.) WE are, therefore, of the opinion that so far as the offence under Sec. 376, I. P. C. , is concerned, it has not been brought home to the accused beyond all reasonable doubt. But as regards offence under Sec. 323, I. P. C. is concerned there is sufficient evidence on record, which establishes the offence of voluntary causing hurt beyond ail reasonable doubt. Mst. Teejan has categorically stated that the accused inflicted a blow with the handle of the Kulhari on her left thigh, Mst Annu (P. W. 3)has corroborated the above version of Mst. Teejan and stated that the accused inflicted a blow with the handle of Kulhari on the thigh of Mst. Teejan Dr. Mohanlal Dhariwal (P. W. 13) found two contusions one on the left thigh and the other on the right thigh. The dimension of the left thigh contusion was 4-1/2" x 2-1/2" and that of right thigh was l-1/2 x 1". Thus, from the above evidence, offence under Section 323, I. P. C. is amply proved against the accused. The learned Assistant Sessions Judge has not at all dealt with the question as to whether offence under Sec. 323, I. P. C. is at all made out against the accused or not and simply recorded the acquittal of the accused of the offence under Sec. 323, I. P. C. This view of the learned Assistant Sessions Judge, in our opinion, deserves to be reversed, as the view, is most unreasonable and perverse and such a view, in our opinion, does not at all arises from the evidence on record.