1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT STATE OF RAJ. vs. RAMDEV SB Criminal Appeal No.1321 of 2007 under Section 378 (i)(iii) Cr.P.C. against the judgment dated November 21, 2006 of Additional Sessions Judge, (Fast Track) No.2 Camp Srimadhopur Distt. Sikar in Sessions Case No. 9 of 2006 whereby the accused respondent was acquitted from the offence under sections 354 and 376read with section 511 IPC. Date of Order : May 15, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Peeyush Kumar, Public Prosecutor. Mr. Anoop Dhand for the complainant. Mr. C.L.Saini, for the accused respondent. BY THE COURT : The State of Rajasthan filed Criminal Leave to Appeal against the judgment dated November 21, 2006 of Additional Sessions Judge, (Fast Track) No.2 Camp Srimadhopur Distt. Sikar in Sessions Case No. 9 of 2006 whereby the accused respondent was acquitted from the offence under sections 354 and 376 read with section 511 IPC and this court vide order dated May 22, 2007 allowed the application and the leave to appeal was ordered to be treated as 2 appeal. Notice was issued to the accused respondent and he has put in appearance before this court through his advocate. Hence this appeal. It may be mentioned that Mangli and another filed revision petition before this Court and this Court vide order dated May 22, 2007 permitted the petitioners of that revision petition to withdraw the revision petition and further they have been permitted to assist the Public Prosecutor in the appeal preferred by the State of Rajasthan. 2. Brief facts of the case are that on Feb. 9, 2006 the complainant Pokarmal Saini submitted a report before the Incharge, Police Station Khandela that in the morning at about 6 a.m. his wife had gone to answer call of nature then Ramdev Saini, accused respondent went at her back and tried to commit rape on his wife. He torn her clothes and on her screaming he beaten her on the way. She received injuries on her person and on hearing her screams Gangu Mali and Jagdish rescued her. On the above report FIR No. 27 of 2006 was registered by the concerned police station and started investigation. After investigation the concerned police station filed challan before the concerned Magistrate 3 from where it was committed to the Court of Addl. Sessions Judge (Fast Track ) No.2 Camp Srimadhopur. The trial court framed charge under sections 341, 323, 354 and 376 read with section 511 IPC against the accused respondent. The accused denied the charge and claimed to be tried. The prosecution produced as many as 11 witnesses and exhibited 12 documents. The statement of the accused respondent under section 313 Cr.P.c. was recorded and he exhibited one document in defence. After hearing both the sides, the trial court vide judgment dated November 21, 2006 found the accused respondent guilty for the offence under sections 341 and 323 IPC and granted the accused respondent the benefit of the provisions of Section 4 of the Probation of offenders Act and the accused respondent was directed to keep peace and be of good behaviour for a period of one year and further directed him to give personal bond in the amount of Rs. 5,000/- and one surety in the amount of Rs. 5,000/- to receive the sentence as and when directed by the court. The accused respondent was further acquitted of the charge under sections 376/511 and 354 IPC by giving him benefit of doubt. 4 3. The learned Public Prosecutor and the counsel for Mangli and Pokharmal argued that the court below without going through the entire record and evidence wrongly acquitted the accused respondent for offence under sections 376/511 and 354 IPC. The court below while passing the impugned order did not consider the statements of witnesses in correct perspective. PW.2 Mangli has categorically stated that she was subjected to rape by the accused respondent against her will and on her screaming Pokarmal and Gangu came and they beaten the accused respondent. Her evidence was corroborated by PW.3 Pokarmal and PW.8 Gangaram. Dr. Hariram Dangi who conducted the medical examiantion found injuries on the person of Pokarmal and Gangarama Ex. P.6 and Ex. P.7. He also found injuries on prosecutrix vide Ex. P.8. Thus the judgment of the court below is liable to be set aside and the accused respondent should be convicted for the offence under sections 376/ 511 and 354 IPC. The trial court has not properly appreciated the evidence came on record and produced by the prosecution. 4. The learned counsel for the accused respondent on the other hand opposed the 5 submissions of learned Public Prosecutor and stated that the court below after considering all the evidence, documents and record passed the order of acquittal of the accused respondent under sections 376/511 and 354 IPC. As per the evidence available on record he was convicted under sections 341 and 323 IPC but given the benefit of section 4 of the Probation of Offenders Act and for which the accused respondent has already submitted the bond and surety bond as directed by the trial court and the period of one year has already been expired. There is no illegality or infirmity in the order passed by the court below. 5. I have heard the learned counsel for the parties and gone through the entire record. 6. PW.1 Manphool was declared hostile as he has not supported the prosecution case. PW.5 Richpal Singh, constable proved the seizure memo Ex. P.5 of blouse of prosecutrix. PW.6 Khetaram was declared hostile. PW.7 Ramotar Singh, investigating officer proved the investigation done by him. PW.8 Gangaram proved the FIR Ex. P.3 where he has made his signatures C to D. He only stated about the beating given by him to 6 Ramdev and his mother. PW.9 Jagdish only stated that Ramdev was beating Mangli. PW.4 Dr. Hariram proved the injury reports. Ex. P.6, Ex. P.7 and Ex. P.8 The prosecution failed to prove case against the accused respondent for the offence under section 376/511 and 354 IPC beyond reasonable doubt and the accused respondent was given the benefit of doubt for these offences. The trial court rightly passed the judgment of acquittal for the offences under sections 376/511 and 354 IPC in favour of the accused respondnet. On account of injuries received by Pokar, Mangli and Gangaram the trial court convicted the accused respondent for the offence under sections 323 and 341 IPC. Most of the witnesses are relatives. The judgment passed by the court below is perfectly according to law and there is no illegality or infirmity in the same. I am in agreement with the findings recorded by the trial court. The court's attention was drawn on the judgment of the Hon'ble Supreme Court in Umrao Vs. State of Harayana & Ors. SC 2006 Vol.10 Page 136 in which their Lordships of the Supreme Court has observed in para 26 that “it is now well settled that if two views are possible, the appellate court should not interfere with the 7 judgment of acquittal passed by the court below.” 7. Thus the order passed by the court below does not call for any interference in the appeal filed by the State of Rajasthan and the appeal stands dismissed. (Mahesh Chandra Sharma) J. OPPareek/