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2001 DIGILAW 585 (RAJ)

Ramawatar : Mool Chand v. State of Rajasthan

2001-04-11

KHEM CHAND SHARMA

body2001
JUDGMENT 1. - These two Criminal Appeals have been preferred by the accused-appellants Ramavatar and Mool Chand challenging the judgment dated 15.6.1999 passed by the Additional Sessions Judge, Baran, whereby, he has convicted the accused appellant Ramavatar under Section 376 read with Section 376(2) explanation (I) and Section 354 Indian Penal Code and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one year rigorous imprisonment and convicted the accused appellant Mool Chand under Section 376(2) read-with explanation (I) and Section 354 Indian Penal Code and sentenced him to undergo seven years rigorous imprisonment and a fine of Rs. 5,00/-, in default of payment of fine, to further undergo six months rigorous imprisonment. Since both the appeals arise out of the same judgment, they are being disposed of by this common judgment. 2. The prosecution case, in nut-shell is, that on 17.3.1995 at 10.00 RM. Sita Bai wife of Ghasi Lal aged 32 years alongwith Ramji Lal came at Police Station, Baran and lodged a written report Ex.P 1, stating therein that she had sold bullock cart to Mool Chand accused. In the evening, while she was going to collect money from Mool Chand at his hut she saw Mool Chand and Ramawater sitting at the Well of Mool Chand. When she demanded money from Mool Chand, Mool Chand and Ramawater both asked her to go ahead, where they will give her money. On saying so, when she proceeded further, accused Ramawatar immediately followed and caught her breasts and dragged her in the field having water crop, made her to fall on the ground, sat on her chest, pressed her breast and committed rape on her. She tried to save herself, but she failed in her efforts. On hearing her cries, Ramji Lal and Mahaveer came there. Both the accused also tried to gave beating to Ramji Lal and Mahaveer. 3. On the basis of this report police registered a case vide F.I.R. No. 98/1995 Ex.P. 2 for offence under Section 376 I.P.C.and proceeded to investigate the case. During investigation police got the prosecutrix medical examined vide Ex.P. 7, prepared site plan Ex.P. 4, seized Petti-coat of the prosecutrix vide Ex.P. 3, arrested accused Ramawater vide Ex.P. 9 and seized his under-wear vide Ex.P. 10. During investigation police got the prosecutrix medical examined vide Ex.P. 7, prepared site plan Ex.P. 4, seized Petti-coat of the prosecutrix vide Ex.P. 3, arrested accused Ramawater vide Ex.P. 9 and seized his under-wear vide Ex.P. 10. Ramawater was also medically examined regarding his capability to do intercourse, the report of which is Ex.P. 8. The police also recorded the statements of the witnessess under Section 161 Cr.P.C. 4. After completion of investigation, the police submitted a charge-sheet against the accused appellants under Section 376, 354 I.P.C.in the Court of Judicial Magistrate No. 2, Baran, who committed the case to the Court of Sessions. 5. The learned trial Court after considering the material on record, framed charges against the accused appellant. The charge were read-over to them, to which they pleaded not guilty and claimed trial. 6. During trial, the prosecution in support of its case examined PW 1 Sita Bai, PW 2 Shambu Lal, PW 3 Ramji Lal, PW 4 Ghasi Lal husband of prosecutrix, PW 5 Bal Ram, PW 6 Chouth Mai, PW 7 Dr. Ajay Johari and P.W. 8 Iqbal Ahmad. Thereafter, the trial Court examined the accused appellants under Section 313 Cr.P.C. for the purposes of enabling them personally to explain the circumstances appearing against them. The accused appellants did not choose to examine any witnesses in defence. After completion of the trial, the trial Court convicted and sentenced the accused appellants as aforesaid. 7. In assailing the judgment of the learned trial Court, the learned counsel for the accused appellant has contended that from the evidence of the prosecutrix as regards commission of rape on her, if scrutinised in the light of medical evidence, it cannot be said that the accused appellant Ramawater committed rape on her. He has further contended that the prosecutrix herself has contradicted on material aspects as would be evident from a bare perusal of the F.I.R. Ex.P. 1 and her statement recorded during trial. He has further contended that findings arrived at by the trial Court are based on mis-reading and non-reading of the evidence. In this back ground, the learned counsel for the accused appellants vehemently argued that the learned trial Court has committed serious error of law in recording finding of guilt against the accused appellants and, therefore the accused appellants deserve to be acquitted. 8. In this back ground, the learned counsel for the accused appellants vehemently argued that the learned trial Court has committed serious error of law in recording finding of guilt against the accused appellants and, therefore the accused appellants deserve to be acquitted. 8. On the other hand, the learned Public Prosecutor has supported the judgment of the trial Court and submitted that the appeal be dismissed. 9. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and also perused the impugned order and record of the case. 10. The law is well settled on the point that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime and there is no rule of law that testimony cannot be acted without corroboration on material particulars and her testimony has to be appreciated on the principles of probabilities just as the testimony of any witness and further, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony. 11. In the case in hand, if the statement of the prosecutrix is scrutinised in the light of the above settled position of law, her statement in my opinion does not inspire confidence so as to hold the accused appellants guilty of the offence of rape or gang rape. The prosecutrix has contradicted herself on material particulars resulting into prosecution story being suspicious and untruest worthy. In the written report Ex.P. 1 the presecutrix Sita Bai has no where mentioned that Mool Chand caught hold her hand, while Ramawater pressed her breasts and then both made her to fall on the ground and Mool Chand caught her hand while Ramawater committed rape on her. But in her statement, she has deposed that Mool Chand caught her hands, while Ramawater pressed her breasts and committed rape on her. This overt act of Mool Chand did not find place in her written report, which is her earliest version. Thus, it appears that she made improvement on material particulars and tried to implicate Mool Chand in the commission of offence. 12. This overt act of Mool Chand did not find place in her written report, which is her earliest version. Thus, it appears that she made improvement on material particulars and tried to implicate Mool Chand in the commission of offence. 12. No doubt, explanation-I appended to Section 376 I.P.C. provides that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Sub-section 2 of Section 376 I.P.C. But the learned trial Court has not considered the aspect of common intention of both the accused appellants. Further, the learned trial Court has even not considered the important aspect of the case i.e. improvement in the statement of the prosecutrix. 13. That apart, the prosecutrix in her statement has categorically stated that during incident she received injuries on her wrist and on her back side. She has also stated that she tried to save herself. This part of her statement goes to show that she resisted when the accused committed rape on her. She has also stated that blood also oozed out on her wrist. But, surprisingly enough, the medical officer PW 7 Dr. Ajay Johari has categorically stated that he did not find any external injury on private parts and other parts of the body of the prosecutrix. Thus in my opinion, the version of the prosecutrix did not find corroboration by medical evidence as well. Further, the Petti-coat which she was wearing at the time of alleged rape and which was seized by the Investigation Officer was sent for chemical examination to the Forensic Science Laboratory, but the prosecution has not been able to produce the F.S.L. report during trial of the case. 14. The so called eye witnesses of the incident namely, PW 3 Ramji Lal and PW 5 Bal Ram have not supported the prosecution version and they have been declared hostile. They have categorically stated that they did not see accused Mool Chand holding the hands of Sita Bai while, Ramawater committing rape on her. They have also stated that they did not see Ramawater committing rape on her. It is also worth mentioning that Mahaveer, the alleged eye witness of the incident has not been examined by the prosecution. They have categorically stated that they did not see accused Mool Chand holding the hands of Sita Bai while, Ramawater committing rape on her. They have also stated that they did not see Ramawater committing rape on her. It is also worth mentioning that Mahaveer, the alleged eye witness of the incident has not been examined by the prosecution. PW 4 Ghasi Lal husband of the prosecutrix has stated that Ramji Lal, Mahaveer and her wife Sita Bai narrated the incident to him and he went to the Police Station alongwith his wife to lodge the report of the incident. But Sita Bai in her cross-examination has stated that only Ramji Lal, Mahaveer and Durga Shankar went with her to lodge the report of the incident at Police Station. It is surprising to note that even husband of the prosecutrix did not care to accompany her wife, a victim of rape, to the Police Station to lodge a report as is evident from a perusal of the endorsement made by the police in Ex.P. 1 the report of Sita Bai from A to B which clearly shows that Sita Bai went to the Police Station alongwith Ramji Lal only and submitted a written report Ex.P. 1. It is also surprising to note that Ghasi Lal himself was present at his home, but instead going himself to collect money from accused Mool Chand, he sent his wife in the evening to collect money. 15. The alleged place of incident happens to be a field just adjoining the thorough-fare as is evident from a perusal of site plan Ex.P. 4. PW 1 Sita Bai in her cross-examination has admitted that there exits thorough-fare between Village Mathani and hut of Mathani and that thorough-fare is being used by the general public in the evening also. Likewise, PW 4 Ghasi Lal in his cross-examination has admitted that the thorough-fare between the Village Mathani and hut of Mathani is being used by the Public even uptil night. As such, the fact that the alleged place of incident is adjoining to thorough-fare, which is being used by the general public uptil night time also creates doubt on the prosecution story about the commission of rape. 16. As such, the fact that the alleged place of incident is adjoining to thorough-fare, which is being used by the general public uptil night time also creates doubt on the prosecution story about the commission of rape. 16. For the aforesaid reasons, I find it difficult to accept the version of the prosecutrix on its face value and there is no other evidence direct or circumstantial which would lend assurance to her testimony. Thus, in my considered view, the trial Court, solely on the basis of the evidence of the prosecutrix, has wrongly held that sexual assault amounting to gang rape was committed on the prosecutrix by the accused appellants. 17. In the result, both the appeal are allowed and the conviction and sentence awarded to the accused appellants by the trial Court is set-aside and they are acquitted of the charges levelled against them. Accused Ramawater is in jail, he be released forthwith, if not required in any other case. Accused Mool Chand is on bail and his bail bonds are discharged.Revision petition partly allowed. *******