1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Matu Singh Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.592/05 against the judgment dt.15.7.05 passed by Addl.Sessions Judge, Rajgarh (Churu) in Sessions Case No.36/2004. Date of Judgment: Aug.18, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.N.L.Joshi, for the appellant. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Addl.Sessions Judge, Rajgarh (Churu) dated 15.7.2005, whereby he convicted & sentenced the accused appellant Matu Singh as under: U/Sec.376 IPC : Seven years' R.I. & a fine of Rs.5000/- & in default, to further undergo two months' R.I. 2 U/Sec.450 IPC : Five years' R.I. & a fine of Rs.1000/-& in default, to further undergo 15 days' R.I. U/Sec.323 IPC : One month's R.I. All the substantive sentences were ordered to run concurrently. 2. The story of the prosecution is that on 14.9.04 at 9 PM, the prosecutrix Smt.Santosh lodged F.I.R. Ex.P.1 at Police Station, Tara Nagar that on the preceding day at 1 P.M., when she was sleeping at her field in the afternoon and her father in law had gone to the adjoining field for taking `kasiya' (agricultural equipment), accused Matu Singh, a drunkard and vagabond boy, who was hidden in the Bajra crop, came to her on seeing alone and forcibly took bite on her cheek. Upon this, she got awakened but the accused by putting his hand on her mouth, committed rape on her. Upon hearing her cries, her father in law came there and challenged the accused but the accused ran away and could not be caught, despite being followed. She narrated the story to her father in law, who brought her to village. Since her husband was out of village and came on the next day, she reported the matter to her husband and thereafter lodged F.I.R. The prosecutrix and the accused were medically examined. Upon registration of the case, after usual investigation, the accused appellant Matu Singh was challaned u/ss.376, 450 & 323 IPC. 3 The accused was chargesheeted accordingly, to which he pleaded not guilty. The prosecution examined ten witnesses. The statement of the accused was recorded u/s.313 CrPC. He led no evidence in his defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellant as above. 3. While assailing the judgment of the learned trial Judge, it has been vehemently contended by the learned counsel for the appellant that this is a case of consent and both the prosecutrix and the accused are of young age of 20 years and the incident was converted into a case of forcible rape on being seen by her father in law. He also pointed out that another eye witness of the incident viz; Jhinda Ram has been added later on, but he has not been examined by the prosecution. According to the learned counsel, the F.I.R. is also delayed by 32 hours and has been concocted after due deliberation. He further submits that while lodging the F.I.R., the husband of the prosecutrix viz; Kana Ram (PW 2) did not accompany her, whereas Chunni Ram (PW 1), who is father in law of prosecutrix and father of Kana Ram (PW 2) stated that Kana Ram accompanied her to the Police Station. In alternative, the learned counsel for the appellant has submitted that if the guilt is established, then the accused being of young age and the matter being of consent, he should be 4 sentenced to the period already undergone, which is about 4 years. 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 5. Upon re-appraisal of the evidence, it appears from the statement of prosecutrix Smt.Santosh (PW 9) that when she was sleeping at her field, accused came in the afternoon and on seeing her alone, pressed her breasts, took bite on her cheek and after putting his hand on her mouth, committed rape on her. Learned counsel for the appellant has drawn my attention towards the statement of the prosecutrix recorded u/s.164 CrPC, which is Ex.P.8, in which she has stated in portion marked `A' to `B' that the accused forcibly committed sexual intercourse with her for a considerable time and when she pushed him and cried, her father in law came there. This statement recorded u/s.164 CrPC cannot be said to be a case of consent. Had it been a case of consent, there could not have been a sign of biting on her cheek, which is apparent from the statement of the prosecutrix supported by the medical evidence Dr. Mohd.Halim Khan (PW 3), who examined the prosecutrix vide Ex.P.4 in which he has given the description of the mark of mouth bite on the left cheek of the size of 4cm x 3cm. Dr.Mohd.Halim Khan (PW 3) has said that he 5 examined the prosecutrix on 14.9.04 and this injury was caused within a period of 1 to 3 days. In addition to the statement of prosecutrix Smt.Santosh, Chunni Ram (PW 1), who is eye witness and father in law of the prosecutrix, has also supported the version of the prosecutrix and stated that he saw accused committing rape on her daughter in law Smt.Santosh. He tried to catch hold of him but he ran away. Ofcourse, Jhinda Ram, who came later on, has also been named as eye witness by Chunni Ram (PW 1) and prosecutrix Smt.Santosh (PW 9) but he has not been examined by the prosecution. The statement of the prosecutrix Smt.Santosh has also been supported by her husband Kana Ram (PW 2) to whom she narrated the story on his arrival on the next day at 11 AM on receiving a telephonic call about the incident on the preceding day from his father. 6. It is true that in the FSL Report, Ex.P.15, human semen was not detected in Exhibits No.1 to 6, which are vaginal swab, vaginal smear and clothes etc. but this evidence is of corroborative nature and is not conclusive. When the primary evidence is available on record, the negative corroborative evidence with regard to detection of human semen becomes immaterial. No young girl of the age of 20 years will tell lie in the normal course by exposing her chastity and character adversely, unless something has happened. The suggestions put 6 forth by the prosecution in the cross examination of the witnesses about the character of the prosecutrix and her ill relations with her in-law's house are immaterial in the light of the statement of the prosecutrix Smt.Santosh supported by her father in law Chunni Ram (PW 1) and her husband Kana Ram (PW 2). Under these circumstances, it cannot be said to be a case of consent but it is proved beyond reasonable doubt and rightly observed by the learned trial Judge that the accused Matu Singh committed trespass in the field of the prosecutrix Smt.Santosh, bit her cheek and committed rape on her. All these offences are punishable u/ss.376, 450 and 323 IPC. 7. The contention of the learned counsel for the appellant with regard to lodging of FIR by delay of 32 hours is also immaterial. As the incident is of 13.9.04 at 1 P.M. and F.I.R. has been lodged on 14.9.04 at 9 PM. The explanation of this has been given by the prosecutrix Smt.Santosh as well as Chunni Ram (PW 1) and Kana Ram (PW 2) in which it has been stated that after the incident, father in law of prosecutrix viz; Chunni Ram (PW 1) telephoned to his son Kana Ram (PW 2) at about 5 to 6 PM and Kana Ram has said that he received the same at 7 PM. This one hour's difference is immaterial about the phone being received. Then on the next day at 11 AM, he reached the village and talked with his wife. Thereafter, they went to the 7 Police Station, where the S.H.O. was not available and on his arrival, the F.I.R. was lodged at 9 PM. On this issue, a question was asked to Jinku Ram (PW 10), SHO, who has said that during the day hours, he was not available at the Police Station on 14.9.04. He has specifically said in the cross examination that he reached in the Police Station before 9 PM. Thus, the argument of delay in lodging the FIR is also devoid of force. 8. Lastly, learned counsel for the appellant has submitted that the accused is in jail for last four years. The accused and the prosecutrix were of young age of 20 years at the time of commission of offence, therefore, he should be sentenced to the period already undergone. Under sub-section (1) of Section 376 IPC, minimum punishment of seven years has been prescribed and it may extend to life or for a term, which may extend to ten years. However, under the proviso, if there are adequate and special reasons to be mentioned in the judgment, the Court may impose a sentence of imprisonment for a term of less than seven years. Here in the present case, learned counsel for the appellant has not been able to convince as to what are the adequate and special reasons for reducing the sentence from seven years to four years or little more. The adequate and special reasons are to be considered keeping in view the factum of age, physical condition, circumstances under which the rape 8 has been committed etc. Here in the present case, there are no convincing, adequate & special reasons to reduce the sentence. 9. Consequently, the appeal is dismissed and the judgment dt.15.7.2005 passed by Addl.Sessions Judge, Rajgarh (Churu) convicting the accused appellant Matu Singh for the offences u/ss.376, 450 & 323 IPC is confirmed. He is in jail, he will serve out the remaining part of the sentence awarded. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS