JAIN, J. - (1.) ACCUSED-appellant Mangilal S/o Radhakishan has preferred this appeal challenging the order of his conviction, dated 9th of June, 2003, passed by the Additional Sessions Judge (Fast Track) No. 1, Bundi, in Sessions Case No. 85/2001, whereby he has been convicted and sentenced under Section 376 I. P. C. to 7 years rigorous imprisonment and a fine of Rs. 5000/- (Rupees five thousand); in default of payment of fine, to further undergo one month's additional simple imprisonment.
(2.) BRIEFLY stated the facts of the case are that a written- report, Exhibit P-11, was lodged by PW-6 Kalu Lal, the husband of prosecutrix Madi Bai (PW-8) at Police Station Kotwali - Bundi, alleging therein that on 22. 12. 1995, accused Mangilal committed forcible sexual intercourse with his wife. The police registered FIR No. 317/1995 (Exhibit P-12) under Section 376, IPC, and started investigation. After completion of investigation, a chargesheet was filed against the accused. The trial court framed charge against the accused for the offence under Section 376, IPC, which was denied by him and the trial was claimed. The prosecution and the defence, both, produced oral as well as documentary evidence. The trial court, after considering the evidence on the record and upon hearing both the parties, convicted and sentenced the accused-appellant, as mentioned above. The learned counsel for the appellant, Shri Rajesh Goswami, contended that as per the written report (Exhibit P-11) itself it is clear that the offence of rape was alleged to have been committed by accused in presence of PW-6 Kalu Lal, the husband of the prosecutrix herself, which is not believable and the said allegation becomes doubtful, and further that the statement of the prosecutrix is not corroborated with the medical evidence. He contended that as per Exhibit P-4, the medical-report of Madi Bai, no external or internal injury was found on her person except one abrasion on her left forearm, which was simple in nature by blunt object. It is contended that as per the Exhibit P-4, which is proved by PW-3 - Dr. O. P. Verma, it is clear that no definite opinion was given regarding commission of rape. He, therefore, contended that in absence of corroboration of statement of the prosecutrix with the medical evidence, it will be unsafe to base the conviction of the accused and the trial court has wrongly convicted him. So far as semen stain on the cloths are concerned, he contended that the Hon'ble Supreme Court in Rahim Beg vs. State of U. P. (1072) Cri. L. J. 1260, held that semen stain can exist because of a variety of reasons and would not necessarily connect him with the offence of rape. He further contended that there is no evidence to prove that semen found on the clothes were of accused as the same were not got compared by cogent evidence. In this connection he also referred to the decision in the case of Tulsi Ram vs. State of Rajasthan - 2000 Cri. L. J. 1634 (Rajasthan ). He therefore contended that the accused is entitled to the benefit of doubt and is liable to be acquitted.
(3.) PER contra, the learned Public Prosecutor supported the judgment passed by the trial court and contended that this is a case where the accused was friend of Kalu Lal (PW-6) and both took their meals together and accused being known to PW-6 Kalu Lal, he was allowed to sleep at the residence of Kalu Lal itself and in the night he committed the offence of rape with Madi Bai W/o Kalu Lal. It was contended that the statement of the prosecutrix is corroborated with the statement of Kalu Lal (PW-6) and Hukam Chand (PW-2 ). So far as injury-report (Exhibit P-4) is concerned, it is contended that there is an abrasion on the person of the prosecutrix, but the statement of the prosecutrix is trustworthy and it does not require any corroboration by medical evidence particularly when her statement is corroborated by other evidence i. e. the statement of PW-2 and PW-6. It is further contended that PW-6 Kalu Lal and accused both were friends, therefore, there was no question of false implication of the accused in the crime and there is no reason to disbelieve the testimony of the prosecutrix Madi Bai in the facts and circumstances of the present case. Therefore, it was contended that there is no merit in this appeal and the same be dismissed. I have considered the submissions of the learned counsel for both the parties and minutely scanned the impugned judgment as well as the record of the trial court and also the citations as referred during the course of arguments. Pw-6 Kalu Lal lodged a written-report Exhibit P-11 at Police Station Kotwali along with his wife Smt. Madi Bai (Pw-8) wherein it was stated that he was the counsel for accused Mangilal as he had filed a suit for divorce on behalf of Mangilal against his wife Raj Kumari and the said case was fixed on 22. 12. 1995 in the court of District Judge, Bundi. The accused came at his residence at about 5. 00 PM to take some legal opinion. The accused told him that he is hungry and thirsty. The accused was belonging to his nearby village and he was his friend, therefore, he believed on him and after taking meals at his residence, the accused slept with him. It was further mentioned in the written report that accused made a complaint about vomiting to him and he requested his wife to put switch of the light on and soon thereafter the accused caught hold- of his wife and ravished her. His wife raised hue and cry and thereafter he also pushed him and caught- hold-of him. His wife gave slipper blows on the person of accused and thereafter the report was lodged. Exhibit P-1 is the seizure memo of clothes (Lahanga, Lugda and Blouse) of the prosecutrix Madi Bai. Exhibit P-2 is the seizure memo of broken bangles of the prosecutrix which were recovered/collected from the place of incident. Muffler, shoes and coat of the accused were also seized from the place of the incident vide Exhibit P-2. Site-plan of the place of incident Exhibit P-3 was also prepared, wherein a reference was given about recovery of shoes, muffler and coat of the accused as well as broken bangles of the prosecutrix. Exhibit P-4 is the injury-report of Madi Bai, according to which, a abrasion 2x1 cm (clotted blood present) at Anterior aspect of lower part of left forearm simple blunt, duration of injury within 0-24 hours. ;