1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Sunil Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1100/2005. Under Section 374(2) of the Code of Criminal Procedure. DATE OF ORDER: 22nd January, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. L.S. Tomar for the appellant. Mr. S.N. Gupta PP for the State. BY THE COURT: REPORTABLE This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed against the judgment and order dated 20th September, 2005 passed by the learned Special Judge, Mahila Atrocities & Dowry Cases, Jaipur city, Jaipur in Sessions case No.37/2005 by which the accused appellant was convicted and sentenced as under: U/s 363 IPC : 3 years rigorous imprisonment and fine of Rs.100/- U/s 366 IPC : 4 years rigorous imprisonment and fine of Rs.100/- u/s 376(2) r/w : 5 years rigorous imprisonment and fine of 511 IPC Rs. 100/-; in default of payment of fine to further undergo three months simple imprisonment for each offence. All the sentences were ordered to run concurrently. The facts for the disposal of the present appeal in brief are that PW-5 Geeta submitted a written report Ex.P-6 in police station Kotputli district Jaipur with the allegation that on 15.2.2005 2 at about 3.00 p.m. while she along with her daughter aged 5 years went to the house of Rohitash Singh and while she was in the house her daughter came out of the house and was playing with the children, at that time accused came there and took away the girl with him in a field where she was laid on the Earth and while the accused was trying to commit rape with the girl, she cried. On hearing her cry, Hanuman and Mohan Singh reached there. On seeing them, the accused tried to escape himself but was caught at the spot. On the basis of report, FIR No.82/2005 under sections 363, 366, 354, 376(2) read with section 511 IPC was registered and investigation commenced. The girl was medically examined. The statement of witnesses were recorded. After completion of investigation, charge-sheet was filed. Ultimately, the matter came up for trial before the learned Special Judge, Mahila Atrocities & Dowry Cases, Jaipur. Charges under sections 363, 366, 354, 376 (2) r/w 511 IPC were framed by the trial court on 7.7.2005. The accused denied the charges and claimed trial. In all nine witnesses were produced by the prosecution to prove its case and several documents were tendered in evidence. After close of the prosecution evidence, statement of the accused under section 313 Cr.P.C. were recorded in which accused denied the allegation and stated that on account of election enmity with Rohitash, under his influence, a false FIR has been lodged by Smt. Geeta. The learned trial court after hearing final submissions convicted and sentenced the accused as stated here-in-above. Hence, this 3 appeal. I have heard learned counsel for the accused appellant as well as the learned public prosecutor and carefully perused the material available on record. In the instant case, it is to be seen as to whether Kumari Savita aged 5 years was taken away from the legal custody of her mother by the accused and whether the accused tried to commit rape with her. The learned trial court recorded its finding that since Kumari Savita was of only 5 years of age and was not able to understand questions and answers, hence she was not examined. In view of the evidence of the mother and the witnesses, namely; PW-1 Mohan Singh and PW-2 Hanuman, the prosecution was able to prove the allegation against the accused for attempting rape against Kumari Savita. The learned trial court further found that in the statements of PW-3 Dr. Prashant Kumar and PW-4 Dr. Vijaya Sheravat, they have stated that on the private parts of the girl Kumari Savita there was tenderness and redness and that was suggestive of attempting rape on her. The learned trial court in view of the above evidence convicted and sentenced the accused. The contention of the learned counsel for the accused appellant is that the accused is in jail since 15.2.2005, therefore, his matter requires consideration and punishment of five years as awarded by the trial court is harsh and he should be left by the court considering the period of sentence already undergone by 4 him as sufficient in the present facts and circumstances of the case. It is also contended that on merits, since Kumari Savita was not examined, therefore, the main evidence in this case is missing. It is also contended that the accused has been falsely implicated in the case. The learned public prosecutor contends that in view of the medical evidence and in view of oral evidence, the prosecution has been able to prove the allegation of attempting rape against the accused, therefore, the sentence which has been awarded in the facts and circumstances of the case is reasonable and proper and the appeal of the accused is liable to be dismissed. I have considered the submissions made before me and considered the material available on record. In the instant case, the accused was caught at the spot. FIR was lodged promptly in the police station. PW-1 Mohan Singh has stated that he along with Hanuman reached at the spot on hearing the cry made by the child where they found that the underwear of the child was removed and the accused was trying to commit rape. PW-1 Mohan Singh and PW-2 Hanuman both have stated that there were teeth bites on the cheeks of the girl. PW-3 is Dr. Prashant Kumar. He has stated that he also found injury on cheeks of the girl which were caused by teeth. It was also found that there was tenderness and redness on the private parts of the girl. The hyman of the girl was found intact, therefore, possibility of rape was ruled out by the witness. PW-4 is Dr. Vijaya Sheravat. 5 She took vaginal swab of the child for FSL examination. She found some white discharge above the vagina. In the FSL report Ex.P-8, it was stated that semen could not be detected on pants of the accused. The evidence which has been produced in the case, in my opinion, sufficiently proves the allegation of committing rape by the accused against the young child. The defence of the accused that on account of the election enmity with Rohitash, he has been falsely implicated in this case has rightly been disbelieved by the trial court in the absence of the material on record. The learned trial court has taken into consideration the seriousness of the offence and awarded sentence of imprisonment. The maximum sentence awarded is 5 years rigorous imprisonment which in my opinion cannot be said to be excessive in view of the seriousness of the offence committed by the accused. The appeal is devoid of merit and is liable to be dismissed. In view of the foregoing discussion, this appeal stands dismissed. (S.P. PATHAK),J.