1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Pyara v. State of Rajasthan S.B. Criminal Appeal No.52/1989 u/s 374 (2) Cr.P.C. against the judgment dated 16.02.1989 passed by the Sessions Judge, Bhilwara, in Sessions Case No.147/1987. Date of Judgment : 24th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Suresh Kumbhat for Mr. G.Vaishnava for the appellant. Mr.JPS Choudhary, Public Prosecutor. BY THE COURT: This criminal appeal has been preferred against the judgment and order dated 16th of February, 1989 passed by the learned Sessions Judge, Bhilwara whereby the accused appellant Pyara, s/o Bheru has 2 been convicted in the offence under section 376/511 of the Indian Penal Code and sentenced to a rigorous imprisonment of two years with a fine of Rs.500/-. The accused appellant is alleged to have attempted to commit rape on Narayani, w/o Jagdish Lal Sen on 22nd of July 1987 at 04.00 PM in the forest of village Mandapiya, juxtaposed to the well of Kajor Jat. He was charged with the offence under section 376/511 of IPC by the Sessions Judge, Bhilwara, who denied the guilt and claimed trial. The prosecution examined only four witnesses in support of its case and after trial, the court convicted the accused appellant and sentenced him as aforesaid. Heard Mr Suresh Kumbhat , learned counsel appearing for the accused appellant , Mr.JPS Choudhary, Public Prosecutor for the State and perused the impugned judgment and prosecution evidence 3 available on record. While drawing my attention to the written report Ex.P/1, FIR Ex.P/3 and the statement of prosecutrix PW/1 Narayani, the learned counsel for the appellant has contended that from any stretch of imagination, the offence under section 376/511 of IPC is not proved, as none of the witnesses , including the prosecutrix, has stated on oath that any attempt to commit rape was made by the accused appellant. At the most, from the evidence of the prosecutrix, an offence under section 354 of IPC may be said to have been proved. The learned Public Prosecutor, Mr.JPS Choudhary acknowledged the submission of Mr.Kumbhat and has fairly conceded that the offence only under section 354 of IPC is proved from the evidence of prosecutrix. A bare perusal of the written report, Ex.P/1, given by the prosecutrix PW/1 Narayani in the police station reveals that the accused Pyara came to her and 4 asked as to where was she going ? She was under veil, which is a mark of respect to the elders and with the signal of hand indicated towards 'rajhka'. Thereupon the accused Payra Jat came and caught hold of her both the hands and made her to lie on the ground. It is alleged that the accused Pyara exhibited the fear of axe and threatened to kill, if she cried. However, she cried and the accused Pyara Jat attempted to close her mouth. On hearing the screams of prosecutrix Narayani, one Nanu Jat ran to the spot and alarmed him. Seeing Nanu Jat the accused appellant Pyara Jat ran away from the site of occurrence. The same story has been reproduced in FIR Ex.P/3 and the prosecutrix also has stated on oath the same facts before the court. The statement on oath given by the prosecutrix and the facts as narrated in FIR Ex.P/3, go to prove that the prosecutrix was only made to lie on the ground by the accused. No attempt to commit rape is found to 5 have been committed by the accused but from the facts as narrated in the FIR, and the statements given on oath, it is proved that the modesty of the prosecutrix, PW/1 Narayani, was outraged by the accused appellant. I agree with the argument advanced by the learned counsel for the appellant, which has been fairly acknowledged by the Public Prosecutor in a very healthy spirit . No other argument has been advanced by either of the parties before me. In view of the above , the criminal appeal filed by the accused appellant Pyara , s/o Bheru is partly allowed. The conviction of the accused appellant in the offence under section 376/ 511 of IPC and sentence awarded as aforesaid, are set aside and instead he is convicted in the offence under section 354 of IPC. The learned counsel for the appellant has submitted that the accused has been in custody for 6 about 14 days during trial and he may be sentenced to the period already undergone. In support of this argument he has cited a case of Shantaram Nilkantha Meshram v. State of Maharashtra [2002(1) Crimes 662]. Having perused the file it is found that the accused appellant was of the age of 32 years on the date of occurrence. The case is about 21 years old and this appeal has been pending since 02nd of March 1989 and has been listed for hearing for the first time today only. Keeping in view the fact that the case is very old and the accused appellant must have been of the age of 53 today, and in view of the facts and circumstances of the case, I feel inclined to take a lenient view and deem it proper to sentence him to the period already undergone. With the above modification, this Criminal appeal stands disposed of. (MAHESH BHAGWATI), J. l.george