M.L. Jain, J.
1. This appeal is directed against the judgment of the learned Additions Seasons Judge, Churu, dated 25-5-73 by which he convicted the appellant Sheo Karan under Section 376 IPC and sentenced him to rigorous imprisonment for seven years and to a fine of Rs. 200/- in default whereof to simple imprisonment for one month.
2. I have heard arguments and perused the record. The facts of the prosecution case are that on 24-6-72 at about 10 a.m. in the Rohit of village 'Kandran' within police station, Churu Neemli PW 1 daughter of Raju Ram aged 8 years had pone to the pasture area as usual to graze her goat She was accompanied by other two children, namely, Khyali PW 2 and Kamli PW. The accused shoe Karan came and threatened the children. He carried away Neemli and ravished her. Her brothers Ram Kumar and Ram Karan went in search of the children and found that Neemli was lying unconscious in the Rohit . Sheo Karan magaged to escape. A group of villagers went in chese. He was apprehended and taken to the police station where Raju Ram father of the girl lodged the FIR. Ex. P2.
3. The police forwarded Sheo Karan for medical Examination. The report of Dr. Narula P.W. 14 was that there was no magma round his glans penis. There was no semen on his public hair. There was no discharge from the urethra. The following simple injuries caused by blunt weapon were found on his person:
1) - Lacerated wound 1/4' x 1/4' on the right parietal region.
2) -Lacerated wound 1/2' x 1/6' x 1/8' on the left parietal region on the scalp.
3) - contusion 2' x 1/2' on the left deltoid region.
4) - contusion 6' x 1/2' on the right side of the lower thorax, and abdominal wall.
5) - contusion 2' x 1/2' on the left scapular region.
6) - contusion 6' x 1/2' on the back of the chest wall right aide.
7) - contusion 4' x 1/2' just near the contusion No. 6
8) - contusion 1' x 1/2' just below the right eye.
9) - abrasion 1' x 1/2' on the front of the right knee joint.
10) - abrasion 1/4' x 1/4' on the bridge of the nose.
4. It was not possible for the medical officer to give definite opinion as to whether Sheo Karan had committed any rape or not.
5. Dr Pushpa Rathod examined Mst. Neemli next day i.e. 25.6.72, She stated that her age was about 9-12 years She found to have sustained the following injuries on her person:
1) - Oedema around the valva and anus.
2) - 2 abrasions no right labia majna 1/4' long each.
3) - Hymen torn upto base.
4) - Lacerated wound labia minora of both sides 1' x 1/3' x 1/3'.
5) - Posterior vagino perineal teas 2' x 1/2' x 1/2' fresh blood on the wound.
6) - lacerated wound on left lateral vaginal wall 1' x 1/4' x 1/4' with fresh blood on the wound.
7) - P.V. very tender.
8) - Laceration of anal mucous membrane posteriorly.
9) - Left breast swollen and tender 2' x 2' in comparison of the tight breast.
6. In the vaginal discharge no sperm was seen Her opinion was that the duration of the injuries was about 48 hours. Penetration of male organ was effected both in vagina and anus of Neemli. She remained admitted in the hospital for a few days.
7. The police put up a challan under Section 376 I.P.C. The Committing Magistrate however charged the accused with an offence under Section 376 IPC and 377 I.P.C. The learned trial Judge by his aforesaid judgment acquired the accused of an offence under Section 377 IPC by extending him the benefit of doubt. He however, convicted and sentenced him under Section 376 IPC as aforesaid.
8. Mst. Neemli has deposed that the accused dragged her by force and committed rape upon her and also subjected her to carnal in tercourse against the order of nature, Khyali PW 2 has disposed that the accused carried Mst. Neemii by force towards the Johad. Dust storm was blowing. Khyali and Kamli were feeling thirsty and be fan to walk towards the village. They met Ram Karan and Ram Kumar who were bringing water for them He told them how the accused had carried away Mst. Neemli. When they went rear the Jobad, they found that the accused was leaving the place and Mst. Neemli lying on the ground bleeding. Ram Kumar went towards the accused who was drawing water from the KUND and asked him why be had touched the girl. The accused threatened him that the will cut bite by his axe. Mst. Kamii PW 3 is the cousin of Mst. Neemli and has supported the version given by Khyali Ram Kumar PW 5 has deposed that be and Ram Karan were carrying water for the children when he was informed by Kamli and Khayali that the accused had carried away Neemli. When they went about two fields they found Neemii lying unconscious under a 'Jenti' tree. The accused was seen by them going to a 'KUND' where Ran Kumar went and questioned him about what be lad core with the girl The accused is said to have threatened him with murder with an axe. Ram Karan went back and brought some villagers. They were able to catch the accused about a mile away and brought him in the village. The accused in said to have asked them for pardon. Ram Karan PW 6 has substantially corroborated Ram Kumar. Mst. Shivkanwari P.W. 7 deposed that when she went to the place of occurrence, she found her daughter unconscious and bleeding. She regained her concourses when she began to walk towards the village She told her that the was caught by a boy of Kandran. Mst. Neemli and Khyali bad identified the accused in the identification parade before the Tehsildai, Rajgarh en 24-7-72 From the aforesaid evidence, it is clear that the accused was not known to the girl before hand. But from the evidence of Ram Karan and Ram Kumar and the corroborate in provided by test identification it is proved that it was the accused who was the person who subjected Mat Neemli to violence. The medical evidence has provided further corporation that Mst. Neemli had lacerations in her private parts and the accused had no smegma en his organ.
9. The accused took up the pita that on the day when be went to his field, then he found Ram Kumar stealing his 'POOLAS' that lead to a fight between them. Ram Kumar ran towards the village. He brought some persons who began to beat him. He was then carried to the house of Raju Ram from where he was carried to the police station where a false case was instituted against him. The accused had also produced some witnesses in self defence. This theory of the accused was rejected by the learned trial Judge, and it was held that the accused had committed tape upon Mst. Neemli.
10. The learned counsel for the appellant now submits that the prosecution case suffers from the following infirmities:
1) - According to statement of Dr. Narula PW 14, in a case of rape and carnal intercourse injuries upon the private parts of the accused should be found but none was found even though the boy was not examined the same day, while the girl was examined next day.
2) - There were no semen or blood on the clothes of the accused. Semen was not noticed even on the clothes of the girl.
It was urged that the medical evidence does not corroborate the case against the accused. He was beaten by the complainant party, and then, in cider to escape the consequence of assault, the complainant party foisted this false case. Lastly, it was submitted that the punishment of 7 years is rather on the high side. The accused is a young man of 22 years, had been beaten badly for what he is alleged to have done and is under arrest since May, 1973. He deserves to be let off on the sentence already undergone by him.
11. I have considered over these submissions. Absence of seminal discharge cannot exclude rape. As respects the injuries on the mile genital, Dr. Narula said that in such cases it is possible that injuries on the penis would occur Now, this statement is very different from saying that injuries must occur. It appears to me that the findings of the learned lover court cannot be disturbed simply on the basis of the two aforesaid infirmities alleged to be there in the prosecution case. There appears, however, some case for reduction in the sentence.
12. I, therefore, partly accept, the appeal and direct that the conviction of the appellant is maintained but his sentence is reduced from seven years to five years of rigorous imprisonment. The sentence of fine is maintained.