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2000 DIGILAW 954 (RAJ)

Mangiya v. State of Rajasthan

2000-08-01

V.G.PALSHIKAR

body2000
Honble PALSHIKAR, J.–Being aggrieved by the order of conviction and sentence passed on 31.1.86 by the learned Addl. Sessions Judge, Chittorgarh in Sessions Case No. 85/85, which is as under, the appellants have preferred this appeal on the grounds mentioned in the memo of appeal:- Mangiya convicted u/S 376 I.P.C. Sentence -5 years rigorous imprisonment & Rs. 200/-fine, in default 2 months simple imprisonment. Bhojiya convicted u/S. 376/114 I.P.C. Sentence-5 years rigorous imprisonment and Rs. 200/-fine, in default 2 months simple imprisonment. Laxman convicted u/S. 376/114 I.P.C. Sentence-5 years rigorous imprisonment and Rs. 200/-fine, in default 2 months simple imprisonment. Smt. Lali convicted u/S. 366, 376/114 I.P.C. Sentence -u/S 366 -3 years rigorous imprisonment and Rs. 200/-fine, in default 2 months simple imprisonment. u/S 376/114 -5 years rigorous imprisonment and fine of Rs. 200/-in default 2 months simple imprisonment. (2). With the assistance of the learned counsel appearing on behalf of the accused and the learned P.P., I have scrutinised the record and reappreciated the evidence on record. The prosecution story as disclosed on reappreciation of evidence is that on 6.5.83 a First Information Report (F.I.R.) was lodged by one Lali d/o Kesha to the effect that on 5.5.83 at about 10 AM when she was alone in the home Smt. Lali W/o Laxman came to her and asked her to accompany her to Begun. She was pursuaded to accompany her to go to Begun to witness a picture. It was then stated that after watching one movie, they took their dinner in a hotel and again saw another film in the mid night and when they were returning after the midnight show, she was assaulted by accused Mangiya and was reped by him. The F.I.R. also mentions that the prosecutrix was assaulted and reped by other male members present i.e. Laxman and Bhojiya. On the basis of this F.I.R., investigation was taken up. The accused persons were arrested and on completion of investigation, they were challaned for having committed offences under Sec. 366, 376 and 376 read with Section 114 I.P.C. The prosecution examined 11 witnesses in support of its case for rape, the certain documents executed during the course of investigation were to be proved. Relying on these documents and the oral testimony of the 11 witnesses, the learned Addl. Relying on these documents and the oral testimony of the 11 witnesses, the learned Addl. Sessions Judge came to the conclusion that the accused persons were guilty of the offences with which they were charged and he, therefore, convicted them as aforesaid for those offences. It is this order of conviction, which is assailed in this appeal by the learned counsel for the appellants. (3). It was contended by the learned counsel that reappreciation of the evidence will show that there are definite improvements in the prosecution case and false implication of certain accused persons, if proved, and in the circumstances, the testimony of the prosecutrix is liable to be rejected as a whole. According to the learned counsel, it is a clear case of consent and even if it is accepted that intercourse did take place, no case of rape is made out. It was then argued by the learned counsel that in any event, the conviction of Bhojiya, Laxman and Smt. Lali w/o Laxman is wholly unsustainable in law. There is no evidence whatever of any offence u/S. 366 having been committed nor there is any reason to believe that the accused Bhojiya, Laxman and Smt. Lali w/o Laxman abducted the prosecutrix Lali d/o Kesha or abetted in the offence of rape by Mangiya. The learned P.P. relying on the evidence of the prosecutrix and others, claimed that the order of conviction is proper. (4). I have to examine the rival contentions in the light of the evidence as led by the prosecutions. In this connection, the evidence of Lali d/o Kesha, the prosecutrix is of prime importance and according to me, the entire prosecution hangs on the testimony of this witness. The prosecution has examined the doctor, who conducted medical examination of the prosecutrix Lali and has deposed in unequivocal terms that she was ravished. She has a vaginal injury and she had suffered seriously by the sexual assault. He has deposed to bleeding injury on her vagina and has stated that all the injuries have been caused by forceful assault on her person. The fact that she was ravished sexually thus stands proved. There is nothing in the cross examination of the Medical Practitioner to discredit his testimony and, therefore there is no error whatever in the judgment of the learned Addl. Sessions Judge for holding that the prosecutrix Lali was ravished. The fact that she was ravished sexually thus stands proved. There is nothing in the cross examination of the Medical Practitioner to discredit his testimony and, therefore there is no error whatever in the judgment of the learned Addl. Sessions Judge for holding that the prosecutrix Lali was ravished. In this background, the evidence of the prosecutrix Lali has to be appreciated. She has given a graphical description of the manner in which she was taken to Begun to watch movies and thereafter she was assaulted in the night while returning by Mangiya. She has deposed that she and four accused persons were returning after midnight and were together when taking advantage of a big tree, the accused assaulted her. She has also described the manner in which the assault took place. The witness has truthfully admitted that she was not assaulted by Bhojiya or Laxman sexually. She has stated that they did not even touch her and, therefore, the learned Judge was right in not convicting these two accused persons for offence u/S. 376 I.P.C. He proceeded to acquit Laxman, Mangiya and Bhojiya for offence u/S. 366 I.P.C. but he convicted Smt. Lali w/s Laxman. I have to consider these contentions in the light of the evidence of the prosecutrix Lali d/o Kesha primarily. As aforesaid, she has honestly admitted before the Court that names of two accused persons were wrongly mentioned in the F.I.R.; that they did not assault her. She has also given detailed description of the entire incident right from the moment she left at 10 AM. on 5.5.83 to past midnight when she was assaulted. It is true that she has exaggerated to a little extent certain things in her deposition. In the cross examination, she has insisted that the mention of Laxman and Bhojiya in the F.I.R. was not wrongly done and alleged that she was raped by these two persons. From her testimony it is, therefore, apparent that she left her home voluntarily with Smt. Lali w/o Laxman and enjoyed the hospitality of the accused persons for 12 hours till midnight and happily started for returning home after watching two movies and taking dinner. It was then that the accused Mangiya had the intention to commit rape on her and he then forcibly assaulted her causing several bleeding injuries to her person. It was then that the accused Mangiya had the intention to commit rape on her and he then forcibly assaulted her causing several bleeding injuries to her person. The cause of these injuries is proved by the doctor and consequently, the assault by Mangiya is proved. There is nothing in the examination of this witness or her cross examination by the accused to discredit her testimony wholly. I am of the opinion that the order of the learned Addl. Sessions Judge convicting the accused Mangiya calls for no interference. Similarly, his order acquitting the accused Laxman and Bhojiya for offence u/S. 366 I.P.C. needs to be confirmed. That takes me to the question as to whether the conviction of Smt. Lali w/o laxman u/S 366 I.P.C. and the conviction of these three persons u/S. 376 read with Sec. 114 I.P.C. is in the circumstances proper. It will be seen that there is ample evidence on record to show that the prosecutrix Lali voluntarily went away with the accused persons. She had ample opportunity to go away from them but she witnesses two movies, participated in the dinner and nowhere made any complaint about her being enticed or forcibly taken away. Even in regard to Smt. Lali w/o Laxman no case for offence u/S. 366 is made out. The provisions of Sec. 366 I.P.C. in this regard may be considered. Section 366 I.P.C. speaks of kidnap or abduction of any woman with the knowledge that she is likely to be raped. There is no evidence whatever on record that such was the intention of Smt. Lali w/o Laxman when she asked the prosecutrix to accompany to Begun to witness movies. The conduct of the witness, the prosecutrix as also the accused persons demonstrate voluntary participation in the entire happenings by the prosecutrix. In order to bring home the offence u/S. 366, the ingredient of Sec. 361 I.P.C. pertaining to kidnapping must be proved. Sec. 361 requires taking away from the lawful guardianship a female under age of 18 years without the consent of the guardian. In the present case, there is no evidence of such enticing away of taking away. The testimony of the prosecutrix is clear and she has stated that she voluntarily went with these persons to witness movies. In my opinion, therefore, no offence punishable u/S. 366 I.P.C. has been committed even by Smt. Lali w/o Laxman. In the present case, there is no evidence of such enticing away of taking away. The testimony of the prosecutrix is clear and she has stated that she voluntarily went with these persons to witness movies. In my opinion, therefore, no offence punishable u/S. 366 I.P.C. has been committed even by Smt. Lali w/o Laxman. The order of the learned trial Judge in that regard is liable to be set aside. (5). In my opinion, the learned Judge has committed an error of law in convicting the other three persons for offence u/S. 376 read with Sec. 114 I.P.C. Sec. 114 I.P.C. reads as under:- ``114. Abettor present when offence is committed-Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. In order to bring home the conviction u/S 376 read with Sec. 114 I.P.C. the prosecution has to establish presence of the accused person if it was committed as also their abetment to commit the offence by the perpetrator. There is no evidence in this case to show that the prosecutrix was taken up form her home so that Mangiya could commit rape on her. There is no evidence of any independent person that the three accused persons had the knowledge of Mangiyas intention to commit rape. Even the prosecutrix did not have any such knowledge or even idea that she would be raped by Mangiya. In the absence of any such evidence of abetment of offence of rape to be committed by the accused Mangiya, conviction of other accused persons u/S. 376 I.P.C. with the aid of Sec. 114 I.P.C. is impermissible in law. In order to being home such conviction u/S. 376 I.P.C. read with Sec. 114 I.P.C. there must be evidence on record to show: (a) that there was abetment of rape to be committed; (b) that the abettors have factually abetted the commission of rape; and (c) that they were present at the time when the commission of rape took place. In the present case, there is no evidence of any of these ingredients. In the present case, there is no evidence of any of these ingredients. There is no evidence that the accused Laxman,Bhojiya and Smt. Lali w/o Laxman had any conspiracy or desire to abet the commission of rape by the accused Mangiya. Even the evidence in regard to their presence at the time when the rape was committed, is not very clear. It is unlikely that even those who factually desired to abet commission of rape would remain present that the site to watch the incident. There is, thus, no convincing evidence on record to show that the accused Laxman, Bhojiya and Lali w/o Laxman either abetted commission of rape or were present when the rape was committed. Even if the presence of the accused at the time when the rape was committed is assumed to be accepted, still non examination of the prosecutrix in this regard is very material. In the absence of any evidence of abetment of rape by these accused persons conviction u/S. 376 read with Sec. 114 I.P.C. is not possible. I have no hesitation in holding in the circumstances as disclosed by the evidence of the prosecutrix that the accused Laxman, Bhojiya and Smt. Lali w/o Laxman are not guilty of the offence of abetment of rape and consequently, they cannot be convicted u/S. 376 read with Sec. 114 I.P.C. (6). It is pertinent to note at this stage that the prosecutrix did not charge these persons for abetment of rape at all. They were charged for kidnapping the prosecutrix and the three male members were charged for raping her. There is no charge that these three other accused persons abetted commission of rape by Mangiya. Nor is there any evidence to this effect on the basis of which conviction can be sustained. The same is, therefore, liable to be set aside. (7). In the result, the appeal is liable to be partly allowed. It is accordingly, partly allowed. The conviction of Mangiya u/S 376 I.P.C. is maintained. All other convictions of all other accused persons are set aside. They are on bail. Their bail bonds are cancelled. In so far as Mangiyas sentence of five years rigorous imprisonment is concerned, he has already suffered imprisonment for three and half years and is on bail for last 16 years. The conviction of Mangiya u/S 376 I.P.C. is maintained. All other convictions of all other accused persons are set aside. They are on bail. Their bail bonds are cancelled. In so far as Mangiyas sentence of five years rigorous imprisonment is concerned, he has already suffered imprisonment for three and half years and is on bail for last 16 years. No fruitful purpose in the circumstances will be served by requiring him to suffer further imprisonment after 16 years. He is, therefore, sentenced to suffer imprisonment for three years, which he has already suffered and hence, his bail bonds are also cancelled.