IMPORTANT POINT
The main legal point established in the judgment is the application of the Probation of Offenders Act and the discretion of the court to provide the benefit of probation based on the nature of the offence, the character of the offender, and the circumstances of the case.

JUDGMENT :

1. Heard learned counsel for the accused appellant, learned Addl. Govt. Advocate for the State and perused the record.

2. The present criminal appeal has been preferred against the judgment dated 28.02.1994 passed by the Court of learned Sessions Judge, Jhalwar (Rajasthan) [for short ‘the learned trial court’] in Sessions Case No.340/1992, whereby the learned trial court convicted the accused appellant for the offence under section 376/511 IPC and sentenced to undergo four years rigorous imprisonment and a fine of Rs.500/-. In default of payment of fine, the accused appellant is to further undergo additional two months simple imprisonment.

3. As per the prosecution case, FIR No. 137/1992 (Ex.P2) was got registered at Police Station Khanpur, District Jhalawar for the offences under sections 376 and 511 IPC. In the FIR it was alleged that on 01.07.1992 the complainant and her daughter aged about 7 years were taking bath at Nagli river. After taking bath the father of the victim sent the victim along-with accused Ramesh for village and the father of the victim went to in his relation. It is alleged that accused Ramesh on the way to the house sexually assaulted the victim i.e. daughter of the complainant and during that incident, the victim started weeping and then Kanhaiyalal came to the spot and the accused ran away.

4. After completion of the investigation, the police submitted the charge-sheet against the accused appellant for the offence under section 376/511 IPC.

5. The case was committed to the Court of Session for trial. The learned trial court framed the charges for the offence under section 376 read with section 511 IPC, to which the accused appellant denied and opted for trial.

6. From the prosecution side, the statements of PW1 Victim (X), PW2 Shivlal, PW3 Sushila, PW4 Radhey Shyam, PW5 Kanhaiya Lal and PW 6 Radhey Shyam were recorded.

7. The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has stated that the complete evidence is not trust-worthy.

8. After hearing the parties, the learned trial court vide its judgment dated 28.02.1994 convicted and sentenced the accused appellant for the offences mentioned above.

9. Counsel for the accused appellant submits that the prosecution story is false and fabricated one and there is no trust worthy evidence on record against the accused appellant and further he submitted that the offence has not been proved against the accused appellant beyond reasonable doubt. Counsel also submitted that there are contradictory evidence in regard to making the victim naked. Counsel also submitted that even if the prosecution story is believed then the accused appellant at the most could be convicted for the offence under section 354 IPC.

10. Learned Addl. Govt. Advocate has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the learned trial court and keeping in view the evidence on record, the accused appellant has been rightly convicted.

11. The learned trial court has convicted the accused appellant for the offence under section 376/511 IPC, though PW1-Victim (X) in her statement recorded by the learned trial court has stated that the accused got the victim (X) sit in his lap when he was naked. On hearing the weeping of the victim (X), Kanhaiya Dada came and rescued her. In cross- examination the victim (X) has further stated that the accused has committed rape with her. The only alleged eye witness of the incident Kanhaiya Lal has stated that he saw the accused committing sexual assault with the victim and when the accused appellant saw him, he ran away.

12. Section 375 IPC defines the rape, which is as under:-

"375. Rape.-A man is said to commit “rape” if he -

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the