1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Man Singh Vs. State of Rajasthan S.B.Criminal Appeal No.63/2005 under Section 374 of the Code of Criminal Procedure against the judgment dated 28.6.2004 passed by Additional Sessions Judge (Fast Track), No.1 Alwar in Sessions Case No. 35/2004 (33/04) Date of Judgment 15th January, 2010 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr.Anshuman Saxena Amicus Curiae for the appellant. Mr.Mahendra Meena Public Prosecutor for State. **** BY THE COURT: This appeal has been filed against the judgment dated 28.6.2004 passed by Additional Sessions Judge (Fast Track) No.1, Alwar in Sessions Case 35/2004 (33/04) by which he convicted accused-appellant Man Singh under Section 366-A and 376 (2) (F)/511 IPC and sentenced to undergo five years rigorous 2 imprisonment and fine of Rs.2,000/-, in default of payment of fine to further undergo six months rigorous imprisonment under Section 366-A, and sentenced to undergo ten years rigorous imprisonment and fine of Rs.2,000/-, in default of payment of fine to further undergo one years rigorous imprisonment under Section 376(2)(F)/ 511 IPC and further observed that both sentences shall run concurrently. Brief facts of the prosecution case are that PW8-Hemveer Singh lodged FIR Ex.P/8 on 3.1.2004 at 7.30 p.m. and stated that at around 6.00 p.m. one Mona Baba alongwith a girl of 8 to 10 years went in his Rickshaw and they left the Rickshaw near Manu Marg and paid him fare. Passenger Mona Baba took that girl in a deserted house. Complainant was waiting for another passenger and within 5 minutes he heard cries of girl, then, he alongwith other labour went on the spot and saw that passenger Mona Baba was trying to put down that girl and girl was crying. 3 Mona Baba tried to run away, but he was caught by the complainant and other persons. On inquiry Mona Baba revealed his name as Man Singh. Man Singh was beaten by other persons on the spot and girl was taken by her family members. On this report case under Section 366, 376/511 IPC was registered. After completion of investigation challan under Section 363, 376(2)(F)/511 IPC was filed against the accused-appellant in the Court of Chief Judicial Magistrate, Alwar. Case was committed to the Court of Sessions Judge, Alwar which was transferred to Additional Sessions Judge (Fast Track) No.1, Alwar. Charge under Section 366- A,376(2)(F)/511 IPC was framed against the accused-appellant to which he denied. During trial ten witnesses were examined by the prosecution and after recording statement of accused under Section 313 Cr.P.C.and hearing arguments the accused-appellant was convicted and sentenced as aforesaid. 4 Heard learned counsel for the parties and perused the record. Learned counsel for the appellant does not press conviction, but submits that looking to the statement of other prosecution witnesses and discripency in the statement of prosecutrix recorded in the Court and recorded under Section 161 Cr.P.C. and in the absence of any injuries on the body of the prosecutrix award of maximum sentence was not proper and prays that sentence may be reduced and the appellant may be released on the sentence already undergone. On the other hand, learned Public Prosecutor submitted that looking to the nature of offence with 8 years old girl sentence awarded by the trial Court is appropriate, hence, appeal of the appellant may be dismissed. Perusal of record reveals that appellant took prosecutrix PW5-Bhagyashri with him in deserted house and made an attempt to commit rape and on cries of Bhagyashri, informant and 5 other persons reached on the spot and caught the appellant. PW5-Bhagyashri has stated that she is 8 years old and reading in 4th Class. PW3- Dr.Suman Bhatnagar stated that after medical examination Bhagyashri was found to be below 10 years. PW2-Babita Bansal has stated that she was Headmistress in Alwar Montensary Public School and as per school record date of birth of Bhagyashri is 24.12.95. Perusal of statement of these witnesses alongwith record proves that prosecutrix-Bhagyashri was about 8 years old at the time of occurrence. PW5-Bhagyashri stated in her statement that accused took her away in one deserted house. Accused put off underwear of prosecutrix and also put off his own trouser and after putting her down accused tried to insert his penis in the vagina of Bhagyashri and then on her cries other persons came and beat accused. She admitted in her cross examination that she did not disclose to the other persons who reached on the spot that 6 accused tried to do intercourse with her. She also admitted that in her police statement she did not disclose that accused tried to insert his penis in her vagina, but lateron stated that she told this fact to the police, but lateron again she resiled from her statement and admitted that she did not disclose this fact in her police statement. Her police statement Ex.D/1 also does not contain this fact. Medical examination report Ex.P/6 does not show any injury on the body or private parts of the prosecutrix-Bhageshwari. Thus, it becomes clear that there was no injury on the body of prosecutrix. In such circumstances whether award of maximum punishment i.e. 10 years under Section 376 (2) (F)/511 IPC was appropriate or not is to be seen. Learned counsel for the appellant placed reliance on 1997 Cr.L.J.4657 (SC) State of Maharashtra v. Rajendra Jawanmal Gandhi etc. in which sentence of 5 years and fine of Rs.40,000/- was held to be proper on account of attempt to 7 commit rape on a girl of 8 years of age. He also placed reliance on 2008 Cr.L.J.3194 (SC) Md.Kalam vs. State of Bihar in which sentence of 10 years reduced to 5 years alongwith fine of Rs.500/- in offence of attempt to commit rape of 6 years old girl. On the other hand learned Public Prosecutor has submitted that attempt to rape has been committed on a girl of 8 years, hence, no lenient view should be taken and sentence awarded by the trial Court is apprpriate and appeal should be dismissed. As discussed above, in the absence of any injury on the body and private parts of prosecutrix and discripency in her Court statement and police statement and in the light of judgments pronounced by the Apex Court, I deem it appopriate to reduce sentence of 10 years rigorous imprisonment to 7 years rigorous imprisonment in offence under Section 376(2)(F)/ 511 IPC and maintain fine imposed by the trial 8 Court. I also upheld order of conviction and sentence awarded under Section 366-A IPC awarded by the trial Court. Thus, the appeal of the accused- appellant-Man Singh is partly allowed and conviction ordered by the trial Court under Section 366-A, 376(2)(F)/511 IPC is maintained and sentence and fine awarded under Section 366-A IPC is also maintained, but sentence under Section 376(2)(F)/511 IPC is altered to 7 years instead of 10 years awarded by the trial Court, but fine imposed by the trial Court is maintained. (K.S.CHAUDHARI), J teekam