Mahadeva vs State of Rajasthan

S.C. Mittal, J.—The appellant challenges his conviction u/s 376 IPC and sentence, and fine Imposed against him.

The facts leading to the conviction, briefly stated are that Tari aged 10 years daughter of Khesha Purohit resident of Kuda Dhevecha was returning to home at 3.30 PM on 9.4.94 after day''s work in the field of Moti. Tari was passing near the field of Narayan that the appellant came from behind and caught her, fell her on the ground and the appellant committed rape upon her. She raised a cry and Baga PW 6 approached there and challenged the appellant. The appellant ran away. Baga PW 6 saw that the vigina of Tari was bleeding with semen. He brought Tari to home narrated the incident to her mother Jhini PW 2. Tari also told to her mother about the incident. Jhini also saw the ''Chaddi'' in torn condition and bleeding from vagin with semen and blood and semen stains on the under garment. The father of the prosecutrix Tari gone to Tiloda who was called from there in the. morning and the whole incident was also narrated to him. Prema uncle of the prosecutrix Tari lodged first information report Ex-P-1 at Police Station, Bagoda on 10.4.94 at 9 PM. A case u/s 376 IPC was registered and the investigation began against the appellant. Shri Shaitansingh Investigating Officer inspected the place of occurrence and seized pieces of broken bangles. He prepared the site memo and site map on 11.4.94 which is Ex. P-9 and Ex. P-10. The garment of Tari i.e. ''Nicker'' bearing blood and semen stains was also taken and sealed by Ex. P-11. Kum Tari was medically examined on 11.4.94 for injuries on person and her age. Her radiological age was more than 10 years and less than 12 years. Injuries on her private parts were present. Posterior fissure was torn right to middle side irregular extending to left. Hymen was torn posteriorly and it was inflamed and tender. Blood staind discharg was coming out from vagina. She could not tolarate the pain and did not allow the Doctor to insurt little finger. The injuries have been proved by Dr. Pramod Kumar Saxena PW 7. The appellant was also examined after arrest on 11.4.94. He was well built and was physically fit to perform sexual intercourse. A chemical analyst report Ex. P-14 shows that human semen was detected on the Nicker of Tari and Adawata (Doti) of the accused.

Tari PW 3 deposed on bath about the incident. It has been supported by Baga PW 6 and her mother Jhini PW 2 and the medical evidence as well as chemical analyst report as described above.

The trial court has relied upon the statement of prosecutrix Tari PW 3 corroborated by Baga PW 6 Jhini PW 2 and the medical evidence. The appellant has been convicted for the offence u/s 376 IPC and sentenced to undergo 10 years R.I. and a fine of Rs. 500/- or in default to undergo three months R.I.

I have heard the arguments of learned counsel on behalf of the appellant and learned Public Prosecutor. It has been argued on behalf of the appellant that there is inordinate delay in lodging the FIR and no satisfactory explanation has been given by the prosecution. The prosecutrix has changed the version of the case when she deposed in her statement that she was coming from the Batala field whereas the prosecution story is that she was coming from the field of Moti. This change has been made deliberately because the field of Narayan does not come on the way if one comes from the field of Moti to the house of the prosecutrix. It is further argued that Baga PW 6 is a chance witness and his presence has not been shown in the site map. There is no corroboration from medical evidence and report of the chemical examiner because semen was not detected from the vaginal swab and smear. No blood stains marks have been found on Adawata (Doti) Of the accused. Learned Public Prosecutor has contended that the statement of prosecutrix Tari PW-3 is wholly reliable and there is no reason to disbelieve her. She has been fully supported by Baga PW 6 and her mother PW 2 Jhini. The presence of Baga on the spot is proved and his testimony cannot be discarded merely because Investigating Officer did not show his presence in the site map.

I have carefully scrutinized the prosecution evidence on record. There are no contradiction in the statements of Tari PW 3, Baga PW 6 and Jhini PW 2 about the material parts of the occurrence. Tari PW 3 has clearly stated that when she was going on the path way the accused came from behind and caught her. He fell her down and committed rape. She has clearly stated that the appellant penetrated his penis in the vagina. On raising her cry Baga came there and accused ran away. Bleeding started from vagina and the semen also flowed out. She narrated the incident to her mother. She has stated that she has gone to work on the field named Batala. Her bangles were broken at the time of incident and fell on the ground. The accused had torn his ''Chaddi'' from the side of her private parts. I have gone through her cross examination and I do not find any reason to disbelieve her testimony.

Baga PW 6 has supported her version that he was coining from his field and when reached near the field of Narayan, he heard the cries of Tari. He saw from some distance that the appellant was committing rape upon her and on seeing him the accused ray away. He ran after the accused about 20 Pawda but could not catch him. He saw bleeding with semen coming out of Tart''s vagina. He took her to her house and told about the incident to her mother Jhini. Similarly, Jhini PW 2 has supported the version of Baga and her daughter Tari. There is no change in the version of incident by the prosecutrix Tari. Baga has stated in the cross examination that Batala wala Field was cultivated by Moti and from there Tari was coming after performing the work. The field of Narayan comes on the way from Batala wala Field to the house of prosecutrix.

The prosecutrix also gets corroboration from the fact that broken bangles were found on the spot. The medical examiner also supports her version of the indicent and establishes that the appellant committed rape upon her. Injuries on the private parts of the prosecutrix clearly establish penetration and offence of rape is complete. Therefore, Dr. Pramod Kumar Saxena''s reply in cross examination that it was either rape or attempt to rape is of no avail to the appellant. The delay in lodging FIR also stands explained. The father of Tari had gone to village Tiloda who was informed by his younger brother Prema PW 1. When her father came back from Tiloda then the report Ex. P.I was lodged by Prema. In such cases delay in lodging FIR does not lead to an inference that the report is false and also does not indicate that the version given by the prosecutrix is untrustworthy. There is no reason to come to the conclusion that the prosecutrix Tari has given tutored version. Baga PW 6 was coming from his field in the evening and therefore he cannot be treated as a chance witness because his presence on the place of occurrence is fully proved. He was the person who took Tari from the place of occurrence to her house which is corroborated by her mother Jhini PW 2.

In view of the above discussion, I do not find any merit in the arguments advanced by the learned counsel for the appellant. I agree with the appreciation and evaluation of the evidence on record made by learned trial court and come to the conclusion that the offence u/s 376 IPC has been proved beyond reasonable doubt.

In the end the learned counsel for the appellant nas argued about the quantum of sentence and contended that it may be reduced looking to the age of 25 years of the appellant. He is the only son of his father. He has remained in jail for about 2 years and 4 months. It is his first offence without any criminal antecedent. Reliance is placed on 1996 Cri. L.R. 97 Pappu Pat Ram v. State of Rajasthan. In the above cited case, the age of the accused was 20 years and the offence was committed by him in the spur of moment and passion. He remained in custody for about two years and 5 months. Therefore the sentence was reduced to the period already undergone and a fine of Rs. 15,000/-was imposed upon him. The compensation of Rs. 15,000/- was awarded to the victim.

The learned Public Prosecutor has vehemently opposed the reduction of the sentence and relied upon 1996 (1) RCD 4(SC) State of Andhra Pradesh v. Bodem Sundara Rao. In the above case, the accused was convicted u/s 376(1). The age of the prosecutrix was 13 to 14 years. In the facts and circumstances of the case the sentence of 4 years was enhanced to the minimum prescribed sentence. I have carefully considered about the quantum of sentence. I am of the view that in such cases, compensation to the victim is no solace. In Indian society in such matters the victim does not like to accept money even as compensation because the offence casts shame and insult upon her. The age of the victim in the case in hand is 10 to 12 years and she sufferred injuries on her private parts. The offence is not found to have been committed in the spur of moment or passion. There are no mitigating circumstances in favour of the appellant. The appellant with all intention caught the prosecutrix when she was going to her house and committed this offence. Therefore, I agree with the learned Public Prosecutor that there are no valid reasons to reduce the sentence awarded to the appellant.

In view of the above discussion, I come to the conclusion that the offence u/s 376 IPC has been proved against the appellant beyond reasonable doubt and the conviction as well as the sentence awarded to him must be upheld.

13, Consequently, the impugned judgment dated 26.6.95 convicting the appellant for the offence u/s 376 IPC and sentence of imprisonment of 10 Years R.I. and a fine of Rs. 500/- or in default to undergo three months R.I. is hereby maintained. The appeal is hereby dismissed.