Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1777 (RAJ)

Ram Chander S/o Hukma Ram v. State of Rajasthan

2001-11-07

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been preferred by the accused-appellant against the judgment and order dated 31.8.2001 passed by learned Additional Sessions Judge, Sri Karanpur in Sessions Case No. 27/99 by which he while acquitting the another accused-Lal Chand for offence u/s. 366 IPC convicted the accused-appellant for offence u/ss. 376 & 366 IPC and sentenced him as under: Offence Sentence awarded 366 IPC 7 years' RI and a fine of Rs. 500/- in default to further undergo 3 months' imprisonment 376 IPC 7 years' RI and a fine of Rs. 500/- in default to further undergo 3 months' imprisonment. Both the sentences were ordered to run concurrently. 2. This appeal arises in the following circumstances : (i) On 11.7.1999, at about 6.15 p.m. PW-2 Amilal lodged an oral report Ex.P/3 with the Police Station, Gamurwali, Distt. Sri Ganganagar stating that on 10.7.1999 at about 8.30 a.m. his wife Chameli PW-1 (hereinafter referred to as 'the prosecutrix') aged 40 years went to the field for the purpose of bringing fodder for cattle, but she did not return upto evening. At the time, when she went to the field, she was wearing Salvar, Jumper and Chunni and she was also wearing golden ring and one pandal and in legs she was having silver Paijeb. It was further stated that he searched PW-1 Chameli, but he could not find her whereabouts. It was further stated in the report that Gokal Ram PW-3 informed him that on 10.7.1999, he saw PW-1 Chameli in the company of the accused-appellant and another accused-Lal chand going towards 3 P.P. Thus his wife PW1 Chameli had been kidnapped by these accused. 3. That on this report, police chalked out regular FIR Ex.P/3 and started investigation. 4. During investigation on 12.7.1999, at about 10.00 a.m. PW-1 Chameli was found at the head of Suleman where she was waiting for a bus and recovery Fard of the prosecutrix is Ex.P/1. 5. On 12.7.1999, PW-1 Chameli was got medically examined by PW-6 Dr. Darshan Singh and her medical examination report is Ex.P/9 and the accused-appellant was got arrested through Fard Ex.P/5 on 14.7.1999. 6. After usual investigation, police filed challan against the accused-appellant as well as against another accused-Lal Chand in the Court of Magistrate from where the case was committed to the Court of Additional Sessions Judge, Sri Karanpur. 7. Darshan Singh and her medical examination report is Ex.P/9 and the accused-appellant was got arrested through Fard Ex.P/5 on 14.7.1999. 6. After usual investigation, police filed challan against the accused-appellant as well as against another accused-Lal Chand in the Court of Magistrate from where the case was committed to the Court of Additional Sessions Judge, Sri Karanpur. 7. On 17.12.1999, the learned Additional Sessions Judge frame charges for offence u/ss. 376 & 366 IPC against the accused-appellant and for offence u/s. 366 IPC against another accused-Lal Chand. Both pleaded not guilty and claimed trial. 8. During trial, 7 witnesses were examined by the prosecution and thereafter statements of accused-appellant u/s. 313 Cr.P.C. were recorded and no witness was examined in defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 31.8.2001 convicted the accused-appellant for offence u/ss. 376 & 366 IPC and sentenced him as stated above. 10. Aggrieved from the said judgment, this appeal has been filed by the accused-appellant. 11. In this appeal, the main contention of the learned counsel appearing for the accused-appellant is that the learned Additional Sessions Judge has erred in placing reliance specially on the statement of prosecutrix PW- 1 Chameli as at the time of alleged incident, she was matured lady of about 40 years of age and she was mother of children and therefore, what was done by the accused-appellant with her, that was done with her consent and thus no case of forcible rape or abduction is made out against the accused-appellant and the findings of the learned Additional Sessions Judge convicting the accused-appellant for offence u/ss. 366 & 376 IPC are liable to be set aside and, the accused-appellant is entailed to acquittal. 12. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge, Sri Karanpur. 13. I have heard both and perused the record of the case. 14. Before proceeding further, first medical evidence has to be seen. 15. So far as medical evidence is concerned, the prosecution has produced PW-6 Dr. Darshan Singh who states that on 12.7.1999 in the capacity as Medical Officer, Gamurwali, he examined PW-1 Chameli. She was 40 years of age and she came to the conclusion that PW-1 Chameli was matured lady and mother of children and was habitual to sexual intercourse. 15. So far as medical evidence is concerned, the prosecution has produced PW-6 Dr. Darshan Singh who states that on 12.7.1999 in the capacity as Medical Officer, Gamurwali, he examined PW-1 Chameli. She was 40 years of age and she came to the conclusion that PW-1 Chameli was matured lady and mother of children and was habitual to sexual intercourse. He has proved medical examination report Ex.P/9 and he did not find any sort of injury on any part of her body including her private parts. Thus, from the medical point of view, it is a case of nil evidence so far as charge of rape is concerned. 16. The best evidence in the present case is of prosecutrix PW-1 Chameli herself. 17. Before examining the evidence of the prosecutrix PW-1 Chameli, it may be stated here that Hon'ble Supreme Court in so many cases has opined that in case of rape, corroboration is not required as a rule of law, but as a matter of prudence, which has been hardened into rule of law. Corroboration must be sought especially in a case where the woman raped having attained majority and furthermore, especially in those cases, where the prosecutrix is a grown up woman. 18. In the present case, since the prosecutrix PW-1 Chameli is a mother of children and she is about 40 years of age, therefore, the present case requires some sort of corroboration. 19. From the report Ex.P/3 lodged by PW-2 Ami Lal who is husband of PW-1 Chameli, it is much clear that on 10.7.1999 PW-1 Chameli went to the field and she was seen by PW-3 Gokal Ram along with the accused-appellant and Lalchand. From Fard Ex.P/1, it is also clear that she was found on 12.7.1999 at the Head of Suleman where she was waiting for arrival of a bus. PW-3 Gokal Ram as stated in his statement that when PW-1 Chameli was going with the accused-appellant, she was not making any hue and cry. From the statement of PW-5 Satya Pal who recovered PW-1 Chameli through fard Ex.P/1, it is further clear that she was sitting at head of Suleman. From the statement of PW-2 Ami Lal, it is also clear that PW-1 used to collect "Narma" and accused-appellant also used to do the same job along with the prosecutrix PW-1 Chameli. From the statement of PW-5 Satya Pal who recovered PW-1 Chameli through fard Ex.P/1, it is further clear that she was sitting at head of Suleman. From the statement of PW-2 Ami Lal, it is also clear that PW-1 used to collect "Narma" and accused-appellant also used to do the same job along with the prosecutrix PW-1 Chameli. Thus, from his statement, the fact that both were familiar with each other stands proved. 20. PW-1 Chameli in her statement has stated that on the relevant day i.e. on 10.7.1999, the accused-appellant came to the field and asked about her son Satish and she told him that he had gone to work; thereupon the accused-appellant requested him that we should bring Satish. Thereafter, PW-1 Chameli went with the accused-appellant. On the way, the accused-appellant gave sweets to her and after eating that sweets, she felt giddying. Thereafter the accused-appellant committed rape with her and she became unconscious. Thereafter, she was given one tablet by the accused-appellant and she came to senses and thereafter again, the accused-appellant committed rape with her. She has further stated that she asked the accused-appellant not to do that work, but he threatened her. In the cross-examination she admits following facts : (i) That when she was in the company of accused-appellant and another accused-Lal Chand, none was passing through that way. (ii) That her son Satish is aged 22 years and at the time of incident, she was wearing bangles of glass, but they were not broken. (iii) That they were sitting beneath a tree, but she cannot say what type of tree that was. (iv) That she was recovered from the head of Suleman. (v) That when she was going along with the accused-appellant and other accused-Lal Chand, she did not see anybody. (vi) That accused-Lal Chand brought food, but from where he brought food, she cannot say. 21. (iv) That she was recovered from the head of Suleman. (v) That when she was going along with the accused-appellant and other accused-Lal Chand, she did not see anybody. (vi) That accused-Lal Chand brought food, but from where he brought food, she cannot say. 21. In my considered opinion, looking to the facts and circumstances of this case just mentioned above, the statement of the prosecutrix PW-1 Chameli should not be believed on the point that the accused-appellant had sexual intercourse with her, against her will and on the point that she was abducted by playing fraud by the accused-appellant because of the following reasons : (i) That from the evidence on record, it appears that she was going in the company of the accused-appellant and another accused-Lalchand voluntarily and, therefore, the fact that she was abducted by the accused-appellant cannot be accepted. (ii) Further more the fact that she was going in the field in the company of accused-appellant under giddiness because of sweets cannot be accepted. (iii) From the statement of PW-1 Chameli, it is further clear that accused-appellant had sex with her twice and when the accused-appellant had sex with her second time, she was in senses and, therefore, to say that she was forcibly raped cannot be accepted. (iv) That fact that she went from her house on 10.7.1999 and she was recovered from Suleman head on 12.7.1999 and the fact that she did not make any hue and cry or complaint to anybody also go to show that she was consenting party with the accused-appellant right from the very beginning and what was being done between them, that was done with her tacit consent. (v) That fact that she was sitting along with the accused-appellant beneath tree itself goes to show that she was sitting with her own will and sitting beneath a tree shows that how deep friendship was between them and thus to say that she was raped forcibly appears to be wrong on the face of it. (vi) That she was matured lady of 40 years of age and therefore to say that she was kidnapped by the accused-appellant by making her unconscious cannot be accepted as she had sex with the accused-appellant twice and, therefore, all these circumstances go to show that she was consenting party. (vi) That she was matured lady of 40 years of age and therefore to say that she was kidnapped by the accused-appellant by making her unconscious cannot be accepted as she had sex with the accused-appellant twice and, therefore, all these circumstances go to show that she was consenting party. (vii) The absence of injuries is yet another factor to negative allegation of rape and to show that the accused-appellant had sex with her with her consent. (viii) Keeping in view the medical evidence which shows that the prosecutrix had been used to sexual intercourse, in order to accept her statement she was compelled, threatened or otherwise induced to go with the appellant, there should be corroboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the appellant's conviction. (ix) The medical evidence clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellant. From this, the only irresistible inference can be that the prosecutrix was consent party which would be reinforced by other circumstances. (x) From the statement of PW-2 Amilal husband of the prosecutrix, it is also clear that accused-appellant and PW-1 Chameli were familiar with each other and used to collect "Narma" and this fact also shows that she was a consenting party. 22. Thus, from the above discussion, the statement of prosecutrix PW-1 Chameli does not appear to be reliable one and trustworthy and does not inspire confidence and the same is not supported by independent any evidence and thus, no reliance can be placed on it. Looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the prosecutrix PW-1 Chameli was a consenting party and all the activities right from the beginning were going on with her tacit consent. 23. For the reasons stated above, it is held that the prosecution has not been able to prove its case against the accused-appellant for the offence u/ss. 23. For the reasons stated above, it is held that the prosecution has not been able to prove its case against the accused-appellant for the offence u/ss. 366 & 376 IPC and thus, the findings of learned Additional Sessions Judge convicting the accused-appellant for the said offences are liable to be set aside and this appeal deserves to be allowed and the accused-appellant is entitled to acquittal.Accordingly, this appeal filed by the accused-appellant-Ram Chander is allowed and the judgment and order dated 31.8.2001 passed by the learned Additional Sessions Judge, Sri Karanpur are set aside and the accused-appellant is acquitted of the charges framed against him. Since he is in jail, hg be released forthwith, if not required in any other case.Appeal allowed. *******