-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Sita Ram Vs. State of Rajasthan (1) S.B.CRIMINAL APPEAL NO.504/2006 Saku Singh Vs. State of Rajasthan (2) S.B.CRIMINAL REVISION PETITION NO.468/2006 against the judgment dt.3.5.2006 passed by the Spl.Judge, SC/ST(Prevention of Atrocities) Act Cases, Merta in Sessions Case No.13/05(25/04). Date of Judgment: May 06, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.G.R.Punia, for the appellant. Mr.L.R.Upadhyaya, Public Prosecutor. Mr.Ranjeet Joshi ) Mrs.Deepika Vyas ) for complainant. BY THE COURT : 1. These two Criminal Appeal and Criminal Revision are filed against the judgment of the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases cum Additional Sessions Judge, Merta, dt.3.5.2006, whereby -2- the learned trial Judge convicted the accused appellant Sita Ram under sections 366 & 376 IPC & sentenced him to seven years' R.I. & a fine of Rs.2000/- & in default, to further undergo three months' S.I. for the offence u/s.366 IPC and seven years' R.I. & a fine of Rs.3000/- & in default, to further undergo three months' S.I. for the offence u/s.376 IPC. Both the substantive sentences were ordered to run concurrently. Learned trial Judge however acquitted accused Ramniwas for the offences u/ss.363 & 366 IPC and accused Hema Ram u/s.376. Appeal against conviction has been filed by accused Sita Ram and Revision against acquittal of accused Ram Niwas & Hema Ram has been filed by one Saku Singh, who lodged the F.I.R., therefore, they are being disposed-of by this common judgment. 2. The story of the prosecution is that Saku Singh (PW 5) lodged the F.I.R. at the Police Station, Degana, on 30.3.2004 that when his younger brother's daughter prosecutrix Kiran Kanwar was going to bath room for making water on 24.3.2004 at night, accused Sita Ram caught hold of her arm and forcibly took her on motor cycle, which was driven by accused Ram Niwas. Accused -3- Sita Ram put his hand on the mouth of the prosecutrix and they went to village Ren, from where they went to Jaipur in a jeep and stayed for three days in a hotel. They forcibly committed rape with her. After investigation, the police filed challan against accused Sita Ram and later on, upon the application of the public prosecutor under Sec.319 CrPC, cognizance was also taken against accused Ram Niwas and Hema Ram. Charges were framed against the accused Sita Ram u/ss.366 & 376 IPC, against accused Ram Niwas u/ss.363 & 366 IPC & against accused Hema Ram u/s.376 IPC, to which they pleaded not guilty. The prosecution examined 13 witnesses. The statements of the accused u/s.313 CrPC were recorded. They produced 8 witnesses in their defence. After hearing the arguments, the learned trial Judge passed the order of conviction and acquittal as aforesaid. 3. It has been contended by the learned counsel for the appellant Sita Ram that the prosecutrix is major and she left with the appellant at her own. If at all, it is a case of rape, it is with the consent of the girl. According to the learned counsel, while acquitting two other co accused, learned trial Judge has discriminated -4- with the appellant Sita Ram while convicting him u/ss.366 & 376 IPC. So far as the age of the prosecutrix is concerned, Kiran Kanwar (PW 2) has stated in her statement that she is 15 years of age but from the medical evidence, her age is shown to be 16 years approximately in Ex.P.7, whereas the learned trial Judge has considered the age of the prosecutrix to be between 19 to 20 years and as per the School Certificate Ex.D.!2, date of birth of Mahendra Singh S/o Mohan Singh is 5.12.1987 and also as per the admission register Ex.D.11, the date of birth of Mahendra Singh recorded therein is the same, which has been proved by the Head Master of the School viz; Hapulal (DW 7). Mahendra Singh is the younger brother of prosecutrix. When the age of younger brother as per the School Certificate is more than 18 years, then naturally, the age of the prosecutrix cannot be less than 19 to 20 years and in this regard, the finding of the learned trial Judge requires no interference. 4. As regards committing rape and abduction, the statement of the prosecutrix was recorded u/s.164 CrPC, which is Ex.P.2 in which she has stated that the house of accused Sita Ram is in front of her house, who -5- took her on the night of 24.3.2004 on motor cycle, which was driven by accused Ram Niwas. First, they took her to village Ren and thereafter to Jaipur. There, they stayed in a hotel for three days and accused Sita Ram committed rape with her. The brother in law of accused Sita Ram viz; Hema Ram also came and committed rape. They threatened her and told that if she raised the cry, she will be sold. Thereafter they took her to village Bayana and kept her for more than two months and committed rape. There, she was arrested by the police. When she was examined in the court as PW 2 and was confronted with her police statement recorded u/s.161 CrPC, she has not stated anything about Hema Ram and Ram Niwas. She only stated about accused Sita Ram. Thus, there is a material contradiction with regard to abduction and rape said to have been committed by Hema Ram and Ram Niwas and they have been rightly acquitted by the learned trial Judge. 5. So far as accused appellant Sita Ram is concerned, the report of the incident was lodged after 6 days i.e. on 30.3.2004 in which the allegations against Sita Ram and Ram Niwas have been made vis-a-vis Govind Lal -6- Brahmin resident of village Ren, in whose jeep, they went to Merta but this Govind Lal has not been examined by the prosecution. 6. Thus, from the above evidence, it appears that the prosecution story is full of half truth & half lie. The prosecutrix is a major girl, who remained with the accused appellant Sita Ram for more than two to three months and did not make any cry or attempt to disclose the incident of abduction & rape and, therefore, her statement that she was forcibly raped and against her will, cannot be accepted, especially in the light of the statement of Dr.Deepak Sharma (PW 13), who examined the prosecutrix and stated that no injury was found on her private parts at the time of examination vide Ex.P.7. In the FSL Report also, which is Ex.P.13, the human semen was detected only on underwear (Ex.2) of accused, but the same was not detected on lehnga (Ex.1) of the prosecutrix. Vaginal slide and vaginal swab, Exs.3 and 4 respectively, were also consumed during examination. In view of this F.S.L.Report, while distinguishing the case of accused Sita Ram from the rest of the accused, the trial Judge has committed serious illegality in convicting the accused appellant -7- Sita Ram for the offences u/ss.366 & 376 IPC. 7. Consequently, this appeal is allowed. The conviction & sentence recorded against appellant Sita Ram by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases cum Addl.Sessions Judge, Merta vide his judgment dt.3.5.2006 is set aside and he is acquitted for the charges levelled against him. He be released forthwith, if not required in any other case. As a consequence, the revision petition filed by complainant Saku Singh against acquittal of Hema Ram and Ramniwas is also dismissed. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS