SHAMSHER @ SUNIL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 8th Nov., 2005 in Sessions Case No. 70 of 2005 (13 of 2005) passed by the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu whereby the accused-appellant has been convicted and sentenced under section 376 Indian Penal Code for 10 years rigorous imprisonment and a fine of Rs. 1,000.00, in default of payment of fine to further undergo one month simple imprisonment and under section 450 Indian Penal Code for 7 years rigorous imprisonment and a fine of Rs. 100.00, in default of payment of fine to further undergo 15 days simple imprisonment.

(2.) Briefly stated the facts of the present case are that a written report Ex.Pl was lodged by PW1, the prosecutrix (name with held) in the police station Surajgarh district Jhunjhunu on 10.10.2004 at 6.10 P.M. wherein it was stated that on 09.10.2004 at about 10-11 P.M. in the night when the prosecutrix was sleeping in her house, some unknown person came and tried to press her neck. He also threatened her and took away a sum of Rs. 5,000.00 kept in a box and thereafter she was undressed and rape was committed with her though she tried to catch-hold of accused by his hairs but could not catch him. It is also alleged that on hearing her hue and cry, villages came there. Since she was undressed by the accused, villagers gave her clothes. The accused while leaving the place left one knob of radio. In the morning foot-prints were seen outside the house of the prosecutrix and the same were followed, they ended near the house of the accused Shamsher son of Sadhu Ram. On this report, FIR No. 174/2004 under sections 376 and 382 Indian Penal Code was registered and investigation commenced. During the course of investigation, Uahanga' of the prosecutrix was seized by the police vide Ex.P2. Formal FIR Ex.P3 was registered. A site plan Ex.P4 was made. The statement of the prosecutrix Ex.P5 was recorded by the Magistrate. The prosecutrix was medically examined by PW3 Dr. Smt. Sindhu Bhatta. The accused was arrested. Test identification parade was got done. After completion of investigation, charge-sheet was filed. Ultimately, the matter came up for trial before the learned Additional District & Sessions Judge (Fast Track) No. 2, Jhunjhunu. A charge under section 376,450 and 382 Indian Penal Code was framed against the accused appellant on 02.03.2005. In support of its case the prosecution examined as many as 16 witnesses and tendered several documents. After close of the evidence of the prosecution, the accused was examined under section 313 Crimial P.C. in which he stated that he was falsely implicated in the case. It is also stated that in fact he gave a sum of Rs. 10,000/ as a loan to the prosecutrix before 10 months of the alleged incident and on making several requests by him, the loan amount was not repaid by the prosecutrix and a false report of committing rape was lodged in the police station. No evidence in defence was produced. The learned trial court after hearing final submissions convicted and sentenced the accused as indicated here-in-above.

(3.) I have heard learned counsel for the accused-appellant as well as learned public prosecutor and carefully perused the material available on record.