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2001 DIGILAW 1908 (RAJ)

State of Rajasthan v. Chunni Lal and Shankar Lal

2001-12-11

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 20.1.1997 passed by the Learned Sessions Judge, Rajsamand in Sessions Case No. 117/95 whereby he acquitted the accused-respondent for offence u/s. 376 & 342 IPC. 2. This appeal arises in the following circumstances : (i) On 16.6.1995, PW-2 Narmada, aged about 20 years (hereinafter referred to as the prosecutrix) lodged a written report Ex.P/3 with the Police Station Nathdwara before PW-7 Shyam Sundar stating that on 14.6.1995 at about noon, she was working in the field along with her father-in-law PW-6 Amba Lal and at that time, accused-respondent who was neighbourer to her came in the field and he took his father-in-law on some pretext and thereafter within 15 to 20 minutes, he came back and caught hold prosecutrix PW-2 Narmada and took her towards the field and put her on the ground and put her penis into her vagina forcibly and then committed rape with her and when she tried to cry, he gagged.her mouth, hearing her cries, her Devrani PW-3 Lila ran towards that place and lifted the accused-respondent who was lying over the prosecutrix PW-2 Narmada and thereafter he ran away. It is further stated in the report that after that incident, she came to her house and told the whole story to the members of the house and since mental condition of her husband was not normal, she was sent to her parents' house and today, her Devar PW-4 Laxman came to take her and she accompanied her and in these circumstances, the report was lodged on 16.6.1995 and at the time of lodging the report Ex.P/3, her Devar PW-4 Laxman was with her report. 3. On this report police chalked out regular FIR Ex.P/6 and started investigation. On report Ex.P/3, an endorsement was made by PW-7 Shyam Sundar that he was told that the accused-respondent had sex with the prosecutrix for 5 to 7 minutes and when semen oozed out, PW-3 reached there and accused-respondent was lifted and he ran away. 4. During investigation, PW-2 Narmada was got medically examined for the purpose of ascertaining her age and medical examination report is Ex.P/5 which revealed that she was 18 years of age and that report was admitted by the learned counsel for the accused and accused-respondent was arrested through Fard Ex.P/4 on 17.6.1995. 5. 4. During investigation, PW-2 Narmada was got medically examined for the purpose of ascertaining her age and medical examination report is Ex.P/5 which revealed that she was 18 years of age and that report was admitted by the learned counsel for the accused and accused-respondent was arrested through Fard Ex.P/4 on 17.6.1995. 5. Prosecutrix PW-2 Narmada was also got medically examined by PW- 8 Dr. Anees Ahmed for the purpose of ascertaining whether the rape was committed with her or not and her medical examination report is Ex.P/11 as per which two abrasions were found on the hand of the PW- 2 Narmada. 6. On 18.10.1995 the learned Sessions Judge framed charge for offence u/s. 376 IPC against the accused-respondent who pleaded not guilty and claimed trial. 7. During trial, as many as 9 witnesses have been produced on behalf of the prosecution and statement of accused-respondent was recorded u/s. 313 Cr.P.C. and no witnesses was examined in defence. 8. After conclusion of the trial, the learned trial Judge acquitted the accused-respondent through his judgment and order dated 20.1.1997 inter alia holding that : (i) That the accused-respondent in his statement u/s. 313 Cr.P.C. has admitted that he had sex with the prosecutrix PW-2 on the relevant day, but that was with her consent. (ii) That PW-2 Narmada was not aware of the fact that PW-3 Lila was also in the field. (iii) That PW-2 Narmada has nowhere stated in her statement that she made hue and cry and in cross-examination, she has admitted that PW-3 Lila came there not because of her cry. (iv) That the incident has taken place in the field of sugarcane and PW-2 Narmada has stated that he lifted her Peticot and Saree and in case sex with PW-2 Narmada would have been against her will, some sort of abrasions must have been found on her back etc. (v) The fact that after the incident PW-2 Narmada went to her parents' house and the fact that she stated that she would commit suicide after falling into well also go to show that she was feeling shame by the act which she committed with the accused-respondent. (v) The fact that after the incident PW-2 Narmada went to her parents' house and the fact that she stated that she would commit suicide after falling into well also go to show that she was feeling shame by the act which she committed with the accused-respondent. (vi) That since the incident took palce on 14.6.1995 and report was lodged on 16.6.1995 and after the incident, she went to her parents house, this fact also goes to show that it was not a case of forcible rape, but was a case of consent. (vii) The fact that her father-in-law PW-6 Amba Lal went to the house of parents of the PW-2 Narmada and said that she should be made understand also goes to show that the act was done by PW-2 Narmada along with the accused-respondent-Shankar Lal with her consent. (viii) That the statement of PW-2 Narmada on the point that she made hue and cry and thereafter PW-3 Lila reached there was no found reliable. (ix) The fact that the accused was aged 58 years and PW-2 Narmada was 35 years and she was grown up lady and, therefore, had there been sex against her will she would have pushed the accused-respondent and this incident would not have taken place. 9. Aggrieved from the said judgment and order this appeal has been filed by the State. 10. In this appeal, it has been argued by the learned Public Prosecutor that the findings of acquittal arrived at by the learned trial Judge are not based on correct appreciation of evidence and they deserves to be set aside and the accused-respondent deserves to be convicted for the offence charged against him. 11. On the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call for interference by this Court. 12. I have heard both and perused the record. 13. Before proceedings further it may be stated here that PW-2 Narmada has admitted following facts in her cross-examination : (i) That her husband is mental for last 7 years and she had no sex with him for last seven years. (ii) That after that incident, PW-3 Lila and her mother-in-law did not say that the matter be reported to the police or she did not say like that. (ii) That after that incident, PW-3 Lila and her mother-in-law did not say that the matter be reported to the police or she did not say like that. (iii) After that incident, she went to her parents' house and her father-in-law PW-6 Amba Lal came there and said that the prosecutrix PW-2 should be made understand. (iv) She had denied the fact that she had any intimacy with the accused-respondent. (v) While having sex with her, the accused-respondent sat over her legs and she made efforts to relieve herself from the clutches of the accused-respondent and wetted clothes were washed away as per saying of her father. (vi) That her Devarani PW-3 Lila reached on the spot suddenly. (vii) That accused-respondent had sex with her while she was in a position of sitting. In doing so, she did not receive any injury on her back, legs etc. 14. PW-6 Ambalal who is father-in-law of PW-2 has admitted that PW- 2 Narmada has two children aged about 13 and 7 years. 15. PW-7 Shyam Sundar is Investigating Officer. He has admitted that no sign of injuries were found on the person of the prosecutrix PW- 2 Narmada and the fact that her bangles were broken was not mentioned in the report Ex.P/3. 16. From the statement of PW-3 Lila it is also apparent that when she reached there she saw the accused-respondent having sex with PW- 2 Lila and when she reached there, she lifted the accused-respondent, thereafter, he ran away and she told this incident to her husband PW-4 Laxman. 17. In the case of rape, corroboration should ordinarily be required in the case of.woman having attained majority and who is habitual to sexual inter-course as in such cases, there is likelihood of her having levelled such accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time. 18. In the present case the factors which have been narrated by the learned Sessions Judge in his judgment and some of them have been mentioned above also go to show that it was a case of consent and when PW-2 Narmada was having sex with the accused-respondent, suddenly PW-3 Lila came there and thereafter PW-3 Lila separated them and thereafter the accused-respondent ran away and PW-2 felt guilty for the act which she committed. 19. 19. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon'ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant v. State of Karnataka, reported in AIR 1997 SC 3251 may be referred to. 20. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted. 21. In my considered opinion, the judgment of the learned Trial Judge is based on correct appreciation of evidence and the reasons which has been assigned by the learned trial Judge are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds. 22. Since the learned trial Judge has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Magistrate as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Judge as the trial Judge had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.For the reasons mentioned above, the present state appeal is dismissed after confirming the judgment and order dated 20.1.1997 passed by the learned Sessions Judge, Rajsamand.Appeal dismissed . *******