Rajasthan High Court - Jodhpur
Birju vs State on 16 May, 2022
Bench: Pushpendra Singh Bhati
(1 of 3) [CRLA-325/1992]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 325/1992
Birju
----Appellant
Versus
State
----Respondent
For Appellant(s) : Ms. Sapna Vaishnav (Amicus Curiae)
For Respondent(s) : Mr. Mukhtiyar Khan, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
16/05/2022
This criminal appeal under Section 374(2) Cr.P.C. has been
preferred by the appellant claiming the following reliefs:
"It is, therefore, respectfully prayed that this appeal may
kindly be allowed and the accused appellant may be
acquitted under Section 376 of IPC and he may be set at
liberty."
The matter pertains to an incident which occurred in the year
1990 and the present appeal has been pending since the year
1992.
Ms. Sapna Vaishnav, learned counsel for the appellant
submits that on 02.03.1990, an incident took place, for which an
FIR was reported on 03.03.1992 in which, the allegation of rape
was alleged upon the accused appellant supported by the
statement of PW-2-Nema Ram.
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(2 of 3) [CRLA-325/1992]
Learned counsel for the appellant has drawn attention of this
Court to the statement of PW-1, in which, she has accepted that
there was an altercation between her father and the accused. She
has also accepted in her statement that she was beaten on that
day, apart from allegation of rape.
Learned counsel for the appellant has also taken this Court
to the evidence of PW-2 and submits that the version is doubtful
to the extent that the uncle of the girl, rather than helping the
prosecutrix in an injurious condition to reach home, has ran
behind the accused and it was the prosecutrix, who alone came
back to her house.
Learned counsel for the appellant gives heavy weightage to
the evidence of PW-4, who is a Doctor, who in his deposition has
deposed that the age of the accused is between 15 to 17 years.
He further deposed that there were no signs of rape on the body
of the prosecutrix; the doctor has also deposed that there was no
signs of any kind of violence in the perineal region nor there was
any sign of any semen or blood; the doctor also deposed in his
deposition that the hymen was intact and there was no bleeding.
The doctor also deposed that there was no external injuries.
Learned counsel for the appellant also submits that the
altercation between the father of the prosecutrix and the present
appellant points out an animosity, which occurred due to grazing
of a camel. The deposition of the Doctor creates suspicion
amongst in the prosecution story.
Learned Public Prosecutor opposes the petition and submits
that the statement of the prosecutrix is sufficient to convict the
present accused appellant and there is no discrepancy in her
statement.
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(3 of 3) [CRLA-325/1992]
This Court, after hearing learned counsel for the parties as
well as perusing the material available on record, finds that the
appellant himself was a 15 years old boy and there was an
animosity between the father of the prosecutrix and the present
appellant creates a question mark upon the story of the
prosecution. The prosecutrix has narrated that she was beaten by
the appellant, thus, for removing such suspicion, which crept into
the statement of the PW-1, the best would be corroborated with
the medical evidence whereas in this case there is no medical
evidence on record of any kind of injury or violence, so much so
that the doctor has deposed that there was no rape as the hymen
was intact and there was no injury at the private parts or any
other body parts of the prosecutrix, thus, the benefit of doubt has
to go to the appellant, who himself was a minor boy.
9. Accordingly, the appeal is allowed and the impugned
judgment dated 30.07.1992, passed by the learned Additional
District and Sessions Judge, Churu is quashed and set aside. The
appellant is acquitted of the charges levelled against him. The
appellant is on bail. He need not surrender. His bail bonds stand
discharged accordingly.
10. All pending applications stand disposed of. Record of the
learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
37-Sudheer/-
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