1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Nazar Singh S/o Shri Dilor Singh vs. State of Rajasthan S.B. CRIMINAL APPEAL NO. 47/1988 Against the judgment & order dt. 15.01.1988 passed by Additional Sessions Judge No.2, Hanumangarh in Sessions Case No. 33/1986. Date of Order : 15 th April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr.DS Godara for Mr. M.D. Purohit, for the appellant. Mr. A.R. Nikub, Public Prosecutor. BY THE COURT: Appellant is convicted for the offences of Section 457 and 325 IPC respectively sentenced to two and half years R.I. with fine of Rs. 5000/-, in default to undergo two months R.I and 2 years R.I. With fine of Rs. 500/-, in default of payment of fine, to undergo two months simple imprisonment. Challenged is his conviction and sentence. Brief relevant facts as per prosecution are that on 20.02.86 at 5:30 PM, Smt. Bhagwanti, 65 years orally lodged report at Police station Suratgarh that last night at about 11 PM she while sleeping in her house heard a sound, woke up then out of Kotha came Nazar Singh and pushing her ran away. Smt. Bhagwanti also informed that soon after running away of Nazar Singh, she searching her kotha found that Rs. 200- 2 300 were not – she shouting told this to neighbours Ram Pyari and also Anjan Singh, Hukum Singh, Chotha Ram etc who told that in the morning the panchayat shall be held. But in the panchayat Najar Singh did not turn up so report is lodged. Registering FIR No. 443/86 for the offences of Section 457, 380 IPC, Smt. Bhagwanti was sent for medical examination. It appears that on February, 25th, the complainant lodged report Ex.P/5 before the Superintendent of Police in which she alleged that Nazar Singh who has hiding in bathroom came all of a sudden and forcibly getting hold and pushing her and made her fall down resulting in loss of two teeth and she she cried, by forcibly shutting her mouth, raped her and threatening her to kill if told to any and taking Rs. 2300/- from the attache ran away. Also alleged that ASI not writing so, simply registered a case of theft. In course of investigation and on information and at his instance recovering a underwear from below head of his cot and after usual investigation, chargesheet submitted and case registered against the appellant for offences of Section 376, 458, 459, 392, 325 IPC. Appellant claimed trial. Of the prosecution witnesses, examined Mst. Bhagwanti PW/6 is complainant. PW/1, PW/2, Pw/3, PW/4, PW/5 declared hostile by prosecution. PW/7 is medical officer and PW/8 S.I. has investigated the matter. On examination appellant stated that he was a workman of Pusa Ram who instead of Bhagwanti, obtained land allotted/entered in his name so, he is falsely implicated. Learned Judge convicting the appellant for the offences of Section 457, 325 IPC acquitted him of other charges. 3 Learned counsel for the appellant argued that (i) no witness named in FIR or any other one support prosecution (ii) Smt. Bhagwanti PW/6 on every allegation stating contrary at different stages – even alleged for offence of Section 376 IPC (iii)complainant PW/6 deposed falsely on several points so his testimony on any point cannot be believed – atleast require some corroboration (iv) injuries all simple one and no such act or push so as to cause dislocation or extraction of teeth. Reading statement of Smt. Bhagwanti PW/6 learned Advocate invited attention on factual aspects and contradictions, omissions etc. Learned Public Prosecutor contended that appellant appellant given benefit of every possible doubt, as is narrated in judgment for other offences and proved is that appellant concealing and entering residential house in the night voluntarily caused grievous hurt. Examining the evidence it appears that named persons in FIR who allegedly reached there soon on shouting of complainant and to who she narrated the incident has not supported the prosecution. However, unless no specific reason appear for non-supporting makes no difference. Only thing to be examined is whether evidence of complainant is reliable and believable enough to have safe conclusion. If not believed on certain aspect or to be exaggerated one even then conclusion for remainder or purport can be. Here as per evidence of Medical Officer PW/7 and injury report Ex.P/5 is found that one canine tooth and right central incission tooth were missing and tooth socket and swelling 4 present. Seven minor abrasions and bruises were at right orbital area of face below left eye, tip, on nose, chin, right neck and inner middle lower lip. So, fact of causing injury is corroborated by the injury. FIR lodged within a day do also contain it. As per testimony of complainant Ms. Bhagwanti PW/6 who is 65 years, so in her deposition, after a year, mentioning of date of the incident as 18th instead of 19th becomes immaterial. Thus, it stands proved that appellant in nigh at 10:30 PM caused injury to her. Injuries as above include is missing of two teeth with swelling around. No wound or worth injury was on or around lips. No article or weapon was used. Injured 65 years. Given these facts hardly can be held intention or knowledge of causing of grievous injury but voluntarily causing hurt stands proved. Appellant committed act of lurking house trespass in night to voluntarily cause hurt to complainant and this act of appellant is punishable under Section 457 IPC and Section 323 IPC to the extent of five years. Coming to sentence, the incident is of year 1985 and it appears that appellant arrested in last week of February, 1986 remained in custody for more than three months so in the opinion of the Court, sentence of already undergone shall meet the ends of justice. Accordingly, the appeal is decided. Accepting the appeal partly and upholding the conviction of appellant Nazar Singh S/o Shri Dilor for the offence of Section 457 IPC the conviction for offence of Section 325 IPC is altered to that of Section 323 5 IPC and for the offences of Sections 457 and 323 IPC, the appellant is sentenced to the period already undergone. (C.M. TOTLA), J.