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Rajasthan High Court · body

2003 DIGILAW 903 (RAJ)

Mangaliya (Shree) v. State of Rajasthan

2003-07-02

O.P.BISHNOI

body2003
Honble BISHNOI, J.–These appeal has been filed against a judgment dated 2.4.2003 of the learned Additional Sessions Judge, (Fast Track) Pratapgarh by which the appellant has been found guilty for the offence punishable under Section 376 of the IPC. He has been awarded rigorous imprisonment for seven years and a fine of Rs. 5000/- and for non-payment of fine, simple imprisonment for six months has been ordered. The case was listed on an application for suspension of sentence but since the record has been received, the appeal has been heard on merits finally. (2). First the facts. Smt. Kuri (PW-1), on 7.7.2000 at 8.45 pm, lodged a typed report Ex.P/1 at police station Arnod. According to the report she had gone to collect fire-wood on 5.7.2000 in the jungle of the village where she was forcibly ravished by the accused. Further, it was stated that on the next day i.e. 6.7.2000, after evening while she was sleeping in her house the accused again came and had forcible sexual intercourse with her. During the act she raised hue and cry and hearing her cries the members of her family as well as other villagers came on the spot and the accused was caught by them and thereafter the accused was thrashed by the villagers. According to the FIR earlier many a times on previous occasions Smt. Kuri was raped by the accused. According to the report the `bicycle, `Pagadi, `Lathi and `Dhariya belonging to the accused were still lying at her house. A case under Section 376 of the IPC was registered at police station Arnod. The statement of Smt. Kuri was recorded under Section 161 of the Cr.P.C. on 7.7.2000 itself wherein the stated that on 5.7.2000 the accused made a proposal for sex to which the replied that if her brother-in-law come to know about the same, he will be enraged, to which the accused replied that he will take care of the same. Thereafter, the sexual intercourse took place. She further stated that some two months prior to that also the accused had sex with her in her house and the fact was discovered by her brother-in-law Ramchandra (PW-4), on account of which she received a beating at the hands of Ramchandra. Thereafter, the sexual intercourse took place. She further stated that some two months prior to that also the accused had sex with her in her house and the fact was discovered by her brother-in-law Ramchandra (PW-4), on account of which she received a beating at the hands of Ramchandra. Regarding the alleged incident dated 6.7.2000, she stated that though the accused came to her house but on account of arrival of her son Kana, nothing happened and the accused was caught by the villagers. At the request of the Investigating Officer the statement of Smt. Kuri was also recorded under Section 164 of the Cr.P.C. on 4.8.2000 wherein she neither alleged in respect of any rape on 5.7.2000 nor on 6.7.2000. Still the challan was filed and the accused was put to trial. The accused pleaded not guilty to the charge. Fifteen witnesses were examined by the prosecution in support of its story. No defence evidence was led. The learned trial court heard the arguments and delivered the judgment on 2.4.2003 as indicated above. According to the charge which was framed on 25.1.2003, the accused was charged form committing rape on two occasions. The first charge pertained to the incident dated 5.7.2000 when the accused allegedly committed rape at about 2 pm in the jungle of the village. Further, charge was to the effect that the accused committed rape allegedly on 6.7.2000 after the evening in the house of the prosecutrix. Regarding both the events the accused has been found guilty. (3). I have heard the learned counsel for the appellant as well as learned Public Prosecutor for the State and I have gone through the record of the trial court. I find that the appeal deserves to the allowed. (4). Regarding the incident dated 5.7.2000 PW-1 Smt. Kuri is the sole witness who has tried to corroborate the prosecution story. Regarding the incident dated 6.7.2000 apart from PW-1 Smt. Kuri, her 16 years old son Kaniram @ Kana (PW-2), Ramchandra (PW-4), Shambhu (PW.6), Deva (PW-9), Prabhu (PW-10) and Jeewa (PW-14) were examined. After considering the evidence of all these witnesses I find that there was no jurisdiction to arrive at the finding of guilt against the appellant. Regarding the incident dated 6.7.2000 apart from PW-1 Smt. Kuri, her 16 years old son Kaniram @ Kana (PW-2), Ramchandra (PW-4), Shambhu (PW.6), Deva (PW-9), Prabhu (PW-10) and Jeewa (PW-14) were examined. After considering the evidence of all these witnesses I find that there was no jurisdiction to arrive at the finding of guilt against the appellant. PW-6 Shambhu, PW-9 Deva, PW-10 Prabhu and PW-14 Jeewa are said to be the persons who allegedly reached the house of the prosecutrix on 6.7.2000 in the night after hearing her cries and allegedly they caught the accused there and Smt. Kuri narrated the story of rape to them. However, all the four have turned hostile and have not corroborated that any such incident of rape took place. PW-4 Ramchandra is said to be a brother of the husband of Smt. Kuri and he has stated that during night when he heard the noise and visited the house of the prosecutrix the prosecutrix told him that she was raped by the appellant. However, the witness has not supported the version that the accused was present or was caught by the villagers. In cross-examination he has stated that Smt. Kuri simply told that her hand was caught by the appellant and she was pulled by him. In this way during cross-examination the witness has stated that the story of rape was not narrated to him by Smt. Kuri. The testimony of PW-2 Kaniram @ Kana, who happens to be the 16 years old son of the prosecutrix, is to the effect that in the evening when he returned to the house, he found that the accused was quarreling with his mother upon which he raised a cry to the effect that the accused was quarreling with his mother, as a result of which Shambhu, Mohan and Prabhu came. During cross-examination also he has deposed about some quarrel between Smt. Kuri and the appellant. Nowhere he has stated that the act of rape took place. (5). In this way the testimony of Smt. Kuri alone remains to ascertain as to whether she was raped on 5.7.2000 and again on 6.7.2000 by the accused appellant. In her examination-in-chief Smt. Kuri has stated that she had gone to the jungle to collect wood where the accused performed ``Khota Kam with her. (5). In this way the testimony of Smt. Kuri alone remains to ascertain as to whether she was raped on 5.7.2000 and again on 6.7.2000 by the accused appellant. In her examination-in-chief Smt. Kuri has stated that she had gone to the jungle to collect wood where the accused performed ``Khota Kam with her. She has stated that all her clothes including her `Saree were first taken off by the accused and after making her total naked the ``Khota Kam was performed. According to the witness she pleaded with the accused that if her brother-in-law comes to know about the act he will be annoyed, to which the accused assured her that he will take c are of the brother-in-law. Further, the witness has stated that two days thereafter at about 8 pm the accused came to her house and after disrobing her completely, started to have `Khota Kam with her. The came and raised alarm, upon which Mobji, Deva, Amrit, Nakuda, Shambhu and Ramchandra appeared and they gave a beating to the accused. She has further stated that thereafter, she went to the police station and lodged the report Ex.P/1. In this way, it is clear that there s no evidence of any resistance by Smt. Kuri to the alleged sex act. Regarding the incident dated 5.7.2000, she has deposed that the only thing which she said was that if her brother-in-law comes to know that she act, he would be annoyed and in all likelihood she will receive a beating from her brother-in-law. In other words, apart from the fear of brother-in-law, she had not objection to the sex act. Similarly, regarding the incident dated 6.7.2000, she has stated that the accused came while she was sleeping. He removed all her clothes and thereafter, the ``Khota Kam started. She has stated that meanwhile her son PW-2 Kana appeared and Kana raised hue and cry, whereupon the said 5-6 person came rushing. Nowhere in her examination-in-chief she states that she was opposed to the sex act. The learned trial court on the basis of cross-examination of the witness has observed that she herself could not raise any hue and cry on 6.7.2000, as according to her, the accused was able to shut her mouth. This allegation of shutting the mouth neither finds place in the FIR nor in the entire examination-in-Chief. The learned trial court on the basis of cross-examination of the witness has observed that she herself could not raise any hue and cry on 6.7.2000, as according to her, the accused was able to shut her mouth. This allegation of shutting the mouth neither finds place in the FIR nor in the entire examination-in-Chief. In the FIR she has stated that on 6.7.2000, she herself raised he and cry, hearing which the other persons were attracted to the spot. From her deposition in the court it is evident that the mention of raising cries by her in the FIR is false. As pointed out earlier, according to the FIR some two months prior to the lodging of the FIR the accused many a times had established sexual relationship with her. She has admitted in her cross-examination that regarding the earlier sex acts she never complained to anybody. In her cross-examination, she has stated that regarding the incident dated 5.7.2000, she had complained forthwith to her brother-in-law. This deposition is false because the FIR Ex.P/1 does not say that the incident dated 5.7.2000 was reported by her to her brother-in-law. Nor the brother-in-law Ramchandra says so during his testimony. (6). As pointed out earlier, according to the FIR the accused was beaten on 6.7.2000 by the villagers and close relations of the prosecutrix was apprehensive that on account of the beating received, the accused was likely to lodge a report with the police and hence, they should also lodged an FIR. Smt. Kuri admitted the said suggestion as correct. (7). Further, during cross-examination Smt. Kuri changed the story and denied that she was every criminally assaulted by the accused period to 5.7.2000. Regarding the allegation in this respect in the FIR Ex.P/1, she deposed that the said allegation in the FIR was false. On account of this type of deposition on the part of the prosecutrix it is clear that the FIR Ex.P/1 cannot be accorded the sanctity to which an otherwise innocent report usually is entitled. Smt. Kuri has deposed that during the rape she received serious injuries on her back, buttocks and arms. She has specifically stated that all these injuries were shown by her to the Doctor when she was medically examined. Smt. Kuri has deposed that during the rape she received serious injuries on her back, buttocks and arms. She has specifically stated that all these injuries were shown by her to the Doctor when she was medically examined. However, from the testimony of the Medical Officer as well as the report Ex.P/5 it is evident that no such injuries were found on the person of Smt. Kuri. She has stated that she gave teeth bite and nail injuries on the face of the accused. However, the Arrest Memo ex.P/16 does not show that any such injuries were found on the person of the appellant. (8). In this way, it is evident that Smt. Kuri has been rather economical in telling the truth and is not at all a witness of any worth. Moreover, as pointed out earlier in her examination- in-chief she does not say that she was not a consenting party to the sexual intercourse. As pointed out earlier regarding the act dated 5.7.2000 her only concern was that if her brother-in-law comes to know of the act, he will beat her. Regarding the act dated 6.7.2000, she does not say that she resisted or objected. On both the times she says that before the sex act, all her clothes were taken off by the accused. Nowhere she states that she objected to it. Regarding the act dated 6..7.2000, she simply states that while the sex act was on, her son appeared on the scene and it was he, who raised cries. According to the FIR and the charge which was framed, Smt. Kuri was raped consecutively on 5.7.2000 as well as on 6.7.2000. However, during her deposition in court, she has stated that there was clear hiatus of two days between the two alleged acts. (9). As pointed out earlier, the alleged tow incidents for which the appellant has been charged occurred on 5.7.2000 and 6.7.2000. However, Or FIR was lodged prior to the evening of 7.7.2000. There is no explanation whatsoever about this delay. Instead of explaining the delay Smt. Kuri in an adamant manner has insisted that the FIR was lodged at the police station on 6.7.2000 itself. (10). In view of the foregoing discussion it is more than evident that no forcible sexual intercourse took place with Smt. Kuri. If there was any sexual intercourse it was with her consent. Instead of explaining the delay Smt. Kuri in an adamant manner has insisted that the FIR was lodged at the police station on 6.7.2000 itself. (10). In view of the foregoing discussion it is more than evident that no forcible sexual intercourse took place with Smt. Kuri. If there was any sexual intercourse it was with her consent. The Chemical Analysis Report from the State Forensic Science Laboratory,Rajasthan Ex.P/18 is to the effect that the smear which was sent for examination did not contain any human semen in it. As per Ex.P/18 human semen was detected from the `Ghagra sent for examination but Smt. Kuri in her examination-in-chief has denied that `Ghagra or anything was given by her to the police for chemical examination. She is a married woman of thirty-five years and presence of semen in `Ghagra alone cannot become basis for a finding of guilt of the offence punishable under Sec. 376 of the IPC. In totality, it is evident that there was absolutely no basis, whatsoever, for the learned trial court to arrive at a finding of guilt in such a case. The learned Judge is a Additional Sessions Judge and it is expected that on account of his long association with law he is well-versed with the criminal jurisprudence of the country. However, it appears that the learned Judge is completely innocent it this respect. (11). In the result, the appeal is allowed. The judgment dated 2.4.2003 is setaside. The appellant is acquitted of the charge. He shall be released forthwith if not needed in connection with any other case.