SHYAMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) S. B. Criminal Appeal No. 593 of 1976 and S. B. Criminal Jail Appeal No. 707 of 1976, filed by Shyama arise out of one and the same judgment of the learned Additional Sessions Judge No. 2, Jodhpur, dated 29th July, 1976, by which the appellant was convicted undar sec. 376, I. P. C. and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/-, and in default of payment of fine to further suffer rigorous imprisonment for a period of three months.

(2.) THE incident that led to the arrest and prosecution of the appellant may be briefly stated as follows: Mst. Dhapuri wife of Ratna Bhil resident of Kalyanpura, District Barmer, was residing in Mohalla Barjion-ki-Bagichi, Masuria at Jodhpur, on 12th March, 1976. Her daughter Kamla, aged about 12 years, also lived with her in the same house. Shayama appellant and his wife Mst. Balki Bhil too were living in the vicinity of the house of Mst. Dhapuri. On 12th March, 1976, at about 4 p. m. the appellant's wife Mst. Balki called the minor girt of Dhapuri to her house. Shayama appellant was present in the house at that time. He caught hold of Mst. Kamla threw her on the ground and then committed rape on her after pressing her mouth with his hand. As a result of forcible sexual intercourse, the private parts of Mst. Kamla bled profusely. THE appellant's wife tied a towel to the private parts of the girl and left her at har maternal uncle Basti Ram's house. Mst. Kamla was crying due to pain in her private parts. Basti Ram's wife made necessary inquiries from the girl who related to the former that she had been ravished by the appellant. Kamla's mother had gone to the market. So Basti Ram's wife took the girl inside her house and waited for the arrival of her mother Dhapuri. After some time Kamal's mother returned from the market and came to know about the incident from Basti Ram's wife. To her also Kamla disclosed that she was subjected to rape by the appellant in a room of his house. Mst. Dhapuri, thereupon, rushed to lodge a report of the occurrence to the police at police station, Sardarpura. Ramesh Chandra, S. H. O. police station, Sardarpura, received the written report presented to him by Mst. Dhapuri on 12th March, 1976, at 5-30 p. m. He registered a case under sec. 376, I. P. C. on the basis of the said report and disputed Bahadur Singh, S. I. to make an investigation into the matter. Bahadur Singh arrested the appellant on 13th March, 1976. At the time of the arrest the appellants was wearing an underwear which was suspected to have stains of blood on them. Bahadur Singh took the underwear in his possession and sealed it properly in the presence of Motbirs. He sent the girl to the hospital for medical examination and took one blouse, one Ghaghra, one Kachha and a towel into his possession as there were stains of blood and semen and blood on them. THEse clothes were produced before him by Kamla's father. THE Doctor examined the private parts of the girl and found a laceration 1 cm. & 0. 2 cm. of the labia minora at about 3 O'clock position. THEre was a laceration of the vaginal wall at 5 O'clock position near the vaginal orifice which was bleeding. Hymen showed recent tears and its edges were bleeding. THE vaginal canal was one finger tight. On the basis of the above data the Doctor opined that there was evidence of recent penetration of some hard object which could be male penis also. THE Doctor advised X-ray examination of her elbow and wrist for determination of her age. THE X ray examination was conducted in his presence and under his supervision. THE result of the X-ray examination was as follows: (1) Epiphysis of the medial eplcondyle of humorous has partially fused; (2) Epiphysis of the head of radius has appeared but not fused; (3) Epiphysis of the elacranon process of ulna has fused; (4) Epiphysis of the distal end of radius and ulna have appeared but not fused On the basis of the clinical data and X-ray finding, the Medical Officer was of the opinion that the age of Kamla was about 14 to 15 years. On 13th March, 1976. the Doctor examined the appellant also with a view to ascertaining whether the latter was potent and capable of having sexual intercourse. Upon X-ray examination the Doctor found that the penis and scrotum of the appellant were well formed and there was nothing to show that he was not capable of having sexual intercourse. THE Doctor noticed one abrasion 0. 2 cm. x 0. 2 cm. on the frenulum of of the pents, also, which led him to opine that the appellant had recent sexual intercourse. THE Station House Officer sent the blouse, Ghaghra, Kachha and towel of the girl and the underwear of the appellant to the States Forensic Science Laboratory Jaipur, in a sealed condition for analysis and report. THE Director of the said laboratory, upon analysis, detected blood on blouse, Ghaghra, Kachha and towel. THE investigating agency collected other necessary evidence in the case against the appellant and upon completion of investigation filed a challan against the appellant in the court of the Additional Munsiff and Judicial Magistrate No 1, Jodhpur, under sec. 376, I. P. C. THE learned Magistrate committed the appellant to the court of the Sessions Judge, Jodhpur, for trial for offence of rape. THE Sessions Judge transferred the case to the court of the Additional Sessions Judge No. 2, Jodhpur, for trial according to law. THE learned Additional Sessions Judge tried the appellant for the offence of rape and found him guilty thereof and awarded the sentence of imprisonment and fine as stated above. Aggrieved by his conviction the appellant has preferred these two appeals, one from the jail and another through his counsel Mr. K. C. Gaur. As both the appeals filed by him are directed against one and the same judgment, they are disposed of together by one judgment.

(3.) THE evidence of Mst. Pepi P. W. 2 that Kamla disclosed to her soon-after the occurrence that she had been raped by the appellant in his house does not suffer from any infirmity and there is no reason why it should not be relied upon, especially when nothing has been elicited from cross examination, which may tend to destory the value of her evidence or to impeach her credit. It is proved by her evidence that the statement was made by Kamla soon after she came out of the house of the appellant having her Kachha, Ghaghra and the towel tied to her waist, stained with blood and her private parts badly injured. THEre is no material on the record to show or suggest that there was any possibility of the prosecutrix being tutored by any outside agency after taking place of the occurrence and the making of the statement by her to Mst. Pepi. Hence the prosecution has succeeded in proving that the former statement made by Kamla before her maternal aunt Pepi shortly after the rape corroborates the statement made by her in cross-examination by the Public Prosecutor in the trial court. Such a former statement made by Kamla soon after the event alleging that she was raped by the appellant in his house is admissible under sec 157 of the Evidence Act for the purpose of corroboration of her subsequent evidence in the court with regard to the same fact and it was rightly used by the trial court to corroborate Kamla's testimony in court. THEre is nothing on the record to show that Kamla made a false statement before Pepi PW. 2 out of some ulter for motive and later adhered to it or affirmed the same falsehood in the trial court.