GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 16. 3. 1991 passed by the learned Addl. Sessions Judge, Chittorgarh in Sessions Case No. 32/90 by which he convicted the accused appellant for the offence u/sec. 376/511 IPC and sentenced him to undergo rigorous imprisonment for three and half years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo three months RI.
(2.) IT arises in the following circumstances:- On 25. 1. 1990 at about 9. 00 PM, PW 5 Moddi (hereinafter referred to as the prosecutrix) accompanied by her father PW 4 Heeralal lodged an oral report Ex. P/8 in the Police Station Beghu District Chittorgarh stating inter-alia that on the evening of that day, when she was returning from the well after taking vegetables to her house, on the way the house of the accused appellant was there and accused appellant was in his house and he called the prosecutrix PW 5 Moddi and on being asked, she went to the house of the accused appellant and when she tried to run away from his house, accused appellant caughthold her and put her on the bad and fell down on her and after opening his dhoti, accused appellant put his penis into her vagina, upon which, she cried, but he did not leave her and committed rape on her. Thereafter, prosecutrix PW 5 Moddi went to her house and told the whole incident to her father PW 4 Heeralal and then, PW 4 Heeralal alongwith prosecutrix PW 5 Moddi, PW 7 Jawaharmal and PW 8 Prithviraj came to report the matter. This report was reduced into writing by PW 9 Bhanwarlal, SHO, Police Station Beghu and, thereafter, he chalked out regular FIR Ex. P/13 and started investigation. During investigation, the prosecutrix PW 5 Moddi was got medically examined and medical evidence about age as well as about commission of rape is Ex. P/1. The accused appellant was arrested on 27. 1. 1990 through Ex. P/14. After usual investigation, police submitted challan against the accused appellant for the offence under Sec. 376 IPC in the Court of Magistrate and from where the case was committed to the Court of Session. On 12. 6. 1990, the learned Addl. Sessions Judge, Chittorgarh framed charge for the offence under Sec. 376 IPC against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Sec. 313 Cr. P. C. was recorded. No evidence in defence was adduced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge, Chittorgarh through his judgment and order dated 16. 3. 1991 came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubts for the offence u/sec. 376 IPC against the accused appellants, but rather the prosecution has proved its case beyond all reasonable doubts for the offence u/sec. 376/511 IPC against the accused appellant and thus, he convicted and sentenced the accused appellant for the said offence in the manner as indicated above. Aggrieved from the said judgment and order dated 16. 3. 1991 passed by the learned Addl. Sessions Judge, Chittorgarh, the accused appellant has preferred this appeal. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant:- (1) That since in the present case, the learned Addl. Sessions Judge has come to the conclusion that no case for the offence u/sec. 376 IPC is made out against the accused appellant, therefore, from the evidence on record, no case for the offence u/sec. 376/511 IPC is made out and the findings of the learned Addl. Sessions Judge as such are erroneous one and furthermore, since there is some erasion in the FIR, it also creates doubt as to the manner when it was lodged and form this point of view also, the accused appellant should be acquitted of the charge under Sec. 376/511 IPC. also. (2) That in case the Court comes to the conclusion that the offence u/sec. 376/511 IPC is proved, the accused appellant may be sentenced to be period already undergone by him. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Chittorgarh. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Before proceeding further, the medical evidence of this case should be discussed here and the same is found in the statement of PW 1 Dr. Madhu Bakshi as well as in the report Ex. P/1.
(3.) PW 1 Dr. Madhu Bakshi has stated in her statement that on 26. 1. 1990 she examined the prosecutrix PW 5 Moddi for the purpose of ascertaining whether rape was committed with her or not as well as for determining her age and found the following symptoms:- 1. That there were no marks of abrasion or laceration over breasts, thigh, face and other parts of body. 2. That on external genitals, laceration 1/2cm x 1. 5 cm over posterior fourchette of vaginal wall was there. 3. That hymen torned and lacerated, congested and clotted blood was present. 4. That on P. V. examination, tenderness on entering vagina with finger present, it does not admit even little finger. 5. That Built-normal. 6. That her breasts were not fully developed. 7. That few pubic hairs and auxillary hairs were present. 8. That vagina admits little finger with difficulty and hymen torned. 9. That wrist joint AP and Lat. Plate No. 42 dated 26. 1. 90 shows non fusion of ephiphyris of lower and of radius and ulna with the shaft. Thus, PW 1 Dr. Madhu Bakshi gave the following opinion:- 1. That there is evidence of entering penis into vagina i. e. intercourse is committed. 2. That the age of the girl prosecutrix PW 5 Moddi is below 17 years, i. e. she is minor. 3. That intercourse is done within 24 hours of examination. From the above evidence, to say that prosecutrix PW 5 Moddi was having no injury on any part of her body is not correct and the argument of the learned counsel for the Accused appellant that since there was no injury on her person, therefore, no case of indecent assault would be found proved, is also incorrect one. PW1 Dr. Madhu Bakshi has clearly stated that there was laceration in the vagina of the prosecutrix and there was injury on her hymen and her hymen was found torned and there was also clots of blood. All there factors are indicative that some forcible object touched her vagina. So far as the age of the prosecutrix PW 5 Moddi is concerned, PW1 Dr. Madhu Bakshi has come to the conclusion that prosecutrix was below 17 years of age. In my opinion, this finding of PW 1 Madhu Bakshi is wrong one. As she found that the breasts were not fully developed, public heir and auxillary heirs were also few and there was non fusion, in these circumstances, in absence of any school certificate or birth certificate, prosecutrix PW 5 Moddi appears to be below 16 years of age on the date of examination, though PW 5 Moddi prosecutrix has herself stated her age as 13 years. Therefore, the finding of Dr. Madhu Bakshi, PW 1 that prosecutrix PW 5 Moddi was below 17 years of age appears to be not correct one, but rather it should be held that prosecutrix PW 5 Moddi was below the age of 16 years in any manner on the date of her examination i. e. on 26. 1. 1990. ;