- (1.) THIS is an appeal by Kamji against the judgment of the Additional Sessions Judge, Banswara, dated the 19th of May, 1962, whereby he has been convicted under sec. 354 Indian Penal Code and sentenced to six months' rigours imprisonment.
(2.) THE case for the prosecution was that the husband of Mst. Sukhi was working as a labour in manganese mines at Kala Khunta. On the 4th of September, 1961, Mst. Sukhi took the food to the mines for her husband Bhura but when she reached there she found that on account of drizzling it was declared a holiday and her husband had already left for his village. When she was coming back to her village, the accused caught hold of her in the jungle on the main road and tried to take her to a nearby pit in order to commit rape on her. She resisted this action of the appellant and while offering that resistance the contents of the earthen pot in which she was carrying some liquid food for her husband fell down and also the 'chapaties' scattered on the road. She was dragged to a nearby pit and there accused Kamji tried to commit rape on Mst. Sukhi. She raised a cry which attracted Dita (PW/5) and Jeta (PW/6) who were working in the nearby fields. When Dita and Jeta reached the spot of occurrence Kamji ran away from that place. Information was sent to the husband of Mst. Sukhi who came to the spot and took her away to his house in the village. Next day at 6 p. m. an information was lodged with the police. After investigation a challan was put up under sec. 376 Indian Penal Code and the accused was committed for trial to the court of the Additional Sessions Judge, Banswara. After holding trial, the learned Additional Sessions Judge found that the story put forth by the complainant Mst. Sukhi was an exaggerated one. THE learned Additional Sessions Judge did not rely on the statements of the eye-witnesses Dita (P. W. 5) and Jeta (P. W. 6) in respect of the story of committing rape on Mst. Sukhi and therefore acquitted the accused for an offence under sec. 376 Indian Penal Code, but found that the accused was guilty of indecent assault on Mst. Sukhi to outrage her modesty and convicted him under sec. 354 Indian Penal Code. It is against this judgment that the present appeal has been filed in this Court. Learned counsel for the appellant urged before me that the learned Additional Sessions Judge has erred in putting reliance on the statements of Mst. Sukhi and the other two eye-witnesses Dita (P. W. 5) and Jeta (P. W. 6) in respect of the assault made by the accused on the complainant. While holding that these two eye-witnesses have improved upon their previous statements recorded in the court of the committing Magistrate, the learned lower court should have discarded their testimony in toto and the accused should have been acquitted also for a charge under sec. 354 Indian Penal Code. It was further submitted by the learned counsel for the appellant that the first information report was lodged after a considerable delay which casts suspicion on the story of the prosecution. It was also submitted that the investigating officer failed to recover the pieces of the bangles from the spot of occurrence which throws a great doubt on the veracity of the statement of Mst. Sukhi, and the medical evidence also did not lend any support to the prosecution case as the doctor was of opinion that looking to the physique of the accused, commission of rape was not possible. Learned Deputy Government Advocate supported the judgment of the learned Additional Sessions Judge, and while admitting that it was really a dereliction of duty on the part of the investigating officer that he did not take in possession the pieces of glass bangles which were found on the spot as is evident from the perusal of the site inspection report, it is stated that this circumstance does not belie the entire story of the prosecution. He, however, vehemently urged that the injuries found on the body of Mst. Sukhi and the accused corroborate the testimony of Mst. Sukhi and the accused cannot escape punishment under sec. 354 Indian Penal Code. I perused the statements of Mst. Sukhi (PW 1) and other two eye witnesses. No doubt Dita (PW 5) and Jeta (PW 6) tried to improve their statements in the Sessions Court, but that improvement has not been relied upon by the learned Additional Sessions Judge, and it was on the basis of discarding the improved part of the story that the learned Additional Sessions Judge did not think it advisable to convict the accused under sec. 376 Indian Penal Code. I also feel that the learned Additional Sessions Judge acted rightly in disbelieving that part of the statements of these witnesses which they tried to improve in the trial court. But the consistency of their statements, which is found right from the very beginning up to the time when they were examined before the learned Additional Sessions Judge regarding the presence of the accused at the spot of occurrence when Mst. Sukhi raised a cry, cannot be discarded. The version of Mst. Sukhi's story about her being dragged to the pit nearby the road cannot be disbelieved as it "finds corroboration from the statement of Dr. Tej Bahadur (PW 4 ). It is established from the medical testimony that Mst. Sukhi had two scratches on her buttocks and accused Kamji had the three following injuries on his body which are recorded by the doctor in his injury report (Ex. P 4) as follows - (1) Healed abrasion marks 1/2" x 1/16" on middle of right forearm. (2) Healed abrasion marks 3/4" x 1/24" and 3/4" x 1/20" vertical along minor margin of right hand. (3) Healed abrasion 1/4" x 1 /30" behind lower part of left ear. The injuries which were found on the bodies of Mst. Sukhi and the accused go to establish the truthfulness of the statement of Mst. Sukhi to prove that she was dragged from the roadside to the pit where she was made to lie flat facing the sky. It was perhaps on account of the presence of these two eye witnesses, Dita (P/w5) and Jeta (PW/6), who reached the spot, that the accused could not fulfil his nefarious design of committing rape on the complainant. The site inspection report (Ex. P. 2) makes a mention of the fact that the pieces of the glass bangles were found to be present on the spot when the inspection was made by the investigating officer in presence of Mst. Sukhi. The articles of meals were also seen by the investigating officer scattered on the road at the spot of occurrence. Contents of the site inspection report (Ex. P. 2) have been proved by the statements on oath of Shabbir Mohammad (PW/8) and Dhulia (PW/3 ). The fact that the investigating officer did not take into possession the pieces of glass bangles and the scattered 'chapaties' does not throw any doubt on the correctness of the prosecution story to the extent to which it is believed by the learned Additional Sessions Judge. The delay in lodging the first information report also does not create any suspicion about the veracity of the statement of Mst. Sukhi as the explanation given by her for the delay is quite convincing. From the perusal of all the statements of the prosecution witnesses, I am of the opinion that it has been established, beyond any manner of doubt, by the prosecution that the accused did commit assault on Mst. Sukhi with an intention to commit rape on her and he has been, therefore, rightly convicted by the learned Additional Sessions Judge under sec. 354 IPC Learned counsel for the appellant, at the end of his arguments, urged that the provisions of sec. 6 of the Probation of Offenders Act, 1958 are attracted to this case. His contention is that from the medical report it is established that the age of the accused is below 20 and as such it was the duty of the court to have recorded the reasons for awarding a sentence to the accused which was not done and thereby ignored the provisions of sec. 6 of the said Act. The learned Deputy Government Advocate in reply submitted that the question of the application of sec. 6 of the Probation of Offenders Act was never raised by the accused before the learned Addl. Sessions Judge, and if this prayer had been made in the lower court, then it would have afforded an opportunity to the prosecution to show that the accused was not entitled to receive the benefit under this Act as the age of the accused as entered in Ex. P. 4 by the doctor is not a conclusive evidence of the fact that he is below 20. It was further urged that the question of age was never in issue and, therefore, whatever the age has been recorded in Ex. P. 4 cannot be taken as the basis for applying the provisions of sec. 6 of the Probation of Offenders Act. My attention has been drawn by the learned counsel for the appellant that the entry about the age of the accused by the doctor in his injury report Ex. P. 4 is made after thorough examination of the accused and taking his X-ray plate etc. The accused has also disclosed his age as 15 years in his statement before the learned Additional Sessions Judge in this case, and as 18 years in his statement before the court of the Sub-divisional Magistrate, Kushalgarh, who took the committal Proceedings. From the above referred entries about the age of the accused at various places, it is not difficult to ascertain the age of Kamji accused, but age alone should not be the guiding factor for the application of section 6 of the Probation of Offenders Act. It is laid down in the section itself that while giving benefit to the accused of the provision of the section the court must keep in view the nature and the circumstances of the case. In the instant case, the accused, a young man of about 20 years, has assaulted a lonely lady in the jungle with a view to commit rape, and he would have succeeded in his designs if at that time the cry of the lady had not attracted Dita (PW/5) and Jeta (PW/6) to the spot of occurrence. The commission of this offence was the result of preplanning. It is an offence of a serious nature against the society, and if such offenders go unpunished then it would end to increase the offence of such a nature exposing the women-folk to the vagaries of the outrageous actions of reckless and unscrupulous members of the society. I am of the opinion that the circumstances of the case are not such as to permit me to give benefit of the provisions of sec. 6 of the Probation of Offenders Act to the accused. The appeal is, therefore, dismissed. The District Magistrate, Banswara, would cause the accused to be arrested and send him to jail to undergo the punishment awarded to him. . ;