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CASE NO.: Appeal (crl.)  928 of 2001

PETITIONER: State of Rajasthan

RESPONDENT: Munshi

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 928 OF 2001

HARJIT SINGH BEDI,J.

1.              This appeal by way of special leave arises out of  the following facts: 2.              Munshi, the respondent herein was charged,  convicted and sentenced for an offence punishable under  section 376 of the Indian Penal Code by the Additional  Sessions Judge, Karoli and ordered to undergo rigorous  imprisonment for 10 years and to a fine of Rs.1000/- on  the allegation that he had, on 18th September 1994, caught  hold of PW5 Raj Kumari when she had gone to the well  outside the village at 3 p.m. to bring water and had  thereafter raped her.  Raj Kumari on reaching home  narrated the incident to her mother PW3 Sharda and father  PW2 Ramesh on which a report was lodged with the Police by  the latter at 6.30 p.m. on the same day.  PW13 S.I.  Kamlesh Kumar Sharma then visited the place of occurrence  and observed that the Bajra crop had been trampled upon at  the site where the rape had been committed and also  retrieved some pieces of Rajkumari’s torn underwear.  A  medical examination conducted by PW1 Dr. Nand Lal Sharma  revealed multiple injuries on her body with oozing of  blood from her vagina and swelling and rupturing of her  hymen.   The radiological examination to determine her age  indicated that she was above 17 years but below 19 years  of age.  The trial court in its judgment dated 5th  September 1995 observed that the prosecution story rested  on the evidence of Rajkumari herself and the statements of  Swarupi PW4 her grand mother (as Umesh PW6 had been  declared hostile) who had been attracted to the place of  incident when she had shouted for help and had also seen  the accused running away after having committed the  assault.  It was also observed that the aforesaid evidence  had been corroborated by the statements of  Ramesh PW2   the first informant and PW3 Sharda who deposed that  Rajmukari had returned home with bruise and scratch marks  all over and had narrated the entire story.  The court  relying on the aforesaid evidence and the circumstance  that the torn underwear had been picked up from the spot,  convicted the accused.   The High Court however in appeal  set aside the conviction by holding that Rajkumari’s story  appeared to be unnatural more particularly as it would  have been difficult for her to have been raped at 3 p.m.

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in the vicinity of the village.  It also observed that the  statement of PW4 could not be believed.  The court also  held that the prosecution story that the torn underwear  which had been picked up by the police at the time of site  inspection was also not believable as the statement of  PW13 K.K. Sharma was discrepant vis-‘-vis the statement of  Rajkumari on this aspect.  The present appeal at the  instance of the State of Rajasthan is before us in these  circumstances. 3.              We are aware of the self imposed limitation which  the court must apply while examining the evidence in an  appeal against acquittal and if the High Court has given  cogent reasons in making its order, interference is not  called for.  We find, however, that High Court has grossly  erred in assessing the evidence and that the findings  recorded are not only wrong but based on a complete  misreading of the evidence.  We have accordingly chosen to  re-evaluate the evidence ourselves. 4.              It will be seen that the primary evidence is that  of PW5 Raj Kumari, the prosecutrix herself.  She  unequivocally stated that she had gone to the well outside  the village at about 3.30 p.m. and had been set upon by the  respondent, carried into the bajra field where her clothes  had been ripped away, and then raped.  She also stated that  she had been unable to raise an alarm at the time when the  rape was being committed but she had called out as soon as  she was able to do so and that her cries had attracted her  grand mother PW4 and Umesh PW6 and they too had come to the  place of incident and seen the assailant running away.   This story is corroborated by the evidence of PW-4 as well.   It has also come in the evidence that after Rajkumari  returned home she told her parents about what had  transpired on which the First Information Report had been  lodged without delay and she had also been sent for her  medical examination at 11 a.m. on 19th September 1994 which  too indicated fresh marks and indications of sexual  intercourse which had occurred within 24 hours.  We find  that the ocular evidence is further corroborated by the  fact that the police officer had picked up (vide seizure  Memo EX.P-7) a torn piece of underwear from the site which  matched the underwear that Rajkumari had been wearing.   This recovery when read with the evidence that the bajra  field had been trampled upon clearly proves not only the  factor of rape but also the place of incident. 5.      Faced with this situation, the learned counsel for the  respondent accused has argued that the facts of this case  revealed that the sexual intercourse had been consensual in  nature.   We are of the opinion, however, that this  submission is not borne out from the circumstances that are  before us.  The fact that the hymen was freshly ruptured  and the vagina could take only one finger with difficulty  shows that Raj Kumari was not habituated to sexual  intercourse and had been subjected to intercourse against  her will  more particularly as in a case of consent her  underwear would not have been found to have been torn.   We  are therefore of the opinion that the judgment of the  learned Additional Sessions Judge needs to be restored.  We  accordingly set aside the acquittal.                                     6.      The learned counsel for the accused has finally  pointed out that the incident had occurred way back in 1994  and some mitigation therefore in the quantum of sentence  was called for especially as the High Court had found that  no case had been made out against the accused.  We  accordingly reduce the sentence awarded by the trial court  from 10 years R.I.  to 7 years R.I,  the other part of the

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sentence shall remain as it is.

7.      The appeal is allowed to the above extent.