[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1034/2005 KHEMA @ KHEMRAJ Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 27.10.2005 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.3, BUNDI IN SESSIONS CASE 52/2004. Date: 25/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. M.K. Jain for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 27.10.2005 passed by the Additional Sessions Judge (Fast Track) No.3, Bundi, whereby the accused-appellant has been convicted for the offence under Sections 376 and 323 IPC and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 10,000/-, in default of payment of fine to further undergo simple imprisonment for six months under Section 376 IPC and to undergo simple imprisonment for one month with a fine of Rs. 200/-, in default of payment of fine to further undergo simple imprisonment for seven days under Section 323 IPC. Both the sentences were ordered to run concurrently. [2] Briefly stated the facts of the case are that on 31.07.2000 complainant Smt. Gamla Bai lodged a written report Ex.P3 at Police Station Dei, District Bundi. On the basis of the above report, the police registered F.I.R. No. 327/2000 for the offence under Sections 376, 323 IPC and started investigation. After completion of the investigation, the police submitted charge-sheet against the accused-appellant for the offence under Section 376, 323 IPC. As the case was exclusively triable by the Court of Sessions, therefore, the Magistrate committed the case to the Court of Sessions Judge, Bundi, from where the same was transferred to the Court of Additional Sessions Judge (Fast Track) No.3, Bundi for trial. The trial Court framed charges against the accused-appellant for the offence under Sections 376, 323 IPC, who denied the charges and claimed trial. The prosecution, in support of its case, examined as many as 8 witnesses. After completing the prosecution evidence, the trial Court recorded the statements of the accused-appellant under Section 313 Cr.P.C., in which he denied the case of the prosecution and submitted that the complainant has lodged a false report against him with some ulterior motive. The Additional Sessions Judge (Fast Track) No.3, Bundi after hearing rival submissions of the respective parties, vide impugned judgment dated [3] 27.10.2005 convicted and sentenced the accused- appellant as indicated herein above. Aggrieved and dissatisfied with the impugned judgment dated 27.10.2005, the accused- appellant has preferred the instant criminal appeal on the ground that from the evidence adduced by the prosecution, no offence under Sections 376 and 323 IPC is made out against the accused-appellant. The prosecution has utterly failed to establish its case beyond reasonable doubt and, therefore, no conviction can be based upon such evidence. It is further contended that there are several infirmities and contradictions in the statements of the prosecution witnesses and, therefore, no reliance can be placed upon their testimony. It is also submitted that there is delay in lodging the FIR by the complainant as the incident alleged to have taken place on 29.07.2000 at 5.00 p.m., whereas the report Ex.P3 was lodged on 31.07.2000 at 04.30 p.m. at Police Station Dei, District Bundi without giving any satisfactory explanation for this delay. Much emphasize has been given by the learned counsel for the accused-appellant that the offence under Section 376 IPC, as alleged by the prosecution, is not made out against the accused- appellant as the trial Court failed to consider that there was no evidence of penetration and only on the statement of the prosecutrix, the accused- [4] appellant cannot be held guilty. In absence of any evidence of penetration, the offence of rape could not said to have been proved. It is further contended that the semen found on the 'Ghaghra' of the prosecutrix was obvious as the prosecutrix was married lady and only on this count alone, the accused-appellant cannot be held guilty for the offence under Section 376 IPC and the injuries alleged to have been sustained by the prosecutrix may be self inflicted. Learned counsel for the accused-appellant also submits that the statement of the prosecutrix PW2 Smt. Gamla Bai is not trustworthy as the same is not corroborated by the medical evidence. It is further submitted that the prosecutrix PW2 Smt. Gamla Bai is grownup lady and was 25 years of age at the time of the incident, whereas the accused- appellant was 21 years of age. In support of his submissions, learned counsel for the accused-appellant placed reliance on the judgment rendered by this Court in the case of Lal @ Lal Chand Vs. State of Rajasthan, reported in 2004 WLC(Raj.) UC 342, wherein this Court has examined the aspect that semen was found on the 'Salwar' of the prosecutrix. The prosecutrix being married semen on her salwar of no consequence when no semen found in vaginal swab. In support of his submission that there was no penetration, the learned counsel for the [5] accused-appellant placed reliance on the judgment of this Court rendered in the case of Bheru Lal Vs. State of Rajasthan, reported in 2006 WLC(Raj.) UC 616, wherein it was observed that “No evidence of penetration- Evidence of prosecutrix that accused caught hold of her hand, fell her on ground and sat on her chest- Accused held liable to be convicted only u/s. 354- Accused acquitted u/s. 376 (1) and instead convicted u/s. 354-Conviction u/S. 323 and 451 sustained. Similar view has been expressed by this Court in the case of Om Prakash Vs. State of Rajasthan, reported in 2004(3) R.C.C. 1169, wherein this Court has observed that “Attempt to commit rape- Appellant took the prosecutrix to temple, undressed her and got over her- Trial Judge held,- Offence of rape could not be established but found the appellant guilty of for offence of attempt to commit rape- Convicted and sentenced.” It has been further held by this Court that “appellant already served the sentence awarded- Conclusion of trial court does not suffer from infirmity. To strengthen his submission that the prosecutrix failed to prove the word 'penetration' and there was no corroboration of committing rape, the learned counsel for the accused-appellant relied on the judgment rendered by this Court in [6] the case of Shrilal @ Siriya Vs. The State of Rajasthan, reported in 1985 Cr.L.R. 397, wherein it has been observed by this Court that “She has herself not stated a word in her statement that there was penetration. The prosecution has miserably failed to bring out the ingredients of Section 376 IPC in the instant case and it appears that the Public Prosecutor did not take care while getting her statement recorded.” Reliance has also been placed by the learned counsel for the accused-appellant on the judgment rendered by the Hon'ble Supreme Court in the case of Aman Kumar & Anr. Vs. State of Haryana, reported in 2004 Cr.L.R. (SC) 2007, wherein the Hon'ble Supreme Court has observed as under:- “Though the prosecutrix's version in Court was of rape, when it is compared with the one giving during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor not specifically refer to penetration which is sine qua non for the offence of rape.” [7] Per contra, learned Public Prosecutor appearing for the State has strongly controverted the submissions made on behalf of the accused- appellant and contended that as per the prosecution evidence and the medical report, the allegation of committing rape by the accused has been fully proved by the prosecution and the prosecution succeeded in proving the guilt of the accused- appellant under Section 376 IPC beyond reasonable doubt. Learned Public Prosecutor also referred the statement of the prosecutrix PW2 Smt. Gamla Bai, who in her statement has categorically stated as under:- "जो घरवाला अपनी पत् नी के साथ काम करता है, वही काम इसने मेरे साथ िकया।" It is further contended that the prosecutrix also received injuries on her neck and hands and the same has been corroborated by the medical report and the judgments referred by the learned counsel for the accused-appellant are not applicable to the facts anc circumstances of the present case. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 27.10.2005 passed by the Court below. [8] I have also careful gone through the material available on the record as well the statements of the witnesses including the statement of the prosecutrix and perused the medical report. The main challenge to the impugned judgment by the accused-appellant is on the ground that the prosecution witnesses failed to prove that there was penetration. The second submission challenging the impugned judgment is that merely because semen was found on the 'Ghaghra' of the prosecutrix who is married, the accused-appellant cannot be punished for the offence under Section 376 IPC only on this count alone. Further the FIR has been lodged by the complainant after delay of two days without giving explanation. Considering the first aspect whether there was penetration or not and whether there is any offence committed under Section 376 IPC or not, Section 375 IPC reads as under:- “375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her on any person in whom she is interested in fear of death or of [9] hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” Learned counsel for the accused-appellant placed reliance on the judgment rendered by this Court in the case of Shrilal @ Siriya Vs. The State of Rajasthan (supra), wherein this Court has held that the prosecutrix in her statement has not mentioned a word about penetration. Applying the ratio decided by this Court in the case of Shrilal @ Siriya Vs. The State of Rajasthan (supra), and upon careful perusal of the statement of the prosecutrix, wherein she has categorically stated as under:- [10] "जो घरवाला अपनी पत् नी के साथ काम करता है, वही काम इसने मेरे साथ िकया।" Therefore, the ratio decided by this Court in the case of Shrilal @ Siriya Vs. The State of Rajasthan (supra) is not applicable to the facts and circumstances of the present case as the prosecutrix categorically stated that the accused- appellant committed rape on her. On the same point, the judgment rendered by this Court in the case of Bheru Lal Vs. State of Rajasthan (supra), has also been relied upon by the learned counsel for the accused-appellant, in which the prosecutrix herself declared hostile and there was no evidence that any report to the police was made before filing complaint in the Court. Thus, the ratio decided by this Court in the case of Bheru Lal Vs. State of Rajasthan (supra), is also not applicable to the facts and circumstances of the instant case. Further in the case of Om Prakash Vs. State of Rajasthan (supra), which has been relied upon by the learned counsel for the accused- appellant, there was offence of attempt to commit rape not of rape. Therefore, this judgment is also of no help to the accused-appellant. Hon'ble the Supreme Court in the case of Aman Kumar & Anr. Vs. State of Haryana (supra), has held that “Penetration is the sine qua non for an [11] offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.” The evidence of the prosecutrix and the doctor is significant to establish the penetration, as held by the Hon'ble Supreme Court. It is no doubt that the prosecutrix was married at the time of the incident and was mother of two children. It has also been explained why the report was lodged after delay of two days. Immediately after the incident, the prosecutrix informed her father-in-law and mother-in-law, but she lodged the complaint when her husband returned to the house. As per the statement of PW1 Dr. Gopal Lal Nagar, he examined the prosecutrix and found the injuries on her person. Thus, the prosecutrix as well as the medical evidence corroborated the prosecution story and the prosecution is able to prove the guilt against the accused-appellant for the offences under Sections 376 and 323 IPC beyond reasonable doubt and he has rightly been convicted for the aforesaid offences by the Court below vide impugned judgment dated 27.10.2005. Learned counsel for the accused-appellant at this stage submits that the accused-appellant is [12] in custody since 25.06.2005 and thus he has already undergone the sentence of about 3 years and one month, therefore, looking to the age of the accused-appellant the sentence awarded to him be reduced to the period already undergone by him in custody. Considering the overall facts and circumstances of the case, the conviction of the accused-appellant under Section 376 and 323 IPC deserves to be upheld but looking to the age of the accused-appellant and in view of the other facts and circumstances of the case, the interest of justice would be subserved if the accused-appellant is sentenced to the period already undergone by him in custody. In the result, the present criminal appeal is partly allowed. The conviction of the accused- appellant under Sections 376 and 323 IPC is upheld but the sentence awarded to him is reduced to the period already undergone by him in custody. The impugned judgment dated 27.10.2005 passed by the Additional Sessions Judge (Fast Track) No.3, Tonk is modified accordingly. Accused-appellant Khema @ Khemraj, who is in District Jail, Tonk, shall be set at liberty forthwith, if not required to be detained in connection with any other case. (K.S. RATHORE), J. /KKC/ (Reserved)