KISHORE @ KISHORE SINGH Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been directed against the Judgment dated 10.8.94 passed by the learned Special Judge, SC & ST (Preventions of Atrocities) Act Cases, Jhunjhunu, whereby he convicted the appellant for the offences under section 363 Penal Code and under section 3(2)(V) of the SC & ST (Prevention of Atrocities) Act, 1989 (in short the Act) and sentenced him to Rigorous Imprisonment for 3 years and a fine of Rs. 500.00'and in default to further undergo S.I. for one month on the first count and to life imprisonment on the second count and directed that the substantive sentences shall run concurrently.

(2.) Succinctly stated, the relevant facts for the disposal of this appeal are that PW 6 Km. Maya, whose date of birth as per Scholar Register and Transfer Certificate Exb. P. 14 & P. 15 respectively, is 5th June, 1983, was a student of class VI in Govt. Middle School, Barvasi. In April, 1993 her annual examinations were going on. In the morning of 27.4.93, she left her house situated in a 'dhani' of village Barvasi for going to her school, where she reached around 3.30 a.m. and by that time the examination had already commenced. She, therefore, did not go to the Examination Hal and was loitering near the school. It is alleged that on that day around 9.30 a.m. appellant-Kishore Singh aged about 1.9 years kidnapped her, boarded in a bus and took her to the town of Nawalgarh without the consent of her guardian. It is the case of the prosecution that the appellant took the prosecutrix-Maya, to a cinema hall, where they visited two cinema shows on that day. Thereafter he took her to a that chet situated near Primary School village-Barvasi, where he committed rape upon her. On 28.4.93 the appellant again took her to the 'town of Nawalgarh, brought her back to the same thatchet and in the night where he again committed rape upon her. Next day morning he left Km. Maya, who came to her house, where she narrated her woeful tale to PW 2 Smt. Bagwani, PW 1 Smt. Gyarsi and others. It is the case of the prosecution that since Km. Maya's father-Boduram had gone to Hissar to earn his livelihood, Smt. Bhagwani and others had made a search for the prosecutrix but her whereabouts could not be ascertained. On 29.4.93, PW 7 Jabhar Mal the elder brother of Bodhuram alongwith the prosecutrix went to Police Station, Nawalgarh, where he submitted a written report Ex.P. 3, whereupon formal FIR Ex.P. 4 was drawn. PW 9 Dr. Renu Sharma medically examined Km. Maya but did not find any injury on her body and private parts. However for ascertaining her age, the said doctor advised for ossification test. PW 8 Dr. Satish Vyas, Radiologist conducted 'the ossification test and vide his report Ex.P. 8 opined that the age of Km. Maya was above 15 years but below 17 years. Sealed packets containing the skirt of the prosecutrix, which had stains and her vaginal swab were sent to the State F.S.L. for chemical examination and detection of spermatozoa but no report of the State F.S.L. was filed by the prosecution. After completion of the investigation, a challan was filed against the appellant in the court of learned Additional, Chief Judicial Magistrate, Nawalgarh, who in turn committed the case to the Sessions Judge cum-Special Judge SC & ST (Prevention of Atrocities) Act Cases Jhunjhunu.

(3.) The learned trial judge framed charge for the offences under section 363 Penal Code and under section 3(2)(V) of the Act for committing rape with the prosecutrix, who is a member of Scheduled Caste. The appellant denied the indictment and claimed trial. To prove its case the prosecution examined as many as 15 witnesses. The appellant denied all the circumstances appearing against him in the prosecution evidence and asserted that he has been falsely implicated.. However he did not adduce any evidence in his defence. The learned trial judge after scrutinising the evidence recorded in this case held that on the day of incident the age of the prosecutrix was below 16 years, that the appellant had kidnapped and committed rape with her though she was a consenting party but since she was below 16 years of age and a minor, her consent was meaningless. He further held that the prosecutrix was a member of Scheduled Caste. He therefore, by his impugned judgment dated 10.8.94 convicted the appellant and sentenced him in the manner indicated above. Hence this appeal.