Rajasthan High Court - Jodhpur
Babu Singh vs State on 4 December, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN0
AT JODHPUR
D.B. Criminal Appeal No. 1010 / 2016
Babu Singh S/o Sumer Singh Rajput, Aged About 24 Years,
Panota, Police Station Khinwada, Tehsil Desuri, Distt. Pali (raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. D.S. Gaur & Mr. B.P. Goswami.
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
JUDGMENT
[Per Hon‟ble Mr. G.K. Vyas, J.] Date of Judgment: 4th December, 2017 In this criminal appeal filed under Section 374 Cr.P.C., appellant- Babu Singh is challenging the validity of judgment dated 21st of October 2016 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Pali in Session Case No.138/2010, whereby the trial court convicted the accused appellant for offences under Sections 376, 342 & 447 of IPC and (2 of 17) [CRLA-1010/2016] Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and sentenced him as under:
376 of IPC: 10 years‟ simple imprisonment along with fine of Rs.10,000/-.
In default of payment of fine to further undergo three months‟ additional simple imprisonment.
342 of IPC: 1 year‟s simple imprisonment along with fine of Rs.1,000/-. In default of payment of fine to further undergo one month‟s simple imprisonment.
447 of IPC: 3 months‟ simple imprisonment along with fine of Rs.500/-. In default of payment of fine to further undergo fifteen days‟ additional simple imprisonment.
Briefly stated, the facts of the case are that on 23.08.2010, a written complaint (Ex.P/1) was submitted by complainant- Chhoga Ram (father of the prosecutrix Ms. "R") under his thumb impression, in which following allegations were levelled:
"lo s k eas Jheku Fkkuns kj lkgc iqfyl Fkkuk ¼f[kokMk½ ftyk ikyh egkns ; th] fuons u Nkxs kjke S/o jxkjke tkfr e?s koky fuoklh iukrs k vjV yPNkjke dk ;g gS fd eSa ejs s ifjokj ljgn iukrs k ojs k ij ifjokj lfgr jgrk gaw vkt fnukd a 23-8-10 dks lqcg djhc 9 cts eSa o ejs h /keZiRuh Jherh lk;jh nkus ks xqMk+ vkldj.k ejs s fjLrns kjh eas ekSr gkus s ls 12 fnu ij cSBus ds fy, x;s gq, Fks ihNs vjV ij ejs h iq=h Ms. "R" 18 lky dh vdy s h Fkh oDr djhc 1-30 fi;e ij eq>s :ikjke S/o yPNk th tkfr e?s koky tks ejs s dk yxrk gS Vy s hQkus ij crk;k fd rqe tYnh ls ?kj ij vkvks rc eSua s iN w k fd D;k gqvk rks crk;k fd ?kj ij tYnh vkvks (3 of 17) [CRLA-1010/2016] rc eaS o ejs h iRuh nkus ks cjs s ij vk;s rks ejs h iq=h Ms. "R" us crk;k fd eSa vius cjs s ds tko eas cdfj;k vk tkus ls cdfj;k fudkyus tko eas xbZ rks ckcq flga S/o lqejs flga tkfr jktirw fuoklh iukrs k ;kxrk ejs s tko eas vk;k ihNs ls idM+dj tcjLrh uhps iVd dj ejs s lkFk cykRdkj ¼[kkVs k dke½ fd;k eSa fpYykbZ rc :ikjke th o ekxa hyky S/o idkth tkV fuoklh csjk uokMs + Hkkx dj vk;s rc ckcqflga eq>s NkMs d + j Hkkx x;kA q s ejs h iq=h Ms. "R" o ejs s dkdk :ikjke us crkbAZ ckcqflga ;g ckr e> us ejs h iq=h Ms. "R" dks vdy s k tko eas n[s kdj cykRdkj fd;k gSA eSa ejs h iq=h Ms. "R" dks lkFk yd s j fjikVs Z djus vk;k gaw dkuuw h dk;oZ kgh djkoAs ?kVuk djhc 1 cts dh gSA vxa q'B fu"kkuh Nkxs kjke"
Upon perusal of complaint (Ex.P/1), it is revealed that at the time of submitting of aforesaid complaint (Ex.P/1), prosecutrix Ms. "R" also accompanied with her father at Police Station- Khinwada, District Pali and as per statement of prosecutrix the complaint was written by her.
The S.H.O., Police Station Khinwada, upon receipt of written complaint submitted by Chhoga Ram, registered a formal F.I.R. No.84/2010 on 23.08.2010 under Section 376 of IPC read with Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act (for short, hereinafter referred to as „Act‟) and commenced the investigation.
As per investigation officer, during investigation, site plan (Ex.P/2) was prepared and all the proceedings were recorded at the place of occurrence. The prosecutrix Ms. "R" was taken to Bangad Hospital, Pali for medical examination where the Medical Jurist of the hospital, after medical examination, gave report (Ex.P/3) on 24.08.2010 at 09.30 AM. The cloths of the prosecutrix (4 of 17) [CRLA-1010/2016] which she was wearing at the time of occurrence were taken in possession vide Ex.P/4 produced by complainant, Chhoga Ram on 24.08.2010. After registration of the FIR, statements (Ex.P/5) of the prosecutrix Ms. "R" were recorded u/s 164 Cr.P.C. by the Judicial Magistrate, First Class, Bali on 31.08.2009.
Accused appellant was arrested on 24.08.2010 at 06.00 PM vide Ex.P/7, the cloths of accused appellant- Babu Singh which he was wearing at the time of commission of offence, were taken in possession vide Ex.P/8 by the investigating officer. The x-ray of the prosecutrix was also conducted to ascertain her age and the report (Ex.P/15) was given by the Medical Board with regard to age of the prosecutrix On completion of investigation, the police filed charge sheeted against the accused appellant in the court of Judicial Magistrate, Desuri under Section 376, 447 & 342 IPC and Section 3 (2) (v) of the Act. The learned Magistrate committed the case to the court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Pali for trial.
After providing opportunity of hearing to the appellant, charges were framed by the trial court against the accused appellant, Babu Singh, under Sections 447, 342, 376 IPC r/w 3 (2) (v) of the Act, which he denied and claimed trial.
In support of prosecution case, statements of 16 witnesses were recorded in the trial including statements of complainant Chhoga Ram (PW.1) and prosecutrix Ms. "R" (PW.3). After recording the evidence of prosecution, the learned trial court proceeded to record the statements of accused appellant under (5 of 17) [CRLA-1010/2016] Section 313 Cr.P.C. in which allegations levelled by the prosecution witnesses were denied by the accused appellant and specifically said that only to squeeze money from the Government, this false case has been registered and no such offence was committed by him. In defence, though oral evidence was not produced but number of documents (12 in number) were exhibited including love letters written by the prosecutrix to the appellant and photograph, and statements of Ruparam and Mangilal Ex.D/2 and D/3 were also exhibited in defence.
The learned trial court after hearing final arguments of the parties convicted the accused appellant Babu Singh for offence under Sections 447, 342 and 376 of IPC & Section 3 (2) (v) of the Act and passed sentence mentioned above, vide judgment dated 21.10.2016 passed in Session Case No.138/2010. In this appeal, the said judgment is under challenge.
Learned counsel for the appellant vehemently argued that a grave error has been committed by the trial court in convicting the accused appellant for such serious offence because there is no iota of evidence for commission of alleged crime by the accused appellant, more so, as per evidence produced by the appellant, it is a clear case of love affairs between the girl and the appellant. However, only to give it colour of rape with ulterior motive, the FIR was filed but all allegations levelled by the prosecutrix have not been corroborated or supported by medical evidence, therefore, it can be said that the trial court has committed error so as to convict the accused appellant for alleged offence of rape.
Learned counsel for the appellant further submitted that (6 of 17) [CRLA-1010/2016] neither the victim (PW.3- Ms. "R") nor complainant PW.1- Chhoga Ram or the mother of the prosecutrix viz. PW.2- Sayri Devi, stated on oath that they are by caste "Meghwal". Thus the trial court has seriously erred in accepting the prosecution case that offence was committed by the accused appellant with a girl of SC community, which is possible under Section 3 (2) 9v) of the Act.
While inviting our attention towards the statements of PW.4- Chhogaram, PW.5- Ruparam and PW.6- Mangilal, it is submitted that none of the witness stated on oath that victim belongs to SC community and the offence of rape has been committed upon her to malign image of girl of Sc category. Thus the finding of learned trial court so as to convict the accused appellant for offence under Section 3 (2) (v) of the Act is not sustainable in law.
Learned counsel for the appellant vehemently argued that in this case investigation was conducted by Deputy Superintendent of Police, Pali, but the said witness has not been produced in evidence by the prosecution, however, the S.H.O., Police Station- Khinwada, nowhere said that victim belongs to SC community as defined under the SC/ST Act. According to learned counsel for the accused appellant, in absence of any reliable evidence on oath it cannot be presumed that offence under Section 3 (2) (v) of the SC/AT Act is made out against the accused appellant. Further contention of the learned counsel for the appellant is that no documentary evidence was produced to prove the cast of the victim, therefore, no question was put to accused appellant while examining him under Section 313 Cr.P.C. Thus, it is a case in which false case was registered by police so as to indulge the (7 of 17) [CRLA-1010/2016] appellant with the alleged crime of rape with a girl of SC community.
Learned counsel for the appellant submitted that finding for trespass by the appellant upon the land of complainant with intention to annoy or intimidate the owner of the property is totally baseless because no such evidence has come on record, therefore, there is no question to hold the accused appellant guilty for offence under Sections 447 and 342 of IPC. According to learned counsel for the appellant in paragraphs 43 and 44 of the judgment, the learned trial court gave finding that accused appellant is guilty for offence u/s 376 of IPC, but by going through such finding in those paragraphs, it does not transpire that the trial court has appreciated the evidence in correct perspective, the effect of contradictory evidence of prosecutrix and medical evidence in which fact of rape has not been proved, has not been considered properly by the trial court, therefore, the finding of guilt recorded against the accused appellant for offence u/s 376 IPC is liable to be quashed.
It is further submitted that doctor PW.15- Dr. S.K. Bhandari, who examined the victim has categorically stated on oath that no rape has been committed with her, nor any force was used against the victim to commit rape. Thus even if the fact of sexual inter- course is admitted for instance, then too, it is clear that it is a case of consensual relation. The prosecution has thus utterly failed to establish the allegation of rape upon the victim. In the medical evidence, no injuries on the private part of internal organ were detected, nor it has come out that rape was committed with the (8 of 17) [CRLA-1010/2016] prosecutrix. Thus, the entire story of the prosecution for commission of rape is false and concocted one, and the finding of guilt arrived at by the trial court for offence under Section 376 IPC which is not even corroborated by medical evidence, is not sustainable in law.
Learned counsel for the accused appellant further submitted that victim in her statements stated that accused appellant caught hold of her, on which she fell down in the field, and the accused committed rape with her, but this fact is not corroborated by independent medical evidence available on record because no mark of external injury on the back of other part of the body of prosecutrix were found. Probably, the instant case has been filed by the prosecutrix under the pressure of her family members, which is evident from the fact that in defence number of love letters which were written by prosecutrix were placed on record, for which although prosecutrix refused to accept the said fact, but this court has ample power to examine the hand-writing while comparing the signatures of the prosecutrix with other documents. The crux of the argument of learned counsel for the appellant is that whole prosecution story is based upon concocted and facts because medical evidence did not support and corroborate the prosecution case for commission of rape. There is no evidence to prove that prosecutrix belongs to SC community. The FSL report is also not record, therefore, it is submitted that the finding of learned trial court based upon oral and documentary evidence suffers from patent illegality inasmuch as the evidence has not been considered properly by the trial court so as to hold accused (9 of 17) [CRLA-1010/2016] appellant guilty. In absence of any corroborative more specifically medical evidence, how it can be presumed that rape was committed by the appellant with the victim, who belongs to SC community.
Learned counsel for the appellant submitted that it is a case in which judgment impugned deserves to be quashed because the prosecution has completely failed to prove its case beyond reasonable doubt.
Per contra, learned Public Prosecutor vehemently argued that at the time of registration of the FIR, it was specifically disclosed by the complainant that he is by caste Meghwal, which comes under SC category. It is also argued that as per verdict of Hon‟ble Apex Court, statement of the prosecutrix is relevant so as to ascertain correctness of fact. In this case, at the time of registration of the FIR, the prosecutrix was very much present at police station. Thereafter, her statements were recorded under Section 164 of Cr.P.C. in which specific allegation was levelled by her against the accused appellant. It is true that in medical reports there is opinion of the doctor that there is no evidence for committing inter-course, but at the same time, it is required to be considered that a girl of 18 years will make false allegation because her own prestige become subject-matter, therefore, argument of the learned counsel for the appellant that prosecution has failed to prove its case beyond reasonable doubt, does not arise. With regard to love letters, which were exhibited in defence, it is submitted that the prosecutrix has completely denied to have written these letters. Therefore, how it can be presumed that (10 of 17) [CRLA-1010/2016] these letters which were exhibited in defence, are genuine or can be treated to be evidence to ascertain the fact of consent. If accused appellant relied upon those document, then, it was his duty to file application for sending those documents to handwriting expert so as to ascertain correctness of the fact for writing these letters by the prosecutrix, but it has not been done, therefore, the trial court disbelieved the allegation of writing love letters by the prosecutrix to the accused appellant.
While inviting our attention towards photographs (Ex.D/1), it is submitted that it is a fabricated document and the same has been used by the accused appellant in defence. Therefore, he is liable to be prosecuted for filing such type of false document during trial. The learned Public Prosecutor vehemently submitted that finding arrived at by the trial court so as to hold accused appellant guilty for commission of offence under Sections 376, 342 and 447 of IPC & Section 3 (2) (v) of the SC/ST Act does not require any interference, therefore, the instant appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have minutely scanned the entire evidence of prosecution as well as of defence. Complainant- Chhoga Ram, father of the prosecutrix Ms. "R" submitted a hand-written report before the S.H.O., Police Station Khinwada, in which specific allegation was levelled by him that accused appellant- Babu Singh, forcibly committed rape with his daughter and said that witnesses, namely, Ruparam and Mangilal came there and on seeing them, accused appellant ran away from the place of occurrence. The said FIR was registered on (11 of 17) [CRLA-1010/2016] 23.10.2010 and statements of the prosecutrix were recorded on 31.10.2010, during this period, the prosecutrix was medically examined by the doctor and medical report (Ex.P/3) was given by the medical jurist. The x-ray was also conducted at Bangar Hospital, Pali to ascertain the age of prosecutrix and as per x-ray report (Ex.P/15), prosecutrix was 17-18 years, of age.
In the trial, statements of doctor PW.15- Dr. S. K. Bhandari of Bangad Hospital, Pali were recorded, in which the witness deposed on oath that upon medical examination of prosecutrix no symptoms of inter-course were found, therefore, the samples were sent to the FSL for further investigation. The statements of PW.15- Dr. S.K. Bhandari, reads as under:
"eSa fnukd a 23-08-10 vkSj 24-08-10 dks ckxa M+ vLirky ikyh eas efs Mdy T;fw j'B ds in ij dk;jZ r FkkA ml jkt s eSua s iqfyl rgjhj ij eSua s j[s kk iq=h Nkxs kjke dk mez tkp a grs q ijh{k.k fd;kA mez ckcr rhu ,Dljs djok;s x;s Fks tks ,Dljs uEcj 1- nkus kas dkgs uh] 2- nkus kas dykbZ 3- dej dk ,Dljs djok;k x;k rFkk jfs M;ky s kftLV dh vuqifLFkfr eas eSa tks jk; nh oks , ls ch gSA ftl jk; ds rgr ik;k x;k fd j[s kk 17 ls 18 lky dh mez eas gS bleas MkW Mh-ds lkjMk] MkW- dSyk"k ifjgkj ,oa eSa Lo;a ckMs Z ds eEs cjkas }kjk fd;k x;k FkkA j[s kk dk ijh{k.k ckMs Z ds eEs cj }kjk fd;k x;k FkkA gM~Mh jkxs fo"k's kK MkW- dSyk"k ifjgkj ,oa ltuZ MkW- Mh-d-s lkjMk ,oa ejs s }kjk ijh{k.k djus ij ik;k fd j[s kk dh mez 17 ls 18 o'kZ rd dh FkhA j[s kk dh mez ckcr tkp a fjikVs Z inz "kZ ih&15 gS ftl ij , ls ch ejs ]s lh ls Mh] Mh-ds lkjMk] bZ ls ,Q dSyk"k ifjgkj ds gLrk{kj gSa ,ot a h ls ,p ge ckMs Z eEs cjkas dh jk; gSA j[s kk dks ijh{k.k grs q pUnu flga ] lxa hrk dkLa Vcs y ds }kjk i"s k fd;k x;k FkkA Mlh jkt s eSua s j[s kk dk mez ,oa leHkkxs ckcr ijh{k.k fd;k Fkk tks lxa hrk ,oa pUnu flga dkLa Vcs y f[kokMk ikyh dh mifLFkfr eas fd;k FkkA mleas yMs h MkWDVj }kjk nh x;h fjikVs Z dyec) gS ftldh fjikVs Z ds vk/kkj ij ik;k fd vko";d lEs iy] ,Q,l,y ds fy, Hkt s s x;s tks efgyk fpfdRld }kjk fy;s x;s tks 1] 2 vkSj 3 uEcj ds FkAs fjikVs Z ds vk/kkj ij crk;k x;k Fkk fd mlds lkFk dkbs Z tkjs tcjnLrh ugha gq;h (12 of 17) [CRLA-1010/2016] Fkh vkSj izkboZ Vs ikVZ ij dkbs Z pkVas s ugha ik;h x;h Fkh mldh mez 17 ls 18 o'kZ ds chp ekuh x;h Fkh ,oa vko";d lEs iy lEHkkxs gqvk ;k ugha vk;k gqvk mldks ,Q,l,y grs q Hkt s nh FkhA izn"kZ ih&3 ij , ls ch ds gLrk{kj j[s kk ds gS tks eSua s djok;s Fk]s lh ls Mh iqfyl dkLa Vcs y lxa hrk ds gLrk{kj gS] bZ ls ,Q ejs s gLrk{kj gS ,oa th ls ,p ejs h jk; efgyk fpfdRld ds ijh{k.k ds vk/kkj ij gAS ftjg }kjk vfHk;qDr ds vf/koDrk Jh "kkSrku flga ;g lgh gS fd inz "kZ ih&15 eas vkbZ ls ts fgLls eas vuqekfur mez dk fy[kk gqvk gSA ;g lgh gS fd inz "kZ ih&15 eas ,DtV mez ugha crk;h x;h gS vuqekfur mez gh crk;h d;h gSA ;g lgh gS fd izn"kZ ih&15 esa mez tks 17 ls 18 o'kZ crk;h gS oks ,Dljs n[s kdj crk;k gAS eSa jfs M;kys kfs tLV dk ,DliVZ ugha gAaw ;g lgh gS fd eSa ,Dljs IyVs n[s kdj mez ckcr viuh jk; ugha ns ldrk gaw D;kfas d mleas ejs h fl)gLrrk ugha gSA ,Dljs "kehe VDs uhf"k;u us dh FkAs tks ,Dljs ejs s lkeus fd;s FkAs ge vkWlhQhd"s ku dk ¶;t w u l¶s V ls n[s krs gSA vyx&2 mez dk vyx&2 ¶;t w u gkrs k gSA ykos j ,.M dk gyuk] ¶;t w u 17 ls 18 o'kZ dh mez es gkrs k gSA ;g ejs h jk; ds vuqlkj Qhej ds vij,.M dk gSM vkjS k yl s j vkSj xVs j VkWdUs Vj 17 ls 18 o'kZ dh mez eas gksrk gS rFkk ,dkes h;u dk ¶;t w u 17 ls 18 o'kZ dh mez eas gkrs k gSA ;g lgh gS fd eSua s ejs s ,DliVZ dh jk; ds vuqlkj QnZ izn"kZ ih&15 eas fy[kk gSA ;g lgh gS fd ,DliVZ us eq>s cky s dj fy[kok;h FkhA MkW- Mh- ds lkjMk vkSj dSyk"k ifjgkj nkus kas ckxa M+ vLirky eas dk;Zjr gSA inz "kZ ih&3 dh jk; Hkh yMs h MkWDVj us dh gSA ;g lgh gS fd inz "kZ ih&3 eas vkbZ ls ts Hkkx eas j[s kk ds ckgjh vkjS vkUrfjd Hkkx eas fdlh izdkj ds pkVs ds fu"kku ugha FkAs ;g lgh gS fd izn"kZ ih&3 eas ds ls ,y fgLLs eas mlds lkFk eas fudV Hkrw eas dkbs Z bUVjdkl s Z ugha gqvkA ;g lgh gS fd izn"kZ ih&3 ds vuqlkj j[s kk ds lkFk fdlh rjg dh dkbs Z tcjnLrh ugha gq;h Fkh vkjS dkbs Z cykRdkj ugha gqvk FkkA"
In view of above statement, it is obvious that allegation of prosecutrix as well as complainant for rape has not been corroborated by the medical evidence as also from statements of Dr. S.K. Bhandari, who was working as Medical Jurist at Bangad Hospital Pali. It is worthwhile to observe that in defence, number (13 of 17) [CRLA-1010/2016] of letters were submitted by the accused to show that prosecutrix was having love affairs with him. Those love letters were exhibited as Ex.D/2 to Ex.D/11, in the trial. In the cross-examination, a question was put to the prosecutrix Ms. "R" about those letters Ex.D/2 to Ex.D/11, but she refused to accept that those letters were written by her to the accused appellant. It is also stated by the prosecutrix that she is not having any love affair with appellant but a specific question was put to the prosecutrix with respect to allegation of inter-course made by her in the statements (Ex.P/15) recorded under Section 164 Cr.P.C., in which to reply the question of rape, following rely was given by the prosecutrix, which reads as under:
"---
;s lgh gS fd bZ,Dlih ih&5 es eSua s eq[; ijh{k.k eas crkbZ ckr **,d ckr eqga ij j[kk --- [kky s fn;k** ugha fy[kkbZ FkhA ;s lgh gS fd bZ,Dlih&5 es eSua s eq[; ijh{k.k dh ckr *** mlus viuk fyxa ----;kus h eas Mky fn;k** --- ugha fy[kkbZ gSA e>q s dos y idMk+ gks rks Hkh eSa mldks xyr dke dgrh gAaw "
Similarly, with respect of Ex.P/4, whereby the cloths of the prosecutrix were taken in possession from her father, Chhoga Ram, it is stated by the prosecutrix that although said documents bears her signatures but it is wrong to say that her clothes were given by her father to the investigating officer.
Upon assessment of medical evidence, so also, statements of the prosecutrix, it is abundantly clear that prosecution has failed to prove its case beyond reasonable doubt. Of course, in the examination-in-chief, allegations are levelled for committing rape by the prosecutrix but in the cross-examination, it is specifically (14 of 17) [CRLA-1010/2016] stated by her that no inter-course was committed by the accused appellant with her.
The prosecutrix PW.3- Ms. "R" categorically stated in the cross-examination that the written report (Ex.P/1) was written by her and the same was submitted under the thumb impression of her father. The following statement was made by prosecutrix, which reads as under:
"fjikV s Z bZ,Dlih&1 eSusa s gkFk ls fy[kkh FkhA eq>s fjikVZ fdlh us fy[kokbZ ugha FkhA fjikVs Z fy[kus ls igys eSus s esjs firkth dks ckr crkbZ FkhA ejs s firkth ekStnw gS blfy;s cMs+ gkus s ls eSus fjikVs Z b,Z Dlih&1 eas fuons u Nkxs kjke th dk fy[kk;k gSA ;s lgh gS fd bZ,Dlih&1 euaS s firkth ds dgs vuqlkj fy[kh gSA ;s lgh gS fd bZ,Dlih&1 fjikVs Z eSua s fy[kdj euaS s gLrk{kj ugha fd;s FkAs "
The letters Ex.D/2 to Ex.D/11 were not examined by the handwriting expert to ascertain the authorship, therefore, while exercising power under Section 73 of the Evidence Act, we have compared the hand-writing of prosecutrix available on Ex.P/1 (written report) with the letters (Ex.D/2 to Ex.D/11) produced by the accused appellant during trial in his defence. In our opinion, there is no doubt that letters exhibited by the accused appellant in his defence are in the hand-writing of the prosecutrix herself, therefore, even if the documents, letters Ex.D/2 to Ex.D/11 were not sent to the hand writing expert for examination, but upon comparison by us, we have no hesitation to hold that the letters Ex.D/2 to Ex.D/11 are in the handwriting of the prosecutrix.
Upon assessment of statements of the prosecutrix and her father- Chhoga Ram, coupled with medical evidence, we are of the opinion that prosecution has failed to prove the allegation of inter-
(15 of 17) [CRLA-1010/2016] course against the accused appellant, therefore, finding of conviction for offence under Section 376 IPC is not sustainable in law. However, at the same time, we cannot disbelieve the statements of prosecutrix PW.3-Ms. "R" and statements of witnesses PW.1- Chhoga Ram, PW.2- Satyri and PW.5- Rupa Ram and PW.6- Mangilal completely. It appears that some incident took place either with the consent of prosecutrix or forcibly by the accused appellant, but there is no evidence on record to prove the fact that rape was committed by the accused appellant with the prosecutrix. As per medical report neither any injury was found upon the body of prosecutrix nor any symptoms for inter-course was in existence, therefore, in absence of corroboration by medical evidence to prove the fact of inter-course, it cannot be presumed that finding of learned trial court so as to hold accused appellant guilty for commission of offence under Section 376 of IPC is made out.
So far as letters (Ex.D/2 to Ex.D/11) are concerned, we have already observed that these letters are in the hand-writing of prosecutrix herself, therefore, obviously it cannot be said that in this case, Section 3 (2) (v) of the SC/ST Act will apply because it is a case in which there is ample evidence to prove the fact that relationship of prosecutrix and accused appellant was cordial because they were having good relationship as friends. Thus the allegation of the prosecution for committing rape with girl of SC community with intention that she belongs to SC category, has not been proved. It appears that due to fear of parents, the prosecutrix levelled allegations in her statements (Ex.P/5) (16 of 17) [CRLA-1010/2016] recorded under Section 164 Cr.P.C. and denied in the statements during trial, because as per medical evidence those allegations are not proved, so also, the prosecutrix PW.3 categorically accepted in her cross-examination that no inter-course was committed by the accused appellant, but only he has touched her. Therefore, we are of the opinion that the finding of guilty recorded by the trial court for offence under Section 376 IPC and Section 3 (2) (v) of the SC/ST Act is not sustainable in law because it has not been proved by the prosecution, but at the same time, we are of the opinion that the prosecution has succeeded to prove the fact that accused appellant entered in the agricultural field of PW.1- Chhoga Ram and tried to outrage the modesty of PW.3 Mst. "R", which is punishable under Section 354 of IPC.
In view of above, we hold that finding of guilt recorded by the trial court against the accused appellant for offence u/s 376 IPC and Section 3 (2) (v) of the SC/ST Act, deserves to be quashed.
Consequently, the instant criminal appeal is partly allowed. The finding of conviction and sentence of accused appellant for offence under Section 376 IPC and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act, 1989, recorded by the trial court vide judgment dated 21st of October 2016 in Session Case No.138/2010, is hereby quashed and set aside, but the accused appellant is hereby held guilty for committing offence under Section 354 of IPC, further the conviction of the accused appellant for offences under Sections 342 & 447 is hereby maintained. The accused appellant remained in custody from 25.08.2010 to (17 of 17) [CRLA-1010/2016] 17.11.2011 during trial and from 21.10.2016 till today he is in confinement, therefore, the sentence for said offence is hereby reduced to the period already undergone. The accused appellant be set at free, if any not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(DR. VIRENDRA KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J. DJ/-