Bali Alias Bahal Singh Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/771649
SubjectCriminal
CourtRajasthan High Court
Decided OnJan-04-2001
Case NumberCriminal Appeal No. 169 of 1982
Judge Sunil Kumar Garg, J.
Reported in2001CriLJ909; 2001WLC(Raj)UC284
ActsCode of Criminal Procedure (CrPC) - Sections 313 ; Indain Penal Code (IPC) - Sections 354, 376 and 450
AppellantBali Alias Bahal Singh
RespondentState of Rajasthan
Appellant Advocate Ashok Upadhyaya, Adv.
Respondent Advocate Anil Upadhyaya, Public Prosecutor
Excerpt:
- - rajendra kumar has clearly stated in his statement that no definite opinion regarding rape on pw-2 mukhtyaro can be given for want of fsl report and fsl report has not been produced in the present case. she has further stated that pw-2 mukhtyaro is an innocent girl and her mental power is very weak. 2000/- and two sureties in the like amount, but he has not furnished the same so far.sunil kumar garg, j.1. this is an appeal by the accused-appellant against the judgment and order dated 30-4-1982 passed by the learned sessions judge, sri ganganagar in sessions case no. 34/1981, by which the learned sessions judge convicted the accused-appellant for the offence under sections 376 and 450, ipc and sentenced in the following manner:-name of accused- convicted under section sentence awarded appellantbali alias banal singh 376 ipc five years' ri and a fine of rs. 500/-, in default of payment of fine, to further undergo ri for 3 months. 450 ipc three years' ri and a fine of rs. 500/-, in default of payment of fine, to further undergo ri for 3 months. the above sentences were ordered to run concurrently.2. the facts giving rise to this appeal, in short, are as follows :-on 10-1-1981, pw-1 indobai lodged an oral report ex. p/1 before pw-7 mani ram, who was sho on that day at police station, matilirathan district sri ganganagar stating inter alia that day before yesterday she had gone to gurusar to take the muklawa of her son mahendra and mahendra was also with her. it is further stated in the report that at her house, she has left her daughters mst. mukhtyaro, pw-2 (prosecutrix) aged about 28 years and guddi, pw-3 aged about 16 years and pappi, aged about 10 years and her husband was also out of station and had gone to bikaner. pw-2 mukhtyaro was married and she had one son of one and half years and for the last one and half years, she has been living with pw-1 indobai. it is further stated in the report that on the previous day i.e. on 9-1-1981, she has come to her house and when she came she was informed by pw-2 mukhtyaro (prosecutrix) that at about 2.00 p.m. when she was sitting in her house on the cot and combing her hair, guddi and pappi had gone to the field and accused-appellant came there and committed rape on her. it is further stated in the report that thereafter pw-3 shishuguddi came there and she made hue and cry and thereafter, accused-appellant ran away from the scene and when he was running, he was seen by pw-5 kartar singh and pw-4 chandu ram. it is further stated in the report that as she was having no transportation, therefore, report has been lodged on the next day i.e. on 10-1-1981.on this report, pw-7 maniram registered the case and started investigation.during investigation, pw-2 mukhtyaro (prosecutrix) was got medically examined by pw-6 dr. rajendra kumar and her medical examination report is ex. p/3 and the report determining her age is ex. p/4, where her age has been determined as 20 years.after usual investigation, a challan was filed against the accused-appellant in the court of magistrate and from where the case was committed to the court of session.on 28-7-1981, the learned sessions judge, sri ganganagar framed charges against the accused-appellant for the offence under sections 376 and 450, ipc. the charges were read over and explained to the accused-appellant. the accused-appellant denied the charges and claimed trial.during the course of trial, the prosecution examined as many as seven witnesses and got exhibited several documents. thereafter, statement of the accused-appellant under section 313, cr.p.c. was recorded. no evidence was led by the accused-appellant in defence.after conclusion of trial, the learned sessions judge, sri ganganagar vide his judgment and order dated 30-4-1982 convicted the accused-appellant for the offence under sections 376 and 450, ipc and sentenced in the manner as stated above.before proceeding further, it may be stated here that when the statement of pw-2 mukhtyaro (prosecutrix) was being recorded by the learned sessions judge, he felt that she was suffering from mental disease and she was not in a position to give statement and, therefore, he ordered that her mental state be got examined by the doctor.on the file, there is a report of the superintendent, mental hospital, jaipur dated 27-2-1982, which speaks that pw-2 mukhtyaro was suffering from mental retardation and her mental age was three years and i.q. was 21.it may further be stated here that because of this fact her statement could not be recorded and proceedings have taken place in the absence of her statement.the learned sessions judge while recording conviction of the accused-appellant came to the following conclusions :-1. that on the date of incident, pw-2 mukhtyaro (prosecutrix) was patient of mental retardation.2. that pw-6 dr. rajendra kumar has proved x-ray report ex. p/4 and has come to the conclusion that on the date of incident, the age of pw-2 mukhtyaro (prosecutrix) was 20 years.3. that pw-6 dr. rajendra kumar has come to the conclusion that no definite opinion can be given about the commission of rape with pw-2 mukhtyaro in the absence of fsl report and the fsl report has not been produced in the present case.4. that the learned sessions judge has relied on the evidence of pw-3 shishuguddi and after relying on her statement, he has convicted the accused-appellant for the offence under sections 376 and 450, ipc.aggrieved from the said judgment and order dated 30-4-1982 passed by the learned sessions judge, sri ganganagar, the present appeal has been filed by the accused-appellant.3. in this appeal, the following submissions have been made by the learned counsel for the accused-appellant :-1. that there is no evidence of intercourse with pw-2 mukhtyaro (prosecutrix) by accused-appellant and there is also no evidence on record which shows that pw2 mukhtyaro has any injury on her private part and thus, there is no medical evidence in this case and in such circumstances, in absence of statement of pw-2 mukhtyaro, the conviction of the accused-appellant for the offence under sections 376, ipc cannot be maintained.2. that since there is statement of pw-3 shishuguddi which shows that she saw the accused-appellant committing rape on pw-2 mukhtyaro (prosecutrix), therefore, from this point of view also, a case at the most under section 354, ipc can be said to have been proved beyond reasonable doubt and not under section 376, ipc, as the fact that sexual intercourse by accused-appellant with her has taken place in actual form has not been established by the prosecution.3. that the accused-appellant is in jail for the last more than eight months and, therefore, he should be sentenced to the period already undergone by him.4. the learned public prosecutor has not much controverted the above arguments, but has argued that in case the court comes to the conclusion that a case under section 354, ipc is made out against the accused-appellant, then, quantum of fine be raised.5. i have heard the learned counsel for the accused-appellant and the learned public prosecutor and perused the record of the case.6. so far as the fact that pw-2 mukhtyaro (prosecutrix) was a patient of mental retardation on the date of occurrence is concerned, there is no dispute on this point and because of this reason, she has not been examined in court and, thus, there is no evidence of the prosecutrix herself to support the findings of conviction of rape.7. so far as the medical evidence is concerned, pw-6 dr. rajendra kumar has clearly stated in his statement that no definite opinion regarding rape on pw-2 mukhtyaro can be given for want of fsl report and fsl report has not been produced in the present case. there is no dispute on the point that pw-2 mukhtyaro was having no injury on her private part when she was got medically examined and she was a married woman.8. pw-1 indo bai, who lodged the oral report ex. p/1 on 10-1-1981, has stated that she was informed by pw-2 mukhtyaro that accused-appellant has committed rape on her, but she has admitted in her cross-examination that at that time she did not find her clothes torn up. she has further stated that pw-2 mukhtyaro is an innocent girl and her mental power is very weak.9. pw-3 shishuguddi is the sister of pw-2 mukhtyaro and daughter of pw-1 indo bai and she states that when she came from the field, she saw accused-appellant committing rape on pw-2 mukhtyaro and when she made hue and cry, her aunty mst. kako and pw-4 chandu ram also came there and accused-appellant ran away.10. pw-4 chandu ram also admits this fact that he saw the accused-appellant running from the scene.11. pw-5 kartar singh is another witness, who states that he was told by pw-3 shishuguddi that accused-appellant teased pw-2 mukhtyaro and, thereafter, he went inside the house and asked pw2 mukhtyaro as to what has happened and upon this, she told him that accused-appellant has committed intercourse with her.12. looking to the above evidence on record and especially looking to the facts that pw-2 mukhtyaro (prosecutrix) has not been examined in the court; she was patient of mental retardation on the date of incident; she was married woman; she did not receive any injury on private part or other parts of her body; her clothes were not torn up; there is no actual evidence proving that sexual intercourse in actual terms has taken place with her by accused-appellant; there is statement of pw-5 kartar singh that he was told by pw-3 shishuguddi that accused-appellant teased pw-2 mukhtyaro, the case of the prosecution cannot travel beyond the offence under section 354, ipc, as the prosecution has proved that accused-appellant used the criminal force on pw-2 mukhtyaro with an intention to outrage her modesty and thus, the findings of the learned sessions judge convicting accused-appellant for the offence under section 376, ipc cannot be maintained and accused-appellant is liable to be convicted under section 354, ipc instead of 376, ipc.13. so far as the conviction of accused-appellant for the offence under section 450, ipc is concerned, the findings of the learned sessions judge in this respect are maintained.14. since the accused-appellant is going to be convicted under section 354, ipc instead of 376, ipc, the argument of the learned counsel for the accused-appellant that he may be sentenced to the period already undergone becomes relevant.15. as per the report on the back of the warrant, accused-appellant has been in pc and jc from 16-1-1981 to 30-1-1981 and apart from this, as per the order sheet of this court dated 7-4-2000, it appears that accused-appellant was sent to jail and he was ordered to be released on his furnishing personal bond of rs. 2000/- and two sureties in the like amount, but he has not furnished the same so far. thus, he has been in jail since 7-4-2000. in my considered opinion, for the offence under sections 354 and 450, ipc, the period which he has already undergone would be sufficient sentence to meet the ends of justice and thus, he should be sentenced to the period already undergone by him for the said offences.16. in the result, the appeal filed by the accused-appellant bali alias bahal singh is partly allowed. the conviction of the accused-appellant is altered from 376, ipc to 354, i.p.c and he is accordingly convicted under section 354, ipc in place of 376, ipc. however, his conviction under section 450, ipc is maintained. for the offence under sections 354 and 450 ipc, the accused-appellant is sentenced to the period already undergone by him. the judgment and order dated 30-4-1982 passed by the learned sessions judge, sri ganganagar stand modified accordingly.since the accused-appellant bali alias bahal singh is in jail, he be released forthwith, if not required in any other case.
Judgment:

Sunil Kumar Garg, J.

1. This is an appeal by the accused-appellant against the judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 34/1981, by which the learned Sessions Judge convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the following manner:-

Name of accused- Convicted under section Sentence awarded

appellant

Bali alias Banal Singh 376 IPC Five years' RI and a fine of Rs. 500/-, in

default of payment of fine, to further

undergo RI for 3 months.

450 IPC Three years' RI and a fine of Rs. 500/-,

in default of payment of fine, to further

undergo RI for 3 months.

The above sentences were ordered to run concurrently.

2. The facts giving rise to this appeal, in short, are as follows :-

On 10-1-1981, PW-1 Indobai lodged an oral report Ex. P/1 before PW-7 Mani Ram, who was SHO on that day at Police Station, Matilirathan District Sri Ganganagar stating inter alia that day before yesterday she had gone to Gurusar to take the Muklawa of her son Mahendra and Mahendra was also with her. It is further stated in the report that at her house, she has left her daughters Mst. Mukhtyaro, PW-2 (prosecutrix) aged about 28 years and Guddi, PW-3 aged about 16 years and Pappi, aged about 10 years and her husband was also out of station and had gone to Bikaner. PW-2 Mukhtyaro was married and she had one son of one and half years and for the last one and half years, she has been living with PW-1 Indobai. It is further stated in the report that on the previous day i.e. on 9-1-1981, she has come to her house and when she came she was informed by PW-2 Mukhtyaro (prosecutrix) that at about 2.00 p.m. when she was sitting in her house on the cot and combing her hair, Guddi and Pappi had gone to the field and accused-appellant came there and committed rape on her. It is further stated in the report that thereafter PW-3 Shishuguddi came there and she made hue and cry and thereafter, accused-appellant ran away from the scene and when he was running, he was seen by PW-5 Kartar Singh and PW-4 Chandu Ram. It is further stated in the report that as she was having no transportation, therefore, report has been lodged on the next day i.e. on 10-1-1981.

On this report, PW-7 Maniram registered the case and started investigation.

During investigation, PW-2 Mukhtyaro (prosecutrix) was got medically examined by PW-6 Dr. Rajendra Kumar and her medical examination report is Ex. P/3 and the report determining her age is Ex. P/4, where her age has been determined as 20 years.

After usual investigation, a challan was filed against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session.

On 28-7-1981, the learned Sessions Judge, Sri Ganganagar framed charges against the accused-appellant for the offence under Sections 376 and 450, IPC. The charges were read over and explained to the accused-appellant. The accused-appellant denied the charges and claimed trial.

During the course of trial, the prosecution examined as many as seven witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. No evidence was led by the accused-appellant in defence.

After conclusion of trial, the learned Sessions Judge, Sri Ganganagar vide his judgment and order dated 30-4-1982 convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the manner as stated above.

Before proceeding further, it may be stated here that when the statement of PW-2 Mukhtyaro (prosecutrix) was being recorded by the learned Sessions Judge, he felt that she was suffering from mental disease and she was not in a position to give statement and, therefore, he ordered that her mental state be got examined by the doctor.

On the file, there is a report of the Superintendent, Mental Hospital, Jaipur dated 27-2-1982, which speaks that PW-2 Mukhtyaro was suffering from mental retardation and her mental age was three years and I.Q. was 21.

It may further be stated here that because of this fact her statement could not be recorded and proceedings have taken place in the absence of her statement.

The learned Sessions Judge while recording conviction of the accused-appellant came to the following conclusions :-

1. That on the date of incident, PW-2 Mukhtyaro (prosecutrix) was patient of mental retardation.

2. That PW-6 Dr. Rajendra Kumar has proved X-ray report Ex. P/4 and has come to the conclusion that on the date of incident, the age of PW-2 Mukhtyaro (prosecutrix) was 20 years.

3. That PW-6 Dr. Rajendra Kumar has come to the conclusion that no definite opinion can be given about the commission of rape with PW-2 Mukhtyaro in the absence of FSL report and the FSL report has not been produced in the present case.

4. That the learned Sessions Judge has relied on the evidence of PW-3 Shishuguddi and after relying on her statement, he has convicted the accused-appellant for the offence under Sections 376 and 450, IPC.

Aggrieved from the said judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar, the present appeal has been filed by the accused-appellant.

3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellant :-

1. That there is no evidence of intercourse with PW-2 Mukhtyaro (prosecutrix) by accused-appellant and there is also no evidence on record which shows that PW2 Mukhtyaro has any injury on her private part and thus, there is no medical evidence in this case and in such circumstances, in absence of statement of PW-2 Mukhtyaro, the conviction of the accused-appellant for the offence under Sections 376, IPC cannot be maintained.

2. That since there is statement of PW-3 Shishuguddi which shows that she saw the accused-appellant committing rape on PW-2 Mukhtyaro (prosecutrix), therefore, from this point of view also, a case at the most under Section 354, IPC can be said to have been proved beyond reasonable doubt and not under Section 376, IPC, as the fact that sexual intercourse by accused-appellant with her has taken place in actual form has not been established by the prosecution.

3. That the accused-appellant is in jail for the last more than eight months and, therefore, he should be sentenced to the period already undergone by him.

4. The learned Public Prosecutor has not much controverted the above arguments, but has argued that in case the Court comes to the conclusion that a case under Section 354, IPC is made out against the accused-appellant, then, quantum of fine be raised.

5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.

6. So far as the fact that PW-2 Mukhtyaro (prosecutrix) was a patient of mental retardation on the date of occurrence is concerned, there is no dispute on this point and because of this reason, she has not been examined in Court and, thus, there is no evidence of the prosecutrix herself to support the findings of conviction of rape.

7. So far as the medical evidence is concerned, PW-6 Dr. Rajendra Kumar has clearly stated in his statement that no definite opinion regarding rape on PW-2 Mukhtyaro can be given for want of FSL report and FSL report has not been produced in the present case. There is no dispute on the point that PW-2 Mukhtyaro was having no injury on her private part when she was got medically examined and she was a married woman.

8. PW-1 Indo Bai, who lodged the oral report Ex. P/1 on 10-1-1981, has stated that she was informed by PW-2 Mukhtyaro that accused-appellant has committed rape on her, but she has admitted in her cross-examination that at that time she did not find her clothes torn up. She has further stated that PW-2 Mukhtyaro is an innocent girl and her mental power is very weak.

9. PW-3 Shishuguddi is the sister of PW-2 Mukhtyaro and daughter of PW-1 Indo Bai and she states that when she came from the field, she saw accused-appellant committing rape on PW-2 Mukhtyaro and when she made hue and cry, her aunty Mst. Kako and PW-4 Chandu Ram also came there and accused-appellant ran away.

10. PW-4 Chandu Ram also admits this fact that he saw the accused-appellant running from the scene.

11. PW-5 Kartar Singh is another witness, who states that he was told by PW-3 Shishuguddi that accused-appellant teased PW-2 Mukhtyaro and, thereafter, he went inside the house and asked PW2 Mukhtyaro as to what has happened and upon this, she told him that accused-appellant has committed intercourse with her.

12. Looking to the above evidence on record and especially looking to the facts that PW-2 Mukhtyaro (prosecutrix) has not been examined in the Court; she was patient of mental retardation on the date of incident; she was married woman; she did not receive any injury on private part or other parts of her body; her clothes were not torn up; there is no actual evidence proving that sexual intercourse in actual terms has taken place with her by accused-appellant; there is statement of PW-5 Kartar Singh that he was told by PW-3 Shishuguddi that accused-appellant teased PW-2 Mukhtyaro, the case of the prosecution cannot travel beyond the offence under Section 354, IPC, as the prosecution has proved that accused-appellant used the criminal force on PW-2 Mukhtyaro with an intention to outrage her modesty and thus, the findings of the learned Sessions Judge convicting accused-appellant for the offence under Section 376, IPC cannot be maintained and accused-appellant is liable to be convicted under Section 354, IPC instead of 376, IPC.

13. So far as the conviction of accused-appellant for the offence under Section 450, IPC is concerned, the findings of the learned Sessions Judge in this respect are maintained.

14. Since the accused-appellant is going to be convicted under Section 354, IPC instead of 376, IPC, the argument of the learned counsel for the accused-appellant that he may be sentenced to the period already undergone becomes relevant.

15. As per the report on the back of the warrant, accused-appellant has been in PC and JC from 16-1-1981 to 30-1-1981 and apart from this, as per the order sheet of this Court dated 7-4-2000, it appears that accused-appellant was sent to jail and he was ordered to be released on his furnishing personal bond of Rs. 2000/- and two sureties in the like amount, but he has not furnished the same so far. Thus, he has been in jail since 7-4-2000. In my considered opinion, for the offence under Sections 354 and 450, IPC, the period which he has already undergone would be sufficient sentence to meet the ends of justice and thus, he should be sentenced to the period already undergone by him for the said offences.

16. In the result, the appeal filed by the accused-appellant Bali alias Bahal Singh is partly allowed. The conviction of the accused-appellant is altered from 376, IPC to 354, I.P.C and he is accordingly convicted under Section 354, IPC in place of 376, IPC. However, his conviction under Section 450, IPC is maintained. For the offence under Sections 354 and 450 IPC, the accused-appellant is sentenced to the period already undergone by him. The judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar stand modified accordingly.

Since the accused-appellant Bali alias Bahal Singh is in jail, he be released forthwith, if not required in any other case.