Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1450 (RAJ)

Lal Chand v. State of Rajasthan

2002-08-21

O.P.BISHNOI

body2002
Judgment O.P. Bishnoi, J.-This appeal has been filed against the Judgment dated 11-11-1991 delivered by the learned Additional Sessions Judge, Raising-nagar whereby the appellant Lal Chand has been found guilty for the offence under Section 376 of the IPC. He has been sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 1,000/-and for non-payment of fine Additional simple imprisonment for 2 months has been awarded. 2. According to the prosecution story, the accused during the night intervene 21st and 22nd December, 1988 at about 11.30 p.m. went to the house of PW. 1 Ram Lal situated in Rawala Mandi. Ram Lal, who earns livelihood by plying a jeep was away and his wife PW. 4 Sunder Devi was sleeping in the house along with her three kids. The accused knocked at the gate on the pretext that he has to deliver the keys and when the gate was opened by PW/4 Sunder Devi, he effected his entry in the house and pounced upon Smt. Sunder Devi. He tied a towel forcibly around her mouth, fell her down and had forcible sexual intercourse with her. After the incident a hue and cry was raised on account of which two neighbours PW/2 Bhagirath and PW/6 Moola Ram got awakened and came out of their respective houses. They saw the accused running in the light of the jeep standing opposite of the house of the prosecutrix. The cloth fastened around her mouth was taken away by PW/6 Moola Ram and then she narrated the incident to Bhagirath and Moola Ram. Next day on 22-12-1988 her husband PW/i Ram Lal returned to his house and she informed him about the incident. The FIR Ex. P/i was lodged with a delay of 4-5 days on 26-12-1988 at 2-30 p.m. A case under Section 378 of the IPC was registered and the challan before the Munsif and judicial Magistrate, Anoopgarh was filed under Section 450 and 376 of the IPC. The case was committed to the said trial Court. A charge under Section 376 of the IPC was framed against the accused. The accused pleaded not guilty to the charge. PW. 1 Ram Lal, PW. 2 Bhagirath, PW. 3 Manphool Ram, PW. 4 Sunder Devi, PW/ 5 Hanshraj, PW. 6 Moola Ram, PW. 1 Sohan Lal, PW. 8 Dr. Dalip Ram, PW. A charge under Section 376 of the IPC was framed against the accused. The accused pleaded not guilty to the charge. PW. 1 Ram Lal, PW. 2 Bhagirath, PW. 3 Manphool Ram, PW. 4 Sunder Devi, PW/ 5 Hanshraj, PW. 6 Moola Ram, PW. 1 Sohan Lal, PW. 8 Dr. Dalip Ram, PW. 9 Banarshi Das and PW/1O Surja Ram were examined by the prosecution in support of its story. No defence evidence was led by the appellant. In his statement recorded under Section 313 of the Cr. P.C. the appellant pleaded that he was innocent and was falsely implicated. The learned trial Court then heard the arguments and delivered the Judgment against which this appeal has been filed. 3. I have heard the learned Counsel for the appellant and the learned PP for the State and have perused the record of the trial Court. The learned Counsel for the appellant has argued that there has been in- ordinate delay in the lodging of the FIR and no satisfactory explanation has been provided for the delay. Moreover, it is submitted that the incident occurred at about midnight and it is highly suspected that the culprit could be identified. Regarding the source of light from the jeep, it is contended that the jeep was brought by the accused himself and it is unusual that he would leave the light on and risk his identification. In other words, it is argued that the story of identification in the light of the jeep has no connection with reality and cannot be believed. Further, it is argued that none of the three kids of the prosecutrix has been examined. Specially, it is argued that the eldest son Radha Krishna was aged 8 years and he could be a very good witness but he has been withheld. Further, it is argued that there are contradictions in respect of the cloth which was allegedly tied around the mouth of the prosecutrix. The learned Counsel for the appellant submits that in the totality of the circumstances the story has become highly suspected and the accused-appellant is entitled to acquittal. The learned PP has supported the conclusions drawn by the learned trial Court. 4. P.W. 5 Hanshraj, ASI has deposed that the FIR Ex. P/1 on 26-12-1988 was recorded by him when Sunder Devi and her husband Ram Lal came to lodge the same. The learned PP has supported the conclusions drawn by the learned trial Court. 4. P.W. 5 Hanshraj, ASI has deposed that the FIR Ex. P/1 on 26-12-1988 was recorded by him when Sunder Devi and her husband Ram Lal came to lodge the same. PW/7 Sohanlal, Constable and PW. 9 Banarshi Lal, Head Constable had deposed about sending certain sealed packets from the Police Station to the FSL at Jaipur, P.W. 8 Dr. Dalip Ram has stated that on 26-12-1988 Smt. Sunder Devi was examined by him and he found four bruises on her chest, which were recorded in the report Ex. P15, which was prepared by him. According to the witness, he was not in a position to opine as to whether forcible sexual inter-course had taken place with Smt. Sunder Devi in the recent past. PW. 10 Surja Ram, ASI has stated that the case was investigated by him. 5. PW. 1 Ram Lal is the husband of the prosecutrix and has stated that he was away from the village in her jeep and returned on 22-12-1988 and was informed by his wife about the incident. The witness has stated that the FIR Ex. P/i was lodged by him and his wife at the police station. He did not support the prosecution story to the extent that the underwear of the accused was taken in possession by the police on 29-12-1988 and was declared hostile on that account. 6. PW. 2 Bhagirath is a neighbour, who has stated that he was awakened by the cries of a woman and children and consequently, he rushed to the house of Ram Lal. According to the witness, he saw the accused Lal Chand running out of the Courtyard of the house of Ram Lal and meanwhile, Mool Chand also appeared at the scene. They found that the mouth of the prosecutrix was tied with a cloth which was removed by Mool Chand and then she told them that she had been raped by the accused. Similarly, PW. 6 Moola Ram another neighbour has stated that on account of the noise he was awakened and went to the house of Ram Lal. The witness has stated that he saw a person running out of the house of Ram Lal but could not recognise him. Similarly, PW. 6 Moola Ram another neighbour has stated that on account of the noise he was awakened and went to the house of Ram Lal. The witness has stated that he saw a person running out of the house of Ram Lal but could not recognise him. According to the witness, Bhagirath also came there and they found the prosecutrix whose mouth was covered with a cloth. The witness has stated that the cloth was taken away by him and then Smt. Sunder Devi told them that she was raped by the accused. She further told that prior to rape she was overpowered by the accused, who tied the “ODHNA” around her mouth. P.W. 3 Manphool Ram is a “Motbir”, in whose presence the “peticoat” of Sunder Devi was taken by the police. 7. P.W. 4 Sunder Devi is the prosecutrix herself She has stated that her husband Ram Lal was out to some other village with the jeep and at about 10-11 in the night while she was asleep, the accused knocked and said that he had come to deliver the keys. When she opened the gate, the accused entered the house tied her mouth with a “SAFA” and fell her down, and thereafter he forcibly raped her. She has stated that her kids raised hue and cry, on account of which Mool Chand and Bhagirath came and the accused took to his heels. Further, she has stated that on the next day her husband came and she informed him about the incident. The witness has stated that the report was lodged with a delay of five days because the parents of the accused were threatening them. During cross-examination it has come that the accused was distantly related to her and in the recent past used to come to her house along with her husband and hence, he was known to her. 8. After considering the entire evidence, I find that the contention in respect of the correct identification of the accused raised by the learned Counsel for the appellant cannot be accepted. Even if , it is disbelieved that there was no light from the jeep, the testimony of Smt. Sunder Devi alone is sufficient to record a finding beyond any shadow of doubt that it was the appellant, who was the culprit. Even if , it is disbelieved that there was no light from the jeep, the testimony of Smt. Sunder Devi alone is sufficient to record a finding beyond any shadow of doubt that it was the appellant, who was the culprit. As pointed out earlier, Smt. Sunder Devi has stated that the accused was distantly related to her and for 2-3 days prior to the incident he used to come to her house along with her husband. Further, from the testimony of Smt. Sundar Devi it is clear that the accused while standing out-side shouted that he had come to deliver the keys and in this way Smt. Sunder Devi was able to recognize his voice as well. In these circumstances, it cannot be said that there was any doubt in respect of the identity of the person who committed the offence. 9. It is true that 8 years old son of the pro secutrix (Radha Krishna) has not been examined by the prosecution but non-examination of the Radha Krishna cannot be fatal for the reliability of the prosecutrix. Smt. Sunder Devi’s testimony in this respect is worth believing and I find no reason to disbelieve her. 10. There is some confusion as to whether her mouth was fastened with a “SAFA” or a “ODHNA” but this inconsistency is so insignificant that not much significance cannot be attached to it. It is quite possible that due to darkness she was not able to see the cloth by which the accused was able to cover her face. 11. The inordinate delay in lodging the FIR has not been explained properly. In the FIR Ex. P/1 the reason is given and it is stated that the delay was on account of the fact that PW/1 Ram Lal continued to search the accused for 4-5 days. Ram Lal, in his statement, has not explained the delay, as no question was put to him in respect of the delay. Smt. Sunder Devi has stated that on account of threatenings issued by the parents of the accused, there was delay in lodging the FIR. This explanation is contrary to the one which finds place in the FIR. However, otherwise believable evidence produced by the prosecution cannot be discarded simply on account of non-explanation of the delay in lodging the FIR in the facts and circumstances of this case. 12. This explanation is contrary to the one which finds place in the FIR. However, otherwise believable evidence produced by the prosecution cannot be discarded simply on account of non-explanation of the delay in lodging the FIR in the facts and circumstances of this case. 12. The prosecution story is duly cor-roborated by P.W. 2 Bhagirath and PW. 6 Moola Ram, who are the neighbours and there is no reason to not to believe them. PW. 2 Bhagirath is aged about 68 years and no reason has come in the light of which it can be inferred that he was not a truthful witness. Similarly, no reason whatsoever has come to disbelieve the testimony of PW. 4 Sunder Devi. From the testimony of Dr. Dalip Ram, it is clear that bruises, numbering four, were found at the chest of the prosecutrix when she was examined on 26-12-1988. These injuries are consistent with the theory of rape. 13. In the result, I find no merit in this appeal and the same is hereby dismissed. The accused is on bail and his sentence was suspended by this Court, his bail bond are cancelled and the learned trial Court shall take steps to get him arrested and commit him to jail in order to serve the sentence awarded to him.