[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1017/2005 RAMRAJ Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 07.10.2005 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.1, TONK IN SESSIONS CASE 38/2005. Date: 01/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Ashvin Garg for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** On 30.05.2008 the matter was listed on the 3rd application seeking suspension of sentence imposed by the Additional Sessions Judge (Fast Track) No.1, Tonk vide impugned judgment dated 07.10.2005, whereby the accused-appellant has been convicted under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. 2 Learned counsel for the accused-appellant wishes to withdraw the third application seeking suspension of sentence and requested to hear the appeal finally on merit. [2] 3. Accordingly, the third application seeking suspension of sentence stands rejected as withdrawn. 4. At the request of learned counsel for the accused-appellant as well as learned Public Prosecutor for the State, heard the appeal on merit at this stage. 5. The present criminal appeal is directed against the judgment dated 07.10.2005 passed by the Additional Sessions Judge (Fast Track) No.1, Tonk, whereby the accused-appellant has been convicted under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. 6. Brief facts of the case are that on 13.02.2005 at about 12.30 p.m., PW1 Hariram lodged a report Ex.P1 at Police Station Sadar, Tonk stating therein that on 12.02.2005 at about 02:00- 02:30 p.m., his sister PW3 Samodra was working on the field of one Kedar. The complainant had gone to his house for taking diesel and when his elder sister PW2 Anokh reached on the filed, she heard cries of the prosecutrix PW3 Samodra. When she reached on the spot, she saw that prosecutrix PW3 [3] Samodra was lying on the field and the accused- appellant ran away from the place of occurrence. On being asked, the prosecutrix PW3 Samodra told that the accused-appellant forcibly committed rape on her. 7. On the basis of the said report, the police registered FIR Ex.P2 for the offence under Section 376 IPC and investigation commenced. After investigation, the police submitted challan for the offence under Section 376 IPC against the accused- appellant in the Court of Magistrate, from where the case was committed to the Court of Sessions and thereafter the same was transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Tonk. 8. The trial Court framed charge for the offence under Section 376 IPC against the accused- appellant, who denied the same and claimed to be tried. In support of its case, the prosecution examined as many as 13 witnesses and exhibited several documents. The statement of the accused- appellant was recorded under Section 313 Cr.P.C., wherein he stated that he has been falsely implicated in the case. In defence three witnesses were examined by the accused-appellant and also exhibited some documents. [4] 9. After conclusion of the trial, the trial Court i.e. Additional Sessions Judge (Fast Track) No.1, Bundi having heard rival submissions of both the parties, vide its impugned judgment dated 07.10.2005, convicted and sentenced the accused- appellant as indicated herein above. 10. Aggrieved and dissatisfied with the impugned judgment dated 07.10.2005, the present criminal appeal has been filed by the accused- appellant on the ground that the prosecutrix Samodra was medically examined by PW5 Dr. Mamta Garg, Medical Officer, Saadat Hospital, Tonk, who has categorically stated in her statement recorded in the Court that the prosecutrix was habitual to sexual intercourse and her hymen was old ruptured and she did not find any blood on the vagina of the prosecutrix. She also did not find any injury on her body and her age was between 17 to 19 years. 11. Learned counsel appearing for the accused- appellant referred the statement of prosecutrix PW3 Samodra, who in her statement has categorically stated that she had been married 12 months ago but since marriage neither she had gone to her husband's house nor she had marital relation with her husband. [5] 12. By referring the statement of the prosecutrix, learned counsel for the accused- appellant submits that it is a case of consent and as per the medical evidence also, the prosecutrix was habitual to sexual intercourse. 13. PW2 Anokh, elder sister of the prosecutrix, has clearly stated in her statement that the accused-appellant frequently used to visit the house of the prosecutrix and the prosecutrix also used to visit the house of the accused- appellant and thus there was intimacy between the accused-appellant and the prosecutrix and the accused-appellant was not stranger. In these circumstances, the story of the prosecution that the accused-appellant forcibly committed rape on the prosecutrix, cannot be accepted as the evidence on record shows that it was a case of consent. It is also informed that the accused-appellant has already remained in custody for about 3 years, one month and 16 days. 14. On the other hand, learned Public Prosecutor appearing for the State submits that the trial Court having examined the statements of witnesses produced by the prosecution as well as the accused-appellant and after going through the material available on record, has rightly observed that the prosecution is able to prove beyond doubt [6] that the accused-appellant had committed rape on the prosecutrix and, therefore, the accused- appellant has rightly been convicted for the offence under Section 376 IPC. 15. Further as per the statement of the prosecutrix and her elder sister PW2 Anokh, who had seen the accused-appellant running from the place of occurrence and on the basis of the medical evidence, the accused-appellant has rightly been held guilty and punished for the offence under Section 376 IPC. 16. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 07.10.2005 as well as the relevant material available on the record. 17. Hon'ble the Supreme Court in the case of Ram Kumar Vs. State of Haryana, reported in (2006) 4 SCC 347, has held that Section 376(1) and proviso thereto- Rape- Mandatory minimum sentence of seven years' RI- Reduction of- When warranted- “Adequate and special reasons”- What are- Marriage and leading of married life by prosecutrix subsequently- Prosecutrix abducted by appellant accused and then raped- Prosecutrix rescued from [7] accused after twenty days- Sessions Judge convicting accused under S. 376 IPC to minimum sentence of RI for seven years and under S. 366 IPC to RI for five years- High Court on appeal holding that merely on consideration of age of appellant, reduction of the sentence was not warranted- Supreme Court on examination of evidence holding that sufficient evidence was tendered by prosecution to prove guilty of accused- However, since prosecution had since been married and was living with her husband, held, having regard to the peculiar facts and circumstances of the case, the sentence imposed by the courts blow is on high side- Sentence reduced to three years.” 18. Having carefully gone through the statements of the prosecutrix, her elder sister PW2 Anokh and other statements of the witnesses and upon perusal of the medical evidence as well as the other material available on the record, in my view, sufficient evidence was tendered by the prosecution to prove the guilt of the accused-appellant and it is no doubt that the accused-appellant had committed rape with the prosecutrix PW3 Samodra and, therefore, he has rightly been convicted for the offence under Section 376(1) IPC by the trial Court. [8] 19. As per the record and as informed by the learned counsel, the accused-appellant has already undergone the sentence of about 3 years, one month and 16 days in custody, whereas the sentence awarded to the accused-appellant under Section 376 (1) IPC is rigorous imprisonment for seven years. 20. Looking to the peculiar facts and circumstances of the case and in view of the ratio decided by the Hon'ble Supreme Court in the case of Ram Kumar Vs. State of Haryana (supra), as the accused-appellant has already remained in custody for about 3 years, one month and 16 days, ends of justice would be amply met if the accused-appellant is sentenced to the period already undergone by him in confinement. 21. For the reasons stated herein above, the judgment of the trial Court dated 07.10.2005 so far as convicting the accused-appellant under Section 376(1) IPC is concerned, the same is upheld but instead of sentence of rigorous imprisonment for seven years under Section 376(1) IPC, the accused- appellant is sentenced to the period already undergone by him in confinement. The accused- appellant Ramraj S/o Bhanwarlal, who is in District Jail, Tonk shall be set at liberty forthwith, if not required to be detained in any other case. [9] 22. In the result, the criminal appeal filed by accused-appellant is partly allowed and the impugned judgment and order dated 07.10.2005 passed by the Additional Sessions Judge (Fast Track) No.1, Tonk stands modified to the extent as indicated herein above. (K.S. RATHORE), J. /KKC/