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2004 DIGILAW 1306 (RAJ)

Tara Chand v. State of Rajasthan

2004-09-10

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This Criminal Appeal under section 374 Criminal Procedure Code arises out of the judgment and order dated 12.9.2001 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Bhartpur, by which the learned trial Judge has convicted and sentenced the accused-appellant in the following manner : Offence under which the appellant has been convicted Sentence awarded U/s. 376 Indian Penal Code 7 years rigorous imprisonment with a fine of Rs. 200/-, in default thereof to further undergo 1 month's simple imprisonment 5 years rigorous imprisonment with a fine of Rs. 200/-, in default thereof to further undergo one month's simple imprisonment. Both the sentences were ordered to run concurrently. 2. On 11.4.2000 at 3.15 p.m., complainant-Hari Singh, PW-2 submitted a written report, Ex.P/5 at Police Station, Kotwali, Kumher with regard to an incident alleged to have taken place on 10.4.2000 at about 11.00 a.m.-12.00 noon. In the report, it was alleged his niece Longwati aged about 14-15 years as alone in the house and all the family members had gone to Delhi. Having found her alone in the house, the accused-appellant came there and committed rape on her. Soon appellant came out of the house after committing rape, his son Bachan Singh came there and an hearing cries of Longwati, Bachan Singh caught hold of accused and started beating him. The prosecutrix feeling shame, committed suicide. According to the complainant, the prosecutrix after having been ravished by the accused, did not want to remain alive. He alleged that because of political rivalary, some persons of the village, with a view to destroy the evidence, got the cremation of the deceased done. The complainant alleged that he came to know of the incident in the previous night telephonically. On his return, Bachan Singh and Man Singh disclosed the entire facts. 3. Ex.P/6 and proceeded with the investigation. In the course of investigation, the police inspected the site and prepared site plan, Ex.P/4 and seized a pair of shoes and a rope. The investigating officer recorded the statements of witnesses under section 161 Criminal Procedure Code and on completion of entire formalities as to the investigation, submitted challan against the accused persons. 4. In the course of investigation, the police inspected the site and prepared site plan, Ex.P/4 and seized a pair of shoes and a rope. The investigating officer recorded the statements of witnesses under section 161 Criminal Procedure Code and on completion of entire formalities as to the investigation, submitted challan against the accused persons. 4. The learned trial Court, on the basis of evidence and material collected during investigations and placed before it, framed charges against the accused-appellant and 6 co-accused for offence under sections 450, 376, 306 and 201 Indian Penal Code. 5. In order to prove its case, the prosecution examined as many as 13 witnesses and got exhibited some documents. After the prosecution evidence was over, the accused were examined under section 313 Criminal Procedure Code The accused-appellant examined DW-1 Ram Kishan and DW-2 Ishari Prasad in their defence. 6. At the conclusion of trial, the learned trial Judge did not find the charge established as against co-accused and accordingly, acquitted time of the charges under section 201 Indian Penal Code. However, the learned trial Judge found the charges proved against the appellant and accordingly convicted and sentenced him in the manner stated hereinabove. Hence, this appeal against conviction. 7. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor and have gone through the impugned judgment, evidence and material on record. 8. In assaulting the conviction, the first argument advanced by Mr. S.C. Sharma, learned counsel for the appellant is that the FIR has been lodged with an inordinate delay, for which the prosecution has not offered any explanation, much less satisfactory explanation. Learned counsel argued that the FIR was lodged after due deliberations, thereby giving colourable version to the incident. He submitted that the incident alleged 1 o have taken place on 10.4.2000 in between 11.00 a.m. and 12.00 noon, whereas the report of the alleged incident was lodged on 11.4.2000 at 3.15 p.m. i.e. after a lapse of about 27-28 hours of the incident. This inordinate delay is fatal to the prosecution case and raises serious doubts on the genesis of the prosecution case. 9. I have considered the above argument. Having scanned the evidence and material on record, it appears to me that there cannot be said to be any delay in informing the police of the incident. This inordinate delay is fatal to the prosecution case and raises serious doubts on the genesis of the prosecution case. 9. I have considered the above argument. Having scanned the evidence and material on record, it appears to me that there cannot be said to be any delay in informing the police of the incident. If at all there was any delay, the prosecution has been able to explain the same satisfactorily. Undisputedly, the elder members of the family of deceased prosecutrix were not present at their home on the day of incident. They had gone to Delhi to pay homage to the bereaved family in their relation. As per the prosecution case. After the prosecutrix was ravished, she committed suicide. Immediately after the commission of rape, PW-3 Bachan Singh and PW-4 Man Singh, both cousions of -the prosecutrix made her to understand that action would be taken after the family members return home and that they have called them telephonically. Having received the message, PW-1 Girraj Singh, father of the prosecutrix, PW-6 Smt. Prem, mother of the prosecutrix and others returned in the evening at about 7.00-8.00 p.m., while PW-2 Hari Singh, uncle of the prosecutrix stayed there for 'Pagari ceremony' and returned at 4.00 a.m. PWs 3 and 4 waited for arrival of their parents and others. The prosecution evidence further goes to show that PW-1 Girraj after he returned home at 7.00-8.00 p.m. waited for arrival of his brother Hari Singh. After all the family members collected, the FIR was lodged. The explanation offered thus appears to be plausible. In the cases involving sexual assault, the delay, if any, in report the matter to the police by itself is not fatal to the prosecution case. It is well settled that the Courts cannot over look the fact that in sexual offences delay in lodging the FIR can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and make a complaint about the incident which concerns the reputation of the prosecutrix and honour of her family members. It is only after giving a cool thought that a complaint of sexual offence is generally lodged. In the case at hand, as stated above, the prosecutrix after being raised, committed suicide. It is only after giving a cool thought that a complaint of sexual offence is generally lodged. In the case at hand, as stated above, the prosecutrix after being raised, committed suicide. Her entire family members collected in the next morning and after giving cool thought to every aspect including honour of their family, lodged FIR at about 3.15 p.m. Even if there is some delay in informing the police about the commission of sexual offence, the same cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the case at hand, the sequence of events soon f -flowing the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. The argument of the learned counsel, therefore, stands rejected. 10. It was next contended by Mr. Sharma that appellant has been falsely involved in the case on account of enmity. Learned counsel has taken the plea of alibi and contended that on the day of incident, the accused was not present in the village. Referring the evidence of DW-2 Ishari Prasad and the marriage card, Ex.D/6 concerning marriage of his daughter scheduled for 24.4.2000, learned counsel argued that on 8.4.2000 the accused- appellant had gone to Gwalior for distributing the marriage cards and he was not present in the village on 10.4.2000. 11. I have given my thoughtful consideration to the above argument. Having gone through the evidence available on record it appears that no question to any of the prosecution witnesses was put as to the enmity of the complainant side either with the accused- appellant or with his father. 11. I have given my thoughtful consideration to the above argument. Having gone through the evidence available on record it appears that no question to any of the prosecution witnesses was put as to the enmity of the complainant side either with the accused- appellant or with his father. In other words, no question as regards enmity between the parties was put to any of the witnesses in cross-examination. Therefore, it cannot be believed that appellant has been falsely involved on account of enmity. Even, at the time of cross-examination, no suggestion was made as regards false implication of the appellant due to enmity. In this view of the matter, there appears to be no reason to doubt the testimony of PW-4 Man Singh, who has witnessed the commission of offence of rape and PW-3 Bachan Singh who reached at the place of incident just at the time of incident and saw the accused-appellant in semi naked position and that victim narrated the incident to him at that very time. As such the argument of the learned counsel that appellant has been falsely involved in a case of sexual offence is worthy of rejection. 12. As regards the argument of learned counsel for the appellant that it was a case of consent, suffice it to say that in view of plea of alibi having been. raised, no question of any consent by the deceased prosecutrix does arise. 13. It has also been contended that name of PW-4 Man Singh as an eye-witness the incident does not find place in the FIR, Ex.P/5 and therefore, his evidence deserves to be discarded. Referring to the prosecution evidence, learned counsel for the appellant has pointed out some discrepancies in the statements of some witnesses. 14. As far non-mentioning of name of an eye-witness in the FIR is concerned, it need be observed that there is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion. However, in the case at hand the name of Man Singh find place in the FIR and the informant on furnishing full information of the incident to him by.PWs 3 and 4 lodged the report and the said fact is mentioned in the report. However, in the case at hand the name of Man Singh find place in the FIR and the informant on furnishing full information of the incident to him by.PWs 3 and 4 lodged the report and the said fact is mentioned in the report. PW- 3 Bachan Singh and PW-4 Man Singh had no reason to involve the appellant in the commission of crime. Merely because the eye-witnesses happen to be close relations of the deceased prosecutrix, cannot be made a ground to discard their evidence. Likewise, minor discrepancies in the statements of witnesses are bound to be there and it cannot be said to be fatal to the prosecution case. The learned trial Judge has closely scrutinised and prosecution evidence and nothing having been found to be infirm, the trial Court, in my considered view has rightly relied upon it. 15. For the reasons aforesaid, I have no hesitation in holding that the judgment under appeal is well reasoned and the findings of guilt arrived at by the trial Court are based on proper. appreciation of evidence. It must be held that the accused- appellant committed house trespass in order to commit rape on the prosecutrix and committed rape on her. The judgment of the trial Court,' therefore, deserves to be upheld. 16. In the result, the appeal fails and is hereby dismissed. The judgment of the trial Court convicting and sentencing the appellant under sections 376 and 450 Indian Penal Code is maintained.Appeal dismissed. *******