KAJOD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) JUDGMENT :- This is an appeal against the judgment of conviction passed by Additional Sessions Judge. Rajasamand in Sessions case No. 12/80 by which he convicted the accused appellant under S. 376, IPC and sentenced him to 5 years rigorous imprisonment with a fine f Rs. /- and in default to undergo six months' rigorous imprisonment.

(2.) The case of the prosecution is that a report was lodged on 1-7-79 at 8 a.m. at police station Railmagra by Geeta aged about 8 years that about 12 or 13 days ago she was going to her field at about 7 a.m. from her house. Kajodia was in his field and was manuring. He told Geeta that some thieves were sitting in the way and that if she would go on the path way she would be killed by them. Therefore, she should take the lower path in order to reach the field. He thus misguided Geeta. Geeta taking the lower path way reached near a tree of 'Khakhra' where Kajodia asked her to lie down. She did not obey him and then he caught hold of Geeta and fell her on the ground. Then he over turned her 'ghaghra' and committed rape. She started bleeding profusely per vagina. Then the accused Kajodia gagged her mouth. Kesia and Vardia also came there. Kajod ran away seeing them. Geeta then came back to her house and told her mother that she was suffering from fever and, therefore, she had come back. She did not tell the incident to her mother. After two days she narrated it to her parents. Thereupon a village panchayat gathered before which a person named Ekling jotted down the report. General condition of Geeta was not well, therefore, she was taken to Rajnagar and shown to a doctor. Appellant's father came to Rajnagar and told that he would bear all the medical expenses and then Geeta was taken to Nathdwara hospital. She was kept there for two days and when she did not recover she was brought back to the village. On 29-6-79 constable Khuman Singh came on patrolling duty to the village. He came to know about this incident. He made an inquiry and then took Geeta to Dy. S. P. of Kankroli. The Dy. S. P. recorded the statement of Geeta and thereupon a case under S. 376, IPC was registered at police station Railmagra. The statement which was recorded by Dy S. P. is Ex. P/3 and it is dated 30-6-79. On its basis report Ex.P/5 was registered. During the investigation site plan Ex.P/7 was prepared. "Ghaghri" of Geeta was seized vide Ex.P/8, Dhoti of Kajod was recovered vide Ex.p/11. Geeta was medically examined and report Ex.P/12 was prepared. According to medical report, age of Geeta was between 9 to 10 years. During the investigation Geeta,Mangia, Smt. Anchhi, Kesuram and Vardia were examined under S. 164 Cr.P.C. After investigation, charge sheet was submitted before the judicial Magistrate Rajsamand who committed the case to the learned Sessions Judge. Udaipur. He transferred it to the learned Additional Sessions Judge, Rajsamand before whom accused appellant was tried. It may be stated that no enquiry was made about the age of accused appellant by any Court. Learned Additional Sessions Judge considering appellant not to be a "child" proceeded with trial. Accused appellant denied his indictment when he was charged for offence under S. 376, IPC on 14-3-80. Thereupon the prosecution examined as many as 8 witnesses on its behalf. Dr. B. P. Gupta was examined as court witness. Accused appellant was examined under S. 313, Cr.P.C. He stated that he was only 15 years of age. He produced Kishan as defence witness. Defence of accused appellant was that the parties were having inimical terms and, therefore, he had been falsely implicated. The learned Additional Sessions Judge after hearing both the parties convicted and sentenced the accused appellant as stated above.

(3.) I have heard the learned Counsel for the accused appellant as well as learned Public Prosecutor at length.