1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT STATE OF RAJASTHAN VS. CHHOTU @ CHHOLTULAL SB Criminal Appeal No. 730 of 2002 under Section 378 (i) & (iii) Cr.P.C. against the order dated August 10, 2001 of Additional Sessions Judge, (Fast Track) Baran in Criminal Case No. 72 of 2001 (110 of 2000) by which the accused respondent was acquitted for the offence under section 376 IPC, but convicted under sections 457, 459, 323 and 325 IPC. Date of Order : April 16, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Piyush Kumar, Public Prosecutor for the appellant State of Rajasthan. Mr. A.K. Gupta for the accused respondents. BY THE COURT : State of Rajasthan has preferred this appeal against the order dated August 10, 2001 of Additional Sessions Judge, (Fast Track) Baran in Criminal Case No. 72 of 2001 (110 of 2000) by which the accused respondent was acquitted for the offence under section 376 IPC but convicted under sections 457, 459, 323 and 325 IPC. The accused respondent was not given the benefit of Probation of Offenders Act for offences under sections 457, 459. 323 and 325 2 IPC, but was sentenced as under : Section 323 IPC : Fine of Rs. 500/-. In default to undergo 15 days SI. Section 325 IPC : Two years SI and Fine of Rs. 5000/-. In default to undergo Five Months SI. Section 457 IPC : Two years SI and Fine of Rs. 1000/-. In default to undergo One Month SI. Section 459 IPC : Two years SI and Fine of Rs. 1000/-. In default to undergo one Month SI. All the sentences were ordered to run concurrently. 2. Brief facts of the case are that on May 31, 2000 at 6.00 a.m. complainant Nand Lal submitted a written report at Police Station Baran Sadar that yesterday night his mother-in-law Gangabai, was sleeping in her house alongwith child Meenakshi. At about 2-2.30 p.m. Chhotulal climbed over the walls of the house and jumped inside the house. He sat upon his mother inlaw and on her screaming put cloth in her mouth with stick and committed rape upon her against her wishes. On hearing screaming neighbour Birdilal reached there and on seeing him Chhotulal ran away. On 3 the above report Police Station Baran Sadar registered a case under sections 456, 323, and 376 IPC and started investigation. After investigation the police filed challan. Thereafter the case was committed to the Court of Sessions. The trial court framed charge against the accused respondent for the offence under sections 457, 376, 325 and 323 IPC. The accused denied the charges. The prosecution produced 11 witnesses and exhibited documents in support of its case. The accused was examined under section 313 Cr.P.C. After hearing both the parties the trial court convicted the accused as mentioned above and acquitted him for the offence under section 376 IPC by the judgment dated August 10, 2001. Against the aforesaid judgment the State preferred this appeal. 3. The learned Public Prosecutor contended that the trial court has not appreciated the prosecution witnesses in a proper manner. The trial court erred in 4 not believing the evidence of Gangabai, who was aged 60 years, who stated that the accused respondent entered by climbing over the wall and jumped inside the house and committed rape on her. The other witnesses has also supported the case of the prosecution. The learned Public Prosecutor made stress for convicting the accused under section 376 IPC. 4. On the other hand, Mr. Iliyas Ali, learned counsel appearing for the accused respondent contended that the trial court after due appreciation of evidence acquitted the accused respondent for the offence under section 376 IPC. He has drawn attention of this court that the prosecution has not produced medical evidence before the court and in absence of any medical evidence the accused respondent cannot be convicted under section 376 IPC. The trial court has considered each and every aspect of the case and nothing remains more to be 5 considered by this court in appeal. 5. I have heard the learned counsel for the parties and gone through the entire record. The judgment passed by the court below is perfectly according to law and there is no illegality or infirmity in the same. The trial court framed points for considerations and I am in agreement with the findings arrived at by the trial court on the points framed by it. The accused respondent has been rightly convicted for the offences under section 457, 459, 323 and 325 IPC, and by this time he must have complied with the judgment of the trial court and served out the sentence awarded by the trial court. In case the accused respondent has not served the sentence as ordered by the trial court, he will be taken in custody for serving out the remaining sentence. 6. For these reasons the appeal filed by the State of Rajasthan is dismissed after confirming the judgment 6 dated August 10, 2001 passed by the Additional Sessions Judge (Fast Track) Baran. (Mahesh Chandra Sharma) J. OPPareek/