SUNIL KUMAR GARG - (1.) This appeal has been preferred by the accused-appellant against the judgment and order dated 15-1-1999 passed by the learned Sessions Judge, Udaipur in Sessions Case No. 327/98 by which he convicted the accused-appellant for the offence under S. 376, IPC and sentenced him to undergo seven years' rigorous imprisonment and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo one year RI.
(2.) It arises in the following circumstances :- On 18-9-1998 at about 12-05 PM, PW-1 Dhanji lodged a report Ex. P/1 before PW-7 Bheru Singh, SHO, Police Station Dhariyawad, District Udaipur stating inter-alia that on 17-9-1998 at about 5-00 p.m., his daughter Shambhudi P.W. 2 (hereinafter referred to as the prosecutrix) had gone to cut grass in the field of lohar, where accused-appellant came and forcibly caught hold her and tried to commit rape on her after beating her and when she made hue and cry, PW-3 Shankari came there and she also made hue and cry and, thereafter, accused-appellant ran away from the scene and after that, prosecutrix came to her house and she told the whole story to her mother PW-4 Chokhli. It is further stated in the report that as there was no means of communication, therefore the report could not be lodged on 17-9-1998 and the same was lodged on 18-9-1998. At the time when the report Ex. P/1 was lodged by PW-1 Dhanji, prosecutrix was also with him. On this report, PW-7 Bheru Singh chalked out the FIR Ex. P/2 and started investigation. It may be stated here that on the back of the report Ex. P/1, it is also mentioned that prosecutrix told the police that rape was committed by the accused-appellant with her. During investigation, the prosecutrix was got medically examined in respect of her injuries, age and rape. The injury report of the prosecutrix is Ex. P/5 which shows that she received six injuries. The report about determination of age of the prosecutrix is Ex. P/9, where it is written that her age is nearabout 15 years. The report of Gynecologist is Ex. P/15, where it is written that there is evidence of penetration in the vagina of the prosecutrix. The accused-appellant was arrested by the police through Ex. P/6 on 19-9-1998. After usual investigation, the police submitted challan against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session. The learned Sessions Judge, Udaipur framed charges against the accused-appellant for the offence under S. 376, IPC on 12-11-1998. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During the course of trial, the prosecution examined as many as 12 witnesses and got exhibited many documents. Thereafter, statement of the accused-appellant under S. 313, Cr. P.C. was recorded. No evidence was produced in defence. After conclusion of the trial, the learned Sessions Judge, Udaipur through his judgment and order dated 15-1-1999 found the accused appellant guilty of the charge under S. 376, IPC and accordingly he convicted and sentenced the accused appellant in the manner as stated above. Aggrieved from the said judgment and order dated 15-1-1999 passed by the learned Sessions Judge, Udaipur, the present appeal has been filed by the accused-appellant.
(3.) In this appeal, the following submissions have been raised by the learned counsel for the accused-appellant :- 1. That as per the highest case of the prosecution put forward in the FIR, it was the case of molestation and not that of rape and, therefore, the learned Sessions Judge has committed mistake in convicting the accused-appellant for the offence under S. 376, IPC and the case of rape has been improved by the prosecution. 2. That whereas in the first medical examination of the prosecutrix, the doctor opined that there were finger nail marks on the body of the prosecutrix, on the other hand, subsequently when she was examined by the Gynaecologist, no marks of injuries have been alleged on her body, which shows that prosecution has concocted a case out of nothing. 3. That false report was lodged by PW-1 Dhanji because of personal dispute with the accused-appellant. Hence, it is prayed that this appeal be allowed and accused-appellant be acquitted of the charge under S. 376, IPC. ;