[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1093/2003 RAGHUVEER SINGH Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374(2) CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 17.07.2003 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), CHHABRA, DISTRICT BARAN IN SESSIONS CASE 102/2002. Date: 04/09/2008. H ON'BLE MR. J USTICE K.S. RATH ORE Mr. N.K. Singhal for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 17.07.2003 passed by the Additional District & Sessions Judge (Fast Track), Chhabra, Distri Baran, whereby the accused-appellant has been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Briefly stated the facts of the case are that on 05.04.1998, a written report was submitted by the prosecutrix Pragbai stating therein that on 04.04.1998 at 12.00 Noon, when she was all alone in [2] her house and her husband had gone to field for grazing animals, accused Raghuveer Singh entered in the house and despite resistance of the prosecutrix, he forcibly committed rape on her. Upon hearing hue and cry, her son Lekhraj, aged 8 years came to the spot and thereafter accused Raghuveer fled away. 3. On the basis of the above report, FIR No. 44/98 came to be registered at Police Station Bapchi, District Baran against the accused-appellant for the offence under Section 376 IPC and investigation commenced. After completion of the investigation, the police filed charge-sheet against the accused-appellant before the competent Court. The trial Court having gone through the material collected during investigation and placed before it and considering the rival submissions of the respective parties, framed charge under Section 376 IPC against the accused-appellant, who denied the charge and claimed to be tried. 4. During trial the prosecution examined as many as 13 witnesses in support of its case and got exhibited 11 documents. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he has stated that he has been falsely implicated in the case. [3] 5. The Additional Sessions Judge (Fast Track), Chhabra considering the submissions made on behalf of the respective parties and after carefully going through the evidence and material available on the record, vide its impugned judgment dated 17.07.2003 convicted and sentenced the accused-appellant in the manner stated herein above. 6. The main challenge to the impugned judgment dated 17.07.2003 by the accused-appellant is on the ground that the trial Court committed serious illegality in convicting the accused-appellant under Section 376 IPC without properly appreciating the evidence led by the prosecution as also the defence as the accused-appellant was able to show that there was previous enmity between the parties. A certified copy of the judgment has also been placed on behalf of accused-appellant, whereby the brother—in-law of the prosecutrix was convicted and sentenced to undergo rigorous imprisonment for 5 years, to show that there was previous enmity between the parties and to take revenge, a false case has been registered by the prosecutrix against the accused- appellant and this fact has not been considered by the trial Court while passing the impugned judgment. 7. So far as material contradictions in the statements of the prosecution witnesses is [4] concerned, the learned counsel for the accused- appellants referred the statements of PW5 Balveer Singh, PW3 Pragbai, the prosecutrix and PW11 Lekhraj and submits that the statements of the prosecutrix has not been corroborated by Balveer Singh and Lekhraj. 8. It is further contended that PW8 Dr. K.B. Sharma, who examined the prosecutrix and prepared the report Ex.P7, has not given any opinion regarding rape and as per Ex.P7, no injury was found on the back of the prosecutrix. In the police report also, it was observed that no injury was seen on the body of the prosecutrix. Further seizure memo of broken bangles Ex.P5 was also not proved by the prosecution and the police person who prepared Ex.P5 was not produced before the trial Court. 9. Learned counsel for the accused-appellant also submits that the 'Petticoat' of the prosecutrix was seized after 3 days of the incident and no explanation for this delay has been given. Further swab and pubic hair were not sent to the FSL for chemical examination and the FIR was also lodged after one day's delay. Thus, the prosecution has not been able to prove its case against the accused- appellant beyond reasonable doubt and, therefore, the impugned judgment of conviction and sentence [5] deserves to be quashed and set-aside. 10. Learned counsel for the accused-appellant submitted and requested that if on merit the case does not survive, then the sentence of 7 years rigorous imprisonment awarded to the accused- appellant be reduced to the period already undergone by him in custody as the accused-appellant has already served the sentence of more than 5 years and one month. In support of his submissions, the learned counsel for the accused-appellant placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Raj Kumar Alias Raju Yadav Alias Raj Kumar Yadav Vs. State of Bihar, reported in 2006(2) WLC(SC) Criminal 538, wherein in para No.5 the Hon'ble Supreme Court has held as under:- “5. Keeping in view the fact that there was delay of three days in lodging the FIR and the fact that the doctor (PW6), who examined the victim, in her testimony has deposed that she did not find any confirmatory evidence of rape on the victim, in the peculiar facts and circumstances of the present case, we deem it appropriate to reduce the sentence awarded to the appellant to the period already undergone. Ordered accordingly.” 11. On the other hand, learned Public Prosecutor appearing on behalf of the State has strongly controverted the submissions made on behalf [6] of the accused-appellant and submits that the prosecution is able to prove its case against the accused-appellant beyond reasonable doubt and the accused-appellant cannot take advantage of the minor contradictions and discrepancies in the statements of the prosecution witnesses and to strengthen his submissions, he placed reliance on the judgment recently rendered by the Hon'ble Supreme Court in Criminal Appeal No. 800/2008 (arising out of SLP (Cri.) No. 1434/2007- Ram Kumar Vs. Central Bureau of Narcotics, decided on 05.05.2008, wherein the Hon'ble Supreme Court has observed that “So far as alleged discrepancies in the testimony of PWs 2 and 4 are concerned, we find that there are minor variations which do not in any way affect the credibility of evidence of these witnesses.” 12. I have heard learned counsel for the accused-appellant, learned Public Prosecutor appearing for the State and minutely gone through the impugned judgment dated 17.07.2003 and also scanned the evidence and material placed on record. 13. I have also carefully gone through the statement of PW8 Dr. K.B. Sharma, who examined the prosecutrix and perused the medical report Ex.P7. Further, I also minutely scanned the judgment referred by the learned counsel for the accused- [7] appellant, whereby the brother-in-law of the prosecutrix has been convicted and sentenced to undergo rigorous imprisonment for 5 years, which established the fact that there was previous enmity between the parties. 14. Learned counsel for the accused-appellant does not want to argue the appeal on merit and without arguing on merit, only requested that considering the fact that the accused-appellant out of total sentence of 7 years' rigorous imprisonment awarded under Section 376 IPC, has already undergone the sentence of more than 5 years and one month in custody, the sentence awarded to the accused- appellant be reduced to the period already undergone. 15. Having heard rival submissions of the respective parties and upon careful perusal of the entire material and evidence available on the record, it is no doubt that sufficient evidence was tendered by the prosecution to prove the guilt of the accused-appellant and the prosecution is able to prove the offence under Section 376 IPC against the accused-appellant beyond reasonable doubt, but looking to the fact that the accused-appellant has already undergone the sentence of more than 5 years and one month in custody, keeping in view the fact [8] that there was delay of one day in lodging the FIR and considering the statement of PW8 Dr. K.B. Sharma, who examined the victim and in the peculiar facts and circumstances of the present case, this Court deem it appropriate to reduce the sentence awarded to the accused-appellant to the period already undergone by him in custody. 16. In the result, the present criminal appeal is partly allowed and the conviction of the accused- appellant under Section 376 IPC is maintained, but the sentence of rigorous imprisonment for 7 years awarded thereunder is reduced to the period already undergone by him in confinement. The accused- appellant Raghuveer Singh S/o Ram Singh, who is in Jail, shall be set at liberty forthwith, if not required to be detained in connection with any other case. The impugned judgment of conviction and order of sentence dated 17.07.2003 passed by the Additional District & Sessions Judge (Fast Track), Chhabara, District Baran stands modified to the extent as indicated herein above. (K.S. RATHORE), J. /KKC/