- (1.) HON'ble GARG, J.-This appeal has been filed by the accused appellant against the judgment and order dated 6. 11. 2001 passed by the learned Sessions Judge, Udaipur in Sessions Case No. 335/2000 by which he convicted the accused appellant for the offence under section 376 (1) and 379 IPC and sentenced him in the following manner:- Name of accused appellant Convicted under section Sentence awarded Raju @ Rajkumar @ Rajesh Joshi 376 (1) IPc RI for 10 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo 2 months RI. 379 IPc RI for one year and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo 2 months RI. Both the substantive sentence were ordered to run concurrently.
(2.) IT arises in the following circumstances:- On 30. 10. 2000 at about 9. 00 PM, PW 1 Rose Sallent Aguilera, a spanish girl (hereinafter referred to as the prosecutrix) lodged a written report Ex. P/1 in the Mahila Police Station, Udaipur before PW 9 Amar Kanth, SHO of that Police Station stating inter- alia that she was lost in the park and one door was closed and one Indian boy asked her for a cigarette, which she gave to him and she requested him to make available the gate so that she could go outside, but that boy caughthold her and threw her in the forest and upon this, she cried for help, but since nobody was there in the park, therefore, nobody came to help her and that boy did not allow her to say and thing. IT was further stated in the report that thereafter, that boy broke her shirt, pent and all wears and had sex with her. IT was further stated in the report that she tried to relieve herself from the clutches of that boy, but he continuously caughthold her and after having sex with her, he asked her to wait for ten minutes and thereafter, he ran away. IT was further stated in the report that thereafter, she went near the temple where she saw some light and since her clothes and bag were not in the park, therefore, she went there in a naked condition where one lady gave clothes to her. In that report ex. P/1, the description of that boy, who had committed rape with her, was also given stating that the said boy was aged about 20-26 years and his height was not much and he was having strong complexion and he was wearing trousers and shirt. IT was further stated in the report Ex. P/1 that the said boy was so strong that he threw her every moment more inside in the forest and caughthold her very strongly and forcibly did sex with her including penetration. On this report, PW9 Amarkanth registered the case for the offence under Sec. 376 IPC and chalked out regular FIR Ex. P/7 and started investigation and thereafter, the investigation was handed over to PW 10 Dharmendra Singh, Dy. SP. During investigation, PW 5 Fateh Singh stated before the police that the accused appellant had committed rape with the prosecutrix PW 1 Rosa Sallent Aguilera and therefore, on that information, further investigation was started. During the course of investigation, the prosecutrix PW1 Rosa Sallent Aguilera was not medically examined on the same day on 30. 10. 2000 at 11. 00 PM by PW 11 Dr. G. L. Dad for the purpose of ascertaining whether rape was committed with her or not and her injury report is Ex. P/2. The site plan Ex. P/3 was got prepared by PW 10 Dharmendra Singh in presence of PW 2 Venu Goswami and Suraj Sharan and on the site through fard Ex. P/4, T-shirt, paiyaja and penties belonging to the prosecutrix were also seized by PW 10 Dharmendra in presence of PW 2 Venu Goswami and Suraj Sharan. During investigation, On 31. 10. 2000, the prosecutrix PW 1 Rosa Sallent Aguilera produced her clothes (Chunni, Kurta and salwar) before PW 10 Dharmendra Singh and the same were seized by PW 10 Dharmendra Singh through fard Ex. P/8 in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav and that kurta was found stained with blood and semen. The further case of the prosecution is that on 31. 10. 2000 at about 4. 05 PM, the accused appellant was got arrested by PW 10 Dharmendra Singh through arrest memo Ex. P/9 in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav and in that arrest memo Ex. P/9, it was mentioned that the accused appellant was kept baparda. The accused appellant was also got medically examined by PW 12 Dr. Anis Ahmad and his injury report is Ex. P/23, which shows two injuries on his person. The further case of the prosecution is that through fard Ex. P/10, PW 10 Dharmendra Singh seized the underwear of the accused appellant in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav, and that underwear and also having spots of semen. Through fard Ex. P/11, the accused appellant in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav pointed out the place of occurrence to PW 10 Dharmendra Singh. The further case of the prosecution is that the accused appellant gave information Ex. P/18 to PW 10 appellant gave information Ex. P/18 to PW 10 Dharmendra Singh to the effect that he could get recovered a bag belonging to the prosecutrix and in consequence of that information Ex. P/18, a bag was got recovered through fard Ex. P/12 by PW 10 Dharmendra Singh in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav. The further case of the prosecution is that during investigation, identification parade was also got conducted in jail by PW 8 Rajeev Bijlani, judicial Magistrate (North), Udaipur and in the identification parade, the prosecutrix PW1 Rosa Sallent Aguilera identified the accused appellant as the man, who committed rape with her and that identification parade memo is Ex. P/5. At the time of identification parade, 10 persons were included and the name of these ten persons are shown in the fard Ex. P/17. The further case of the prosecution is that the bag, which was got recovered at the instance of the accused appellant through fard Ex. P/12, was also identified by the prosecutrix PW 1 Rosa Sallent Aguilera in presence of PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur and that identification memo is Ex. P/6. After usual investigation, police submitted challan for the offence under sections 376 and 379 I (PC against the accused appellant in the Court of Magistrate and from where, the case was committed to the Court of Session. On 4. 11. 2000, the learned Sessions Judge, Udaipur framed the charges for the offence under section 376 (1) and 379 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution got examined as many as 13 witnesses and exhibited several documents. Thereafter, the statement of the accused appellant under section 313 Cr. P. C. was recorded in which he has stated that he has been falsely implicated by the police. In defence, no evidence was led by the accused appellant. After conclusion of trial, the learned Sessions Judge, Udaipur through judgment and order dated 6. 11. 2001 convicted the accused appellant for the offence under Section 376 (1) and 379 IPC and sentenced him in the manner as stated above holding inter-alia:- (i) That so far as the point of rape with the prosecutrix PW 1 Rosa Sallent Aguilera is concerned, there was no dispute on that point as that fact is very well established by her statement and her injury report Ex. P/2 and the learned counsel appearing for the accused during trial had also conceded that fact. (ii) That on point whether the rape was committed by the accused appellant with the prosecutrix or not,t he learned trial Judge placing reliance on identification evidence, which is found in the statement of PW 8 Rajeev, Bijlani, Judicial Magistrate (North), Udaipur, recovery of bag etc. and the statement of the prosecutrix PW 1 Rosa Sallent Aguilera came to the conclusion that the accused appellant was the person who committed rape with the prosecutrix PW 1 Rosa Sallent Aguilera and thus, the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under sections 376 (1) and 379 IPC. Aggrieved from the said judgment and order dated 6. 11. 2001 passed by the learned Sessions Judge, Udaipur, this appeal has been filed by the accused appellant. During the course of arguments,t he learned counsel for the accused appellant has submitted that the commission of offence of rape with the prosecutrix PW 1 Rosa Sallent Aguilera is not in dispute and he has not pressed this point, but he has raised the issue that the prosecution has not been able to prove the identity of the same, who committed rape with her and for that, he has raised the following submissions:- (i) That the sole evidence, which led the investigation towards accused appellant, was the statement of PW 5 Fateh Singh, before whom it was alleged that the accused appellant made extra- judicial confession, but he has been declared hostile and therefore, the findings of the learned trial Judge that it was the accused appellant, who committed rape with the prosecutrix PW 1 Rosa Sallent Aguilera are wholly erroneous one. (ii) That the findings of guilt arrived at by the learned trial Judge against the accused appellant are solely based on the evidence of identification of the accused appellant by the prosecutrix PW 1 Rosa Sallent Aguilera on 2. 11. 2000 before PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur, but that identification evidence should be treated as Nil in the present case as there is ample evidence on record that the accused appellant was not kept in parda and was shown to the prosecutrix before identification parade was held and thus, no reliance should have been placed by the learned trial Judge on identification evidence and when this evidence is excluded, there remains no evidence against the accused appellant and hence, he is entitled to acquittal. (iii) That another evidence, which has been relied upon by the learned trial Judge, is that of recovery of bag at the instance of the accused appellant, but that evidence is also of no value as the prosecutrix and other witnesses have stated that the bag was found at the site and it was not recovered at the instance of the accused appellant. Therefore, in this case, there is no evidence connecting with the accused appellant with the commission of crime. Hence, he is entitled to acquittal. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Udaipur. I have heard the learned counsel appearing for the accused appellant and the learned Public Prosecutor and gone through the record of the case. Before proceeding further, first medical evidence of this case has to be seen.
(3.) PW 11 Dr. G. L. Dad has stated in his statement recorded in Court that on 30. 10. 2000 he was Medical Jurist in M. B. Hospital, Udaipur and on that day, he medically examined prosecutrix PW 1 Rosa Sallent Aguilera and found the following injuries on her person:- (1) Lacerated wound 1x0. 25 cm x skin deep at posterior vaginal wall. Fresh bleeding present. (2) Bruise 2x2cm right thing upper half medial side. (3) Abrasion 1x0. 75 cam at neeple of left side breast. (4) Abrasions 2 in no. linear shaped 6x1/8cm on left side chest lower part going to lumber region. (5) Multiple tiny abrasions and bruises of varying size 1x0. 25 to 3x0. 5 c m on left side chest back. (6) Multiple tiny abrasions of varying size 1x0. 25 to 2x0. 5 cm on back of chest right side. (7) Abrasion right knee 1x1 cm. (8) Abrasions 2 in no. each 0. 5x0. 5 cm medical side left ankle. (9) Rub abrasion 3x1cm right leg upper and leteral side. (10) Abrasions 3 in no. Right thing 1x1/4 cm size each approx. (11) Abrasions 3 in no. 3x1/4 cm each approx. Left of lateral region. (12) Abrasion 1x1 cm left elbow. He has further stated that there was evidence of recent penetration in the vagina of the prosecutrix. He has proved her injury report Ex. P/2. Thus, from the statement of PW 11 Dr. G. L. Dad, it is clear that the prosecutrix PW 1 Rosa Sallent Aguilera received as many as 12 injuries in her person and she received injuries not only on private part but also on other parts of her body. Before proceeding further, injuries of the accused appellant may also be mentioned here. ;