-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) S.B. CRIMINAL APPEAL NO.283/1987 (Ratna Vs. The State of Rajasthan) (2) S.B. CRIMINAL JAIL APPEAL NO.328/1987 (Ratna Vs. The State of Rajasthan) S.B. CRIMINAL APPEALS AGAINST THE JUDGMENT DATED 4/5.8.87 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE NO.2, UDAIPUR, CAMP SALUMBER IN SESSIONS CASE NO.20/1986. DATE OF JUDGMENT : 20th February, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Vishal Saraswat for Mr. Sanjay Mathur for the appellant Mr. S.N.Tiwari, Public Prosecutor. BY THE COURT : These two appeals are directed against the judgment dated 4/5.8.87 passed by the learned Additional Sessions Judge No.2, Udaipur, Camp Salumber in Sessions Case No.20/86, whereby, he convicted accused appellant – Ratna for offence under Section 376 IPC and sentenced him to undergo seven years' rigorous -2- imprisonment and to pay a fine of Rs.100, in default of payment of fine to further undergo one month's rigorous imprisonment. Accused appellant Ratna was also convicted for offence under Section 450 IPC and sentenced to three year's rigorous imprisonment and to pay a fine of Rs.100, in default of payment of fine to further undergo one month's rigorous imprisonment. Both the sentences were ordered to run concurrently. Facts leading to these appeals are that a private complaint was filed by one Dharma on 6.9.85 before the Judicial Magistrate, Kherwara, stating therein that his wife Kamtu was raped by one Ratna son of Nema on 28.8.85 at 12 noon, when she was sleeping in her house. He came to know about this fact on 4.9.85, when Dev Chand came to him and narrated the story at Himmat Nagar, Gujarat, where he went for work. This complaint was forwarded by the learned Magistrate to the police for investigation under Section 156(3) Cr.P.C. After investigation, police filed challan against the accused appellant Ratna for offence under Sections 376 and 450 IPC. Since, offence under Section 376 IPC was triable by the court of sessions, therefore, the case was committed, where the accused appellant was charged for offence under Section 376 and 450 IPC, to which he pleaded not guilty. Prosecution examined nine witnesses. Statement of the accused appellant was recorded -3- under Section 313 Cr.P.C. No evidence was led in defence. After hearing the arguments, the learned trial Judge convicted the accused appellant as indicated above. Since, both these appeals are arising out of the same incident, one filed by the accused appellant from jail and another in a regular way, therefore, they are being disposed of by this common judgment. It has been contended by the learned counsel for the accused appellant that in this case, FIR has been lodged after ten days of the incident and there is no medical evidence to support the incident of rape, as the prosecutrix was not medically examined. According to the learned counsel, the prosecutrix has also not specifically said about committing the rape. She has tried to evade the answer about rape. According to him, the only witnesses of the seen of crime are child witnesses and their testimony is not reliable. Learned counsel has further submitted that the main witness of the case i.e. wife of Dev Chand has not been examined by the prosecution on whose version, Dev Chand said to have went to the complainant at Himmat Nagar, Gujarat. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court. -4- It is of-course true that in this case, FIR has been lodged after ten days of the incident but merely because the FIR has been lodged at a considerable delay, this cannot be a ground for rejecting the version of the prosecution, specially in cases of rape, when normally the lady tries to hide the version to the members of the society or her relatives unless here husband or parents are available. In this case, the husband of the prosecutrix is said to have left to Gujarat for working, where the incident was narrated by Dev Chand PW-8, who is brother-in-law of the prosecutrix, to his brother-in-law, who was working at Himmat Nagar, Gujarat. Therefore, in the present case, looking to the nature of the offence, it cannot be said that FIR was delayed. Coming to the offence of rape, it is true that neither Mst. Kamtu was medically examined nor her clothes with semen have been found. Further, there were no injuries on her private parts, except her own version, which is PW-2, in which she has not specifically stated that actual penetration took place. To constitute an offence of rape punishable under Section 376 IPC, the basic element as required under Section 375 IPC is penetration against her will. During examination-in-chief, she was repeatedly asked about this, but she tried to evade the answer and only stated that accused appellant committed an act, -5- which a man commits with a lady. According to the prosecutrix, when accused appellant Ratna was coming out after committing rape, her son Babuda came. Babuda PW-5 has of-course told that accused appellant Ratna came to his house, but that evidence is not sufficient to link the accused appellant with the commission of rape. The daughter of prosecutrix Sadan PW-3 has also not specifically stated about committing of rape, except that accused appellant Ratna came to her house and put sari on the mouth of her mother and felt her down. According to her, this incident was also witnessed by Rama, who is son of her brother-in-law and the wife of Dev Chand. Rama has turned hostile and wife of Dev Chand has not been examined. Dev Chand PW-8 has stated that the incident was narrated to him by his wife, which he told to his brother-in-law Dharma at Himmat Nagar, Gujarat. Dharma PW-1 has stated that on being told by Dev Chand, he came and filed complaint after consulting the lawyer Ex.P-6. From the above evidence, it reveals that in the absence of penetration, the offence of rape has not been established, specially when neither the semen was found on the clothes of Mst. Kamtu nor there were injuries on her private parts. From the evidence as it has came out that it is a case of outraging the modesty of a woman, which is punishable under Section 354 IPC and by making house trespass, punishable under Section 451 IPC. -6- Consequently, this appeal is allowed in part. Accused appellant Ratna is convicted for offence under Section 354 IPC instead of offence under Section 376 IPC and for offence under Section 451 IPC instead of Section 450 IPC. Since, the incident is 23 years' old and accused appellant has remained in custody for about three months during trial and after conviction, therefore, the ends of justice would meet if the accused appellant is sentenced to the period already undergone. Accordingly, accused appellant Ratna S/o Nema is sentenced to the period already undergone. However, the fine imposed shall remain intact. Learned counsel for the accused appellant is directed to deposit the fine with the trial court within a period of one month from today, if not deposited so far. (DEO NARAYAN THANVI), J. ms rathore