MOTUMAL KISHANCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal arises out of the judgment passed by learned Additional Sessions Judge, No. 4, Jaipur City, Jaipur on 28-3-87, whereby he convicted the accused appellant Motumal, for offence under Section 376 IPC and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to further undergo 3 months simple imprisonment:

(2.) Prosecution case is that a report was lodged at Police Station, Manak Chowk, Jaipur by one Kumari Urvashi Ratanpal wherein she stated that she is student of 9th class and is aged 13 years. She stated that she is residing with her mothers sister (Maternal Uncle), who used to ill-treat her and one day she was beaten badly. Having felt humiliated and annoyed, she left her guardianship voluntarily and boarded a bus for Jaipur and at that time she had Rs. 200/- with her. She got down from bus at Jaipur and told one Riksha puller that she should be taken to Mahilasadan. Riksha puller took her to Mahilasadan, but it was closed, so he brought her back to bus stand. She had no place to stay on. The petitioner was a friend of the earlier Riksha puller, who offered her to place to sleep. At about 1.30 A.M. it is alleged, this accused told her that he has an evil eye on her and he placed his hands on her breast. She said that she will shout, thereupon Motumal asked Pooranchand to get up and Pooranchand replied that he is being disturbed. In the morning she reported the matter to police and the only allegation was that Motumal teased her and wanted to commit sexual intercourse. On this report a case u/s. 354 IPC was registered. During investigation case was altered to one u/s. 376 IPC. After completing the investigation the accused was challaned for offence u/s 376 IPC in the court of the learned Magistrate followed by the committal to the Court of learned Additional Sessions Judge, No. 4. The learned Judge recorded, the statement of as many as 10 witnesses and found the case proved for offence under Section 376 IPC. He convicted and sentenced the accused as indicated above. Hence, this appeal the entire case is in very narrow ambit, namely, the statement of the prosecutrix and the medical evidence. I have reproduced the FIR above, there no allegation of committing rape upon the prosecutrix therein. Obviously, the statement subsequently is an improvement over the FIR. She has been confronted with her statement under Section 161 Cr. P.C. In that statement also she has not made any allegation about rape against the appellant. She was also examined under Section 164 Cr. P.C. on 2nd July, 1985, i.e., after about 4 days of the incident and at that time for the first time she came with the story of the rape. This girl was medically examined by Doctor Nirmala Purohit, P.W. 5 on 29-6-85. Dr. Nirmala Purohit has appeared as P.W. 5, she has stated in her statement that she examined Urvashi and prepared the report which is Ex. P. 3. (Ex. P. 3 unfortunately is a document on record which is Fard Supurdagi Chaddi therefore obviously by mistake the report which is on record of Magistrates file left out to be marked and exhibited.

(3.) Do that as it may, the Doctor has clearly opined that the age of the prosecutrix both, clinically as well as by ossification test, is between 15 to 17 years. She has opined that nothing is suggestive that she is a virgin. On the contrary, the Doctor has categorically stated that she was habituated to sexual intercourse and about rape she refused to give any opinion and submitted that it could be given only after receiving chemical and medical reports. It is strange that chemical report has not seen the light of the day till date. Obviously, there is no medical evidence on record suggestive of the fact that there was either rape or even attempt to commit rape. I am, therefore, of the opinion that on belated statement of the prosecutrix the accused cannot be held guilty of committing rape upon her, particularly when it is not corroborated by medical evidence. There are various reasons for not considering her to be of sterling worth for the purpose of accepting allegation about rape and few of them are that she has lied about her age, her virginity, her manner of stay and above all her conduct in hiding the truth from the police on the first two occasions. I therefore, have no hesitation in holding that prosecution case cannot be accepted at all for the offence under Section 376 IPC and consequently accused deserves to be given benefit of doubt.