State Of Rajasthan vs Sri Chand

2. The facts of this case, as per the prosecution story, are that on 1.08.2002, Gujarmal son of Sukkan Ram Lali, resident of Baseth, P.S. Kathumar, District Laxmangarh (Rajasthan), submitted a written report at Police Station Kathumar stating therein that on 31.7.2002, at around 10 A.M., his daughter the prosecutrix, aged 12 years, had gone to the jungle to graze buffaloes. Sri Chand son of Madan Lal Saini, whose house is in the jungle, approached his daughter, the prosecutrix and told her that his sister was calling her. By luring her in this way, Sri Chand took his daughter the prosecutrix to his house. No one was there in the house and Sri Chand took his daughter the prosecutrix inside the room, closed the door from inside, forcibly undressed her and made her to lie on the ground and started raping her forcibly. The prosecutrix cried upon which Sri Chand put some cloth in her mouth. Hearing her cries, Bihari Saini, who was passing nearby, reached there and he witnessed the whole incident. Saroj wife of Prahlad also reached at the site. Out of fear, accused Sri Chand fled away from the place of incident.

3. On the basis of the above written report, Case No.116/2002 was registered under Section 376/511 of the Indian Penal Code, 1860 (“IPC”) and investigation started. During the course of investigation, Investigating Officer ASI Heera Lal visited the site and prepared a site map. Statements of complainant Gujarmal, prosecutrix and Bihari Saini were recorded under Section 161 of Cr.P.C. Statement of prosecutrix was also got recorded under Section 164 Cr.P.C. and she was further examined at Alwar to ascertain her age, medical and for X- ray. A report regarding her age was obtained in which the age of prosecutrix was stated as 16 years. Accused Sri Chand was arrested and was got examined regarding his potency to perform sexual intercourse. After the investigation, it was found that accused Sri Chand committed the offence under Section 376/511 of IPC. A charge-sheet was filed in the Court of Judicial Magistrate, Kathumar, and thereafter the case was committed to the Court of Additional District and Sessions Judge, Laxmangarh, for adjudication. Accused Sri Chand was served the charge- sheet and he denied the charges and claimed for trial.

4. Before the Trial Court, the prosecution examined ten witnesses and after analyzing the evidence on record and after hearing the arguments advanced on behalf of the parties, the Trial Court acquitted the accused respondent by granting him probation. The State of Rajasthan preferred an appeal before the High Court, for grant of leave to appeal against the order of acquittal, which was rejected. Aggrieved by the order of the High Court, the State of Rajasthan has preferred this criminal appeal, by special leave, before this Court.

6. The Court of Additional District and Sessions Judge, Fast Track, Laxmangarh, noticed in his judgment that though there is a serious charge of attempt to rape against the accused but the First Information Report has been lodged with a delay of about 28 hours for which neither any explanation has been given in the Report nor the complainant has mentioned anything in his statement about the said delay, which makes the prosecution case doubtful. The learned Sessions judge further found that the statement of PW3 Biharilal Saini cannot be doubted as it corroborates the statement of PW5 the prosecutrix herself. However, PW3 had stated that when he reached the house of Sri Chand he saw Sri Chand fleeing away while prosecutrix was inside and her clothes were disturbed. The learned Sessions Judge noted that non production of Saroj, an alleged eye witness, is an important circumstance; however, the testimony of prosecutrix cannot be discarded on this ground. The prosecutrix in her statement has corroborated the story in FIR, as recorded above. However she only says that the accused did bad work with her. On repeated questioning about what bad work was done, she remained quiet with head bowed down. The learned Sessions judge found that there is consistent statement of the prosecutrix and PW3 that accused Sri Chand undressed her as well as himself. Therefore, the learned Sessions Judge found the offence under Section 354 of IPC as proved. Thereupon, the learned Sessions Judge went on to grant the accused benefit of Probation of Offenders Act in view of his clear record and no prior conviction.

12. In view of the discussion in the foregoing paragraphs, we allow this appeal to the limited extent that the accused respondent is not granted the benefit of Probation of Offenders Act, 1958, but his conviction is maintained under Section 354 I.P.C. only. The accused respondent is hereby sentenced to rigorous imprisonment for two years. The respondent is directed to surrender within a period of two weeks to serve out the sentence, failing which the Additional District and Sessions Judge, Laxmangarh, shall take necessary steps to take him into custody to serve out the sentence. Let a copy of this judgment be sent to the Additional District and Sessions Judge, Laxmangarh, for information and necessary action.

….....….……………………J (Pinaki Chandra Ghose) ….....…..…………………..J (Uday Umesh Lalit) New Delhi;

May 11, 2015.