Rajasthan High Court - Jaipur
Motu Mal Alias Kishan Chand vs State Of Rajasthan on 11 May, 1987
Equivalent citations: 1987(2)WLN363
JUDGMENT Vinod Shanker Dave, J.
1. This appeal arises out of the judgment, passed by learned Additional Sessions Judge, No. 4, Jaipur City, Jaipur on 28-3-1987, whereby he convicted the accused appellant Motumal, for offence under Section 376 I.P.C. 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 where in she stated that she is student of 9th class and is aged 13 years. She stated that she is residing with her mother's sister (Maternal aunt), who used to illtreat 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 Rikshapuller that she should be taken to Mahilasadan. Rikshapuller 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 Rikshapuller, who offered her to place 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 under Section 354 I.P.C. was registered. During investigation case was altered to one under Section 376 I.P.C. After completing the investigation the accused was challaned for offence under Section 376 I.P.C. in the court of the learned Magistrate followed by committal to the court of learned Additional Sessions Judge, No. 4. The learned Judge recorded th statement of as many as 10 witnesses and found the case proved for offence under Section 376 I.P.C. 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 First Information Report above, there is no allegation of committing rape upon the prosecutrix there in. Obviously, the statement subsequently is an improvement over the First Information Report. 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, 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, PW 5 on 29-6-1985. Dr. Nirmala Purohit has appeared as PW 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 'Furd Suprdagi Chaddi', therefore, obviously by mistake the report which is on record of Magistrate's file left out to be marked and exhibited.
3. Be 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 claimed 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 I.P.C. and consequently accused deserves to be given benefit of doubt.
4. Regarding the otherwise correctness of the story, it is fully borne out from the statement of the prosecutrix as well as the statement of Pooran chand that this girl who had voluntarily left guardianship of her Mausi and remained with the accused during the night hours. The story first deposed by her and corroborated by Pooranchand is that accused orally asked her to offer herself for satisfying his lust, but on refusal from her he did nothing except placing his hands on her breast and this much story does not appear to be false, as this finds corroboration from the First Information Report also. This act of accused in placing his hands on her breast would bring the case within ambit of Section 354, I.P.C. for which offence the case was initially registered.
5. Consequently, I partly allow this appeal, set aside the conviction of the accused for offence under Section 376 I.P.C. and instead convict him for offence under sec 354 I.P.C. Regarding the question of sentence the accused is a young man of 31 years and he despite the fact he had an approximity and proximity to commit rape did not do so and did not even out rage the modesty after the girl resisted. He kept restrain on himself and returned home soon after her refusal. He, therefore, cannot be equated with those who have absolute criminal bent of mind and apparently should be kept away from the company of hardened criminal. I, therefore, think that ends of justice would meet if instead of sentencing him to imprisonment, I give him benefit of Section 4 of the Probation of Offenders Act.
6. Before parting with the judgment I would like to observe that the marking of the documents has not been correctly done in the case and it appears that learned trial judge has left the task of marking the documents on the staff rather than doing himself which has resulted either in duplicate marking or no marking of the documents at all. Most of the documents marking is erroneous. It is a sad commentary on the functioning of an officer of the rank of the Additional Sessions Judge in conduct of serious case as like that of rape.
7. Result is, this appeal is partly allowed. I set aside the conviction of accused for offence under Section 376 I.P.C. and instead convict him for the offence under Section 354 I.P.C. Accused is granted benefit of the provisions of Section 3 of the Probation of Offenders Act. He shall be released on bail on his executing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount for keeping peace and be of good behaviour for a period of 2 years from the date of execution of bond to the satisfaction of the trial court. In case, the accused violates the conditions of the bond he shall be taken into the custody to serve out the remaining sentence which sentence shall be of one year's rigorous imprisonment under Section 354 I.P.C. The accused shall be released forthwith on executing a bond, if not required in any other case.