NISAR MOHAMMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal arises out of the judgment of the learned Additional Sessions judge, Banswara, dated 3 7.1971. I have heard argument and seen the record.

(2.) THE accused appellant Nisar Mohammed Patwari was alleged to have commuted rape upon the complainant Mst. Lakho on 20 -2 -70 in the evening ac about 6 p.m. when she was grinding maize in her house in village Kotda of police station Khusalgath husband was away, She raised a cry which attracted witnesses Teeta PW 2 and Rangji PW 3, who caught the accused red handed. Husband of Mst. Lakho returned to his house village Kotda two days after the occurrence. They both started for the pr lice station in order to lodge a report but the people of the village persuaded them not to make haste and promised to settle the matter in the village itself However, a complaint was afterwards lodged by Mst. Lakho on 7 -3 -1970 in the court of Munsif - Magistrate, Kushalgarh. Tae Magistrate asked the police to conduct an inquiry and the Deputy Superintendent of Police submitted hit report to the Magistrate that a prima facie case was made out against the appellant. The learned Magistrate after inquiry committed the accused for trial under Section 376 and 451 IPC.

(3.) IT is very difficult to support the approach of the learned Additional Sessions Judge in the matter. It was either a case of rape or no rape at all. It was nobody's case that the accused committed only indecent assault upon the prosecutrix. It is not the finding of the learned Additional Sessions Judge that no rape was proved but only an indecent assault could be there. The conviction under Section 354 IPC was thus made merely upon a conjecture. Unfortunately, the State has not come in appeal against the acquittal of the accused under 376 IPC and therefore, I do not consider it fit to remand the case for retrial after a lapse of four years of the incident.