VYAS, J. - (1.) THE aforesaid appeals are being decided by this common judgment as the both arise out of the same judgment dtd. 5. 12. 2001 passed by the learned Additional Sessions Judge, Nohar whereby he while acquitting the accused Ramji Lal for offence under Section 376 (1) IPC, has convicted him for offence under Sections 354, 323 and 342 IPC.
(2.) BRIEF facts of the case are that on 11. 10. 2001 PW. 5 Nathu Ram lodged a typed report at the Police Station, Bhadra alleging inter alia that on 10. 10. 2000 at about 11. 30 a. m. , his daughter- in-law Smt. Maya Devi (PW. 1) (hereinafter referred to as the prosecutrix) was coming to the house. When she reached in front of house of Ramji Lal, he took the prosecutrix inside his house forcibly and closed the door from inside. He tried to commit forcible intercourse, on which the prosecutrix raised hue and cry. On raising hue and cry by the prosecutrix, the complainant threatened him to kill her by making her to drink poison. On hearing hue and cry, Banwari Lal and Saroj Devi came there. The other neighbourers also collected there and saved the prosecutrix. In this scuffle, the bangles of the prosecutrix broke. He also received abrasions in his hands. On this report, a case under Sections 342, 376/511 and 323 IPC was registered and investigation was commenced. Thereafter on 12. 10. 2000, the prosecutrix submitted another typed report stating inter alia that the accused committed forcible intercourse with her. However, due to fear of society, she did not narrate this incident to anybody. On this report, Section 376 IPC was also added. After investigation, the police filed challan against the appellant for offence under Sections 376 (1), 342 and 323 IPC. At the trial, the prosecution examined as many as 12 witnesses in support of its case and 17 documents were got exhibited. The accused in his statement under Section 313 Cr. P. C. denied the allegation levelled by the prosecution and examined himself in his defence and produced 8 documents in support of his case.
(3.) AT the conclusion of trial, the learned trial Court, vide judgment and order dtd. 5. 12. 2001, while acquitting the accused Ramji Lal for offence under Section 376 (1) IPC convicted him for offences under Sections 354, 323, and 342 IPC. Being aggrieved by his conviction and sentence the accused Ramjilal has preferred the appeal. The state has also preferred the appeal against the acquittal of accused Ramji Lal for offence under Section 376 (1) IPC. In the present case it has been submitted by the learned counsel for the accused Ramji Lal that in the present case the prosecution has made improvements and exaggeration in the versions. In this regard, it has been submitted by the learned counsel for the accused Ramji Lal that initially the report (Ex. P/1) was lodged by the complainant Nathu Lal in which there was no allegation of rape against the accused. At the back of the said which bears the police note, there is signature of the prosecutrix. This fact itself shows that the prosecutrix was also present at the time of lodging of the FIR. However, on the next day the prosecutrix filed another report, in which allegation of rape has been levelled. Therefore, no reliance can be placed on such version. That apart, the story put forward in the second report has not been established beyond reasonable doubt. It has also been submitted by the learned counsel for the accused that there are serious contradictions in the statements of the prosecution recorded under Section 161 Cr. P. C. and the statement recorded under Section 164 Cr. P. C. In the statement under Section 164 Cr. P. C. , the prosecutrix has stated that on hearing hue and cry, Banwari and Saroj came there, whereas in the statement under Section 161 Cr. P. C. , recorded by the police, the prosecutrix has stated that apart from Banwari Lal and Saroj, Gurmail also came at the spot. Even the presence of Gurmail has not been shown in the report Ex. P/1 ). It has also been argued on behalf of the accused that the accused was not medically examined and even the FSL report has not been produced in this case. From the medical evidence as well, it is not established that any forcible intercourse was committed by the accused. The doctor has only opined that there is possibility of rape. No definite opinion has been given by the doctor. Therefore, no offence under Section 376 IPC. is disclosed in the present case. So far as evidence of Gurmail is concerned, no reliance can be placed on his statement as he has not even been named in the initial report (Ex. P/1) as well as in the statement of prosecutrix recorded under Section 164 Cr. P. C. and statement of prosecutrix are not corroborated by medical evidence. It has also been submitted by the learned counsel for the appellant that even accepting the prosecution story to be true at its highest, offence if any cannot travel beyond Section 354 IPC for which he has placed reliance on the following authorities: Ankariya vs. State of M. P. (1991 Cr. L. J. 751) Basudev Naik vs. State (1991 Cr. L. J. 1594) Damodar Behera vs. State of Orissa (1996 Cr. L. J. 346) Aman Kumar vs. State of Haryana (JT 2004 (2) SC 274) ;