M. C. JAIN, J. - (1.) THE respondent Jeeya was tried for offences under Sec. 376 and 323, I. P. C. , by the Assistant Sessions Judge, Balotra, who by his judgement dated December 15, 1973, acquitted him of the said offences.
(2.) BRIEFLY, the prosecution case is that on 4. 3. 1973 at about noon Mst. Teejan, aged about 28 years went in the company of Bhana Ram (P. W. 2), aged 12 years, Annu (P. W. 3), aged 13 years, Mst. Meeran (P. W. 4), aged 13 years, Dalla (P. W. 5), aged 15 years, in the field of Bhatis for collecting wood. Thereafter they went to the field of Ukka Kumhar. It is alleged that the accused Jeeya armed with a Kulhari came there and started hurling abuses as to why they were collecting wood. He broke the stick from Fogada tree and threatened the children, where by they ran away. Thereafter he caught hold of Mst. Teejan pulled her near him and inflicted a blow with the handle of Kulhari on her left thigh and thereafter took her in a pit and committed rape upon her and after commission of the rape he threatened her not to divulge anything to any one. Mst. Teejan went to the Dhani of Mukna and narrated the occurrence to Muk-na's wife Jethi (DW. 1) and Mukna's mother Sargati (P. W. 9 ). From there she came to her Dhani and narrated the occurrence to her mother-in-law Saran and aunt-in-law Jamna. Her husband was not at the house. The children came to the house and informed Gokla. Gokla visited the house of Mukna and as Teejan's husband Dungara was not at the house, so Gokla went to inform Dun-gara. Next morning Dungara came to the village. The matter was reported to the Mukhiyas of the village and according to Dungara, the father of the accused, namely, Tikam made efforts for compromise, but there-after Dungara, accompanied with his wife Mst Teejan visited the Police Station, Shingdri, on 6. 3. 197. 5 and lodged the report at 12. 30, p. m. On the report lodged by Mst. Teejan, case under Sec. 376, I P. C. , was registered by the S. H. O. Mohan Singh (PW 12 ). On production by Teejan, her Ghagra was seized vide memo Ex. P/2. The broken bangles were also produced by her, which were seized vide memo Ex. P/3. The S. H. O. visited the spot and conducted the spot investigation. At the instance of Mst. Teejan he prepared the site notes (Ex. P/4) and site plan (Ex. P/5 ). The accused was arrested on 10th March, 1973. As stains were found on the Dhoti, the Dhoti was packed and sealed. On the information and at the instance of the accused, the Kulhari was also recovered. The information memo is Ex. P/7 and the recovery memo is Ex. P/8. Both Mst Teejan and accused Jeeya, were medically examined. Two contusions on both the thighs were found on the person of Mst. Teejan. Her vaginal swab was also taken for chemical examination As stains were found on the pubic hair of Mst. Teejan, their cuttings were also taken for chemical examination. Ghaghra, cutting of pubic hair, and the vaginal swab of the prosecutrix and the Dhoti of the accused were sent for chemical examination. On examination it was found that human semen was detected on Ghaghra and Dhoti, but no human semen was detected on the two sides of vaginal swab and pubic hair. The quantity of human semen was considered to be too small to be forwarded to the Serologist for serological examination. Investigation was conducted from the witnesses. After completion of the investigation charge-sheet was presented against the accused, who was ultimately tried by the Assistant Sessions Judge, Balotra. Charges under Section 376 and 323, I. P. C. , were read over to the accused. The accused, however pleaded not guilty to the charges and claimed to be tried. In support of its case, the prosecution examined P. W. 1 Hem Singh, P. W. 2 Bhana Ram, P. W. 3 Mst. Annu, P. W. 4 Mst. Meeran, P. W. 5 Dalla, P. W. 6 Mst. Teejan, P. W. 7 Gokla, P. W. 8 Doongara, P. W. 9 Mst. Sargati, P. W. 10 Ramlal, P. W. 11, Sukhveer Singh Gehlot, P. W. 12 Mohan Singh and P. W. 13 Dr. Mohanlal Dhariwal. The statement of the accused was recorded under Sec. 313 Cr. P. C. , in which he denied the prosecution case and stated that his father had advanced a loan of Rs. 4,000/- to Bhagga, the father-in law of Mst. Teejan and 4 Maunds of Bajri was also given in loan, but when their return was demanded, he refused and foisted a false case against him. He further stated that Teejan's Deorani was given in Nata by her parents. His father and Kama did not allow making of any payment to the father-in-law of Teejan after holding a Panchayat, so this was also the cause of enmity. In defence the accused examined D. W. 1 Mst Jethi, D. W. 2 Ukka, D. W. 3 Adu and D. W. 4 Tikma. The learned Assistant Sessions Judge did not believe the evidence of Mst. Teejan, as Mst. Teejan's statement did not find corroboration from the testimony of Bhana, Dalla, Annu, Meeran and Mst. Sargati the mother of Mukna. However, corroboration was not available from the chemical examination of vaginal swab and pubic hair. The uncorroborated testimony of Mst. Teejan was not relied upon. Consequently, it was observed that the prosecution has not been able to establish the guilt of the accused beyond all reasonable doubt and as such he acquitted the respondent. Hence this appeal by the State. We have heard the learned Public Prosecutor, Shri Niyazuddin Khan, for the State and Shri J. M. Bhandari, learned counsel for the accused-respondent and we have perused the record of the case. The learned Public Prosecutor for the State submitted that the case against the respondent Jeeya, is well proved from the testimony of Mst. Teejan, whose testimony to some extent, gets corroboration from the statements of Bhanaram (P. W. 2), Annu (PW. 3), Mst. Meeran (P. W. 4) and Dalla (P. W. 5), who happened to be in the company of Mst. Teejan and engaged with her in collecting the wood. Mst Teejan's statement further gets corroboration from the medical evidence, in as much as, from the evidence of Mst. Teejan it has been found that she has two contusions on her both the thighs and further corroboration is available from this circumstantial evidence that the Ghaghra and Dhoti of the accused were found stained with human semen. Mr. Niyazuddin Khan urged that the learned Sessions Judge fell in error, when he observed that necessary corroboration is not forth coming from the statement of P. W. 2 Bhana Ram, P. W. 3 Mst. Annu, P. W. 4 Mst Meeran and P. W. 5 Dalla with regard to the act of rape and further corroboration is not forth coming from the statement of Mst. Sargati (P. W. 9), whom the occurrence is said to have been narrated by Mst. Teejan soon after she was relieved by the accused. He pointed out that it is true that the first four witnesses have not deposed as to what the accused actually did with Mst. Teejan after he sat on her. It may be that the witnesses may not have seen the actual act and may have left the place. But these witnesses do prove the prosecution story to the extent that the accused caught hold of Mst. Teejan of her hand and then pulled her and threw her in a pit and sat on her. Mst. Sargati, no doubt, has not supported the prosecution case that Mst. Teejan immediately after the occurrence narrated what happened with her to Mst. Sargati. Mst. Sargati had turned hostile. Non-corrobora-tion by Mst. Sargati, according to Mr. Khan, is immaterial in view of the fact that the matter was immediately reported by Mst. Teejan at the house and in consequence there of the elder brother of Doongara. P. W. 7 Gokla left for informing Doongara (P. W. 8), the husband of the prosecutrix. Mr. Khan also submitted that the delay in lodging the first information report has been satisfactorily explained. According to the statement of Doongara (P. W. 8), Tikma, the father of the accused, initiated negotiation for compromise and on that account the report could not be lodged earlier. The learned Assistant Sessions Judge erred in placing reliance on the circumstance of delayed report in not believing the prosecution story. The learned counsel for the accused-respondent, on the other hand, supported the judgment of the learned trial judge and submitted that there is solitary uncorroborated statement of Mst. Teejan, so far as the offence under Sec. 376, I. P. C, is concerned. In the circumstances of the case, according to Mst. Bhandari, in the absence of corroborative evidence, it was unsafe to place implicit reliance on the statement of Mst. Teejan. The circumstance of presence of human semen on the clothes of the accused and the prosecutrix, is immaterial. Vaginal swab and cuttings of pubic hair were also sent for chemical examination and the report of the chemical examiner is in the negative and no human semen was detected on the two sides of the vaginal swab and pubic hair. Besides that, the prosecution has withheld the material witnesses in the case. Saran, the mother-in-law of the prosecutrix, Jamna, the aunt-in-law of the prosecutrix and Magna Bhambi, have not been examined. Smt. Sargati has not supported the prosecution. Adu Rebari, who is said to be present engaged in grazing herd of goats and sheeps, has been examined in defence as D. W. 3 and Jethi, the wife of Mukna, to whom the occurrence is said to have narrated along with Mst. Sargati, has appeared in the witness box as D. W. 1. It was also urged by Mr. Bhandari that the evidence of the four witnesses from P. W. 2 to P. W. 5 has rightly been not considered by the learned Assistant Sessions Judge for establishing the offence under Sec. 376, IPC, as those witnesses have not stated beyond the fact that the accused sat on the prosecutrix. Mr. Bhandari also pointed out that the view of the evidence which has been taken by the learned Assistant Sessions Judge, cannot be taken to be an unreasonable view of the evidence and so the finding recorded by the learned Sessions Judge, should not be interfered in this appeal against acquittal. We have considered the above rival submissions of the learned counsel for the parties. The circumstances, which appear in the evidence in the case, to some extent go to establish the version as to rape, given by Mst. Teejan. Mst. Teejan was given blows on her thighs, which get corroboration not only from the medical evidence but also from the ocular evidence consisting of P. W. 3 Mst. Annu. Further, the 4 witnesses have stated that the accused threw Mst. Teejan on the ground after pulling her behind the Kane, that is the boundary wall, and that the accused sat on her. Mst. Teejan has stated that despite resistance having been put by her, the accused committed rape on her. What the accused did after sitting on the prosecutrix, whether could be seen by PW. 2 to PW5? Whether they left the scene of occurrence immediately after observing that the accused had sat on Mst Teejan ? It has come in the evidence of the four witnesses P. W. 2 to P. W. 5 and also in the statement of Mst. Teejan that the two boys had already climbed the sand-dune and thereafter the two girls also followed them. It would appear that from the sand dune, the place where the prosecutrix was put on the ground, could be seen. The ages of these four witnesses range from 12 to 15. In our opinion, if the accused had done something beyond sitting on the prosecutrix, these witnesses would have seen the same and would have stated so in their statements. Thus, from these four witnesses, who are sufficiently grown up in age and who possibly have the sense of sexual act, have not supported the prosecutrix as to what actually the accused did with the prosecutrix after sitting on her. The statement of Mst. Teejan further does not get corroboration, whatsoever, from any witnesses that she narrated the occurrence to any one. As already stated, Mst. Sargati has not supported the prosecution. Jethi has appear-as a witness in defence and the mother-in-law and aunt-in-law of prose-cutrix have not been examined. Even Doongara has not stated as to what Teejan told him. He has simply stated that he made enquiries from his wife when he came to his house on the next day morning. Gokla is the elder brother of Doongara. He has deposed that the aforesaid four witnesses told him that the accused had abused Teejan and had pulled by her hand and took her behind the Dol and sat on her. Thereupon Gokla went to the Dhani of Mukna and Teejan then narrated the occurrence to his Masi and Kaki, who may be perhaps Sargati and Jethi. Thereafter he went to fetch his brother Doongara. Thus, Gokla too has not stated that anything was revealed to him and what he states is that the occurrence was narrated by Teejan to his Masi and Kaki. Thus, there is no corroborative evidence lending assurance to the truthfulness of the statement of Mst. Teejan. The presence of semen stains on the clothes of the accused as well as of the prosecutrix, in our opinion, is inconsequential. From the presence of semen stains, it cannot be necessarily found that the semen stains were as a result of discharge, while committing rape. As regards the presence of human semen on the clothes, the statement of Mst. Teejan herself is very material. In cross-examination she stated that whether semen was discharged or not, she cannot say. Thus, the existence of semen stains on the clothes, if viewed in the light of Mst. Teejan's statement, then, that circumstance, in our opinion, is not a pointer of the fact that any sexual intercourse was committed by the accused with Mst. Teejan, althought. Mst. Teejan has stated that the accused continued to have intercourse with her for about an hour. These two statements, in our opinion run counter, to each other, which renders the statement of Mst. Teejan untruthful. As already stated the circumstance of negative report of the Chemical Examiner regarding slides and pubic hair, further does not advance the case of the prosecution. Rather that circumstance goes in favour of the accused. Thus, in the circumstances of the case, it cannot be said that the view taken by the learned Assistant Sessions Judge with regard to the offence under Sec. 373, I. P. C. , was an unreasonable view. We would have connected the circumstance of sustaining of blows by the prosecutrix with the commission of the offence of rape, but as credible evidence is not available, so this circumstance is a circumstance independent of that offence and has to be viewed separately and independently.
(3.) WE are, therefore, of the opinion that so far as the offence under Sec. 376, I. P. C. , is concerned, it has not been brought home to the accused beyond all reasonable doubt. But as regards offence under Sec. 323, I. P. C. is concerned there is sufficient evidence on record, which establishes the offence of voluntary causing hurt beyond ail reasonable doubt. Mst. Teejan has categorically stated that the accused inflicted a blow with the handle of the Kulhari on her left thigh, Mst Annu (P. W. 3)has corroborated the above version of Mst. Teejan and stated that the accused inflicted a blow with the handle of Kulhari on the thigh of Mst. Teejan Dr. Mohanlal Dhariwal (P. W. 13) found two contusions one on the left thigh and the other on the right thigh. The dimension of the left thigh contusion was 4-1/2" x 2-1/2" and that of right thigh was l-1/2 x 1". Thus, from the above evidence, offence under Section 323, I. P. C. is amply proved against the accused. The learned Assistant Sessions Judge has not at all dealt with the question as to whether offence under Sec. 323, I. P. C. is at all made out against the accused or not and simply recorded the acquittal of the accused of the offence under Sec. 323, I. P. C. This view of the learned Assistant Sessions Judge, in our opinion, deserves to be reversed, as the view, is most unreasonable and perverse and such a view, in our opinion, does not at all arises from the evidence on record. We, therefore, hold that the offence under S. 323,. I. P. C , is established against the accused beyond all reasonable doubt and we hold him guilty of the same. In the result, this appeal is partly allowed. The acquittal of the respondent of the offence under Sec. 376, I. P. C, is maintained but his acquittal under Sec. 323, I. P. C. is set aside and he is convicted of the offence under Sec. 323, I. P. C, and is sentenced to a fine of Rs. 400/- (rupees four hundred), in default of payment of fine, to undergo two months simple imprisonment. ;