KOJA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been pre ferred against the judgment dated 11-2-1994 passed by the learned Sessions Judge, Merta in Sessions Case No. 31/93, whereby he has con victed the appellant for the offence under Sections 376 and 341, I.P.C., and sentenced him to rigorous imprisonment for five years and a fine of Rs. 1000.00 in default to further undergo six months simple imprisonment on the first count and im prisonment for fifteen days and a fine of Rupees 250/- in default to further undergo five days simple imprisonment on the second count.

(2.) Briefly the prosecution case is that on 29-9 -92 at about 7.00 to 8.00 a.m. prosecutrix PW. 16 Smt. Shivrai aged 22 years was going from her house situated in Village Modi to her field carrying the meals for her husband. When she reached near the filed of Ganga Ram situated near the public way going from Village Modi to Bhadora, appellant Koja Ram aged about 21 years, who was going just ahead of the prosecutrix stopped and asked her as to where she was going? The prosecutrix did not respond. Thereupon the ap pellant caught hold of her right hand with the result that her 'Tagari; whereon breads, vegetable and 'Rabdi' in an earthen-ware pot were placed, fell down in the path way. It is alleged that the appellant dragged her up to a distance of about 45 paces (equivalent to about 90 ft.) inside the field of Ganga Ram, where 'Moong' and 'Bajra' crops were standing. It is the case of the prosecution that the appellant felled her down behind the Bajra plants, bitten on her cheeks and inserted his penis into her vagina and thus committed rape. The prosecutrix raised hue and cry, but the appellant did not stop and after committing rape fled away towards the eastern side. Thereafter the prosecutrix after coming out from Ganga Ram's field proceeded towards her house weeping. In the way, her brother-in-law (Dever) P.W. 5 Sita Ram aged 18 years, who was a student of VIIIth Class and was going to hi s field carrying water on a bicycle, met her. She narrated her woeful tale to him. It is further the case of the prosecution that the prosecutrix also narrated about the incident to her mother-in-law P.W. 8 Smt. Maina after coming to her house. At that time P.W. 6 Meharam, the father-in-law of the prosecutrix, had gone to Vil lage Shankhbas for getting his cycle repaired. Therefore, P.W. 8 Smt. Maina went to Village Shankhbas and informed about the incident to Mehram at about 10 a.m. on the same day. Mehram came to Village Modi and therefrom he went to Police Station, Bhanwanda, which is situated at a distance of 14 Kms. from the place of the incident. Mehram submitted a written report Ex. P 6 on the same day at 6 p.m. to P.W. 17 Ram Babu, S.H.O., whereupon formal F.I.R. Ex. P. 14 was drawn and a case under Sections 341, 354 and 376, I.P.C. was registered against the appellant. On 30-9-92, P.W. 17 Ram Babu reached the spot and after inspecting the site, prepared site-plan Ex. P. 9 and memo Ex. P. 10. He also seized and sealed vide seizure memo Ex. P. 11 the 'Lahanga' of the prosecutrix, which allegedly was stained with semen at six places. P.W. 2 Dr. J. P. Mirada examined the prosecutrix on 30-9-92 at 1. p.m. and found few linear scratches present on her left cheek and a scratch on the dorsal surface of her right index finger, 2" away from the tip. Smt. Shivrai complained of pain on the intro scapular and lumbar region on her back, but there was no sign of external injury. The doctor did not find any blood, seminal stains, foreign hairs or fibbers on her clothes, which were torn at some places. The doctor noticed that her pubic hair were not matted from semen, and no dried semenal stains were found on her genital and thighs. The doctor also did not notice recently effused or dried blood on her genital organs or in the neighbourhood. Nei ther bruises and lacerations on the external genitals were present, nor there was any redness, swelling or inflamation thereon. Her fourchette and posterior commisore were also not injured. The doctor obtained the vaginal swab from her vagina and sealed and sent the same to the Direc tor, State Forensic Science Laboratory, Jaipur on the same day vide forwarding letter Ex. P. 3. The doctor vide his report Ex. P. 2 opined that the act of sexual intercourse with her could not be denied. He, however, reserved his final report awaiting the chemical report of vaginal smear and swab. The appellant was arrested as late as on 8-3-93 vide arrest memo Ex. P. 1. He was medically examined by P.W. 18 Dr. S. O. Shukla, who opined that there was nothing to suggest that the appellant was not capable of committing sexual intercourse. After usual investigation the police submitted a challan against the appellant in the court of learned Additional Munsif and Judicial Magistrate, Nagaur, who committed the case to learned Sessions Judge.

(3.) The appellant was charged for the offence under Sections 341 and 376, I.P.C. The appellant denied the indictment and claimed trial. The pros ecution examined as many as ten witnesses. The appellant in his plea recorded under Section 313, Cr. P.C., admitted that he was arrested by the police and that he was subjected to medical ex amination, but categorically denied all the circumstances appearing against him in the prosecu tion evidence. He asserted that the prosecution witnesses were close relatives of the prosecutrix that long drawn litigation is pending between their families, that he is innocent and that due to old enmity a false case has been foisted against him. He however did not examine any witness in his defence. After trial, the learned Sessions Judge by his judgment dated 11-2-94 convicted and sentenced the appellant in the manner indicated above. Hence this appeal.