KALU KHAN Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant Kalu Khan has been convicted under section 511 read with section 376 I.P.C., by the Additional Sessions Judge No. 1, Jodhpur, by his judgment dated 21.3.74 and he has been sentenced to three years' rigorous imprisonment and a fine of Rs. 200.00. In default of payment of fine to further undergo one month's rigorous imprisonment.

(2.) The facts of the case may briefly be noticed. On 19-1-73 at about 11.45 a. m. one Kashiram gave a telephonic message to the police that one 'muslim' had committed rape with a 'Hindu' girl. Thereupon Hukum Singh, S. H. O., Police Station, Mahamandir (P. W. 12) visited the spot and Ramgopal (P. W. 1) gave the information, which was reduced into writing marked as Ex. P/1, it was stated by Ramgopal that at about 11 a.m. on that day when he was going to his mines situated at Kali Bari, Ganesh and Joga came running and when he saw in that direction he found that the accused was committing rape on Mst. Nainuri behind the heap of stones by the road side. It is said that accused after accomplishing the sexual intercourse got up, tied his trouser and on seeing the witnesses he tried to run away. While running he fell down and he bleeded from his nose. Thereafter he was overpowered. The accused gave out his name as Kalu Khan and the girl gave out her name as Nainuri. A case under section 3761. P,C. was registered. The accused and the girl both were medically examined. After investigation a challan was put up against the accused in the court of Additional Munsif No. 1. Jodhpur, who after committal proceedings committed the accused for trial to the Court of Session and ultimately the case was transferred to the Court of the Additional Sessions Judge No. 2 Jodhpur.

(3.) Charge under section 376 I.P.C. was read over and explained to the accused. The accused, however, pleaded not guilty to the charge and claimed to be tried. The prosecution examined in all twelve witnesses. The statement of Mst. Nainuri could not be recorded as it was found that she was insane. Regarding her insanity Dr. Vimal Kumar Rajdan was examined in the committing court, v,hose statement was taken on the file and. was marked as P. W. 5. The statement of the accused was recorded under section 342 Crimial P.C. in which he denied the prosecution case. The accused examined two witnesses in his defence. The learned Additional Sessions Judge held that offence under section 376 Penal Code was not proved by the prosecution beyond all reasonable doubt as Mst. Nainuri could not be examined and the medical evidence does not support the prosecution and no chemical report was produced in proof in respect of the stains on clothes. It was also observed by the learned Sessions Judge that with regard to the fact of actual penetration Mst. Nainuri could be the only witness, but her statement could not be recorded. With regard to the actual penetration there was no credible evidence, so the learned Additional Sessions Judge concluded that the prosecution has been able to prove beyond all reasonable doubt an offence of attempt to commit rape. Consequently he convicted and sentenced the accused as aforesaid, against which the present appeal has been filed by the accused. The learned counsel for the appellant has not challenged the conviction of the appellant, but has only submitted that the sentence passed by the learned Additional Sessions Judge is severe. The appellant has remained in custody from 19-4-73 to 5-10-73 for a period of more than 5 months. He urged that the sentence may be reduced to the period of his custody. The learned Public Prosecutor has also not contested the matter on the question of sentence. I have considered the question of sentence. The appellant has remained in custody for more than 51/2 months. In my opinion, the ends of justice would be served in case the sentence of the appellant is reduced to the period of his custody. There are no circumstances on the basis of which severe view in the matter of sentence may be taken. In the result, the appeal is partly allowed. While maintaining the conviction of the appellant, the sentence of the appellant is reduced to the period of his custody. Thus, the sentence stands set off. The appellant is already on bail, so he need not surrender. The bail bonds are discharged. Appeal partly allowed.