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2005 DIGILAW 1145 (RAJ)

Kalu @ Sumer v. State of Rajasthan

2005-04-15

F.C.BANSAL

body2005
Judgment F.C. Bansal, J.-These appeals are directed against the Judgment and order dated 11.07.2002 passed by the learned Additional Sessions Judge, Jhunjhunu whereby accused-appellants Kalu @ Sumer, Rohitash and Subhash have been convicted for the offence under Section 376(2), IPC and sentenced to suffer R.I. for ten years and a fine of Rs. 2,000/-, in default to further suffer R.I. for six months each. All the three appeals have been heard together and are being disposed of by this common Judgment . 2. Briefly stated the facts of the prosecution case are that on 06.07.2000 at 6.30 P.M. PW. 1 Kisturi of Arjun Ram, R/o. Choudhary Colony, Chidawa submitted a written report Exhibit-P/1 at P.S. Surajgarh wherein it was inter alia stated by her that having sold karry (unripened mango) on 05.07.2000 when she was returning from village Bhawthadi to bus stand Pilod she found Sultan, Subhash, Kaluram and Rohitash taking liquor near railway crossing, Bhawthadi. All the four accused caught hold of her, took her to a nearby place and forcibly committed sexual intercourse with her. Thereafter, she came to the house of Jogendra Jat and narrated the whole incident to him. On the basis of written report Exhibit-P/1, SHO, P.S. Surajgarh registered the FIR and investigated the case. On completion of investigation, a charge-sheet was filed against the appellants and co-accused Sultan in the Court of Judicial Magistrate, Chidawa who committed the case to the Court of learned Sessions Judge, Jhunjhunu. On transfer the case file was received by the learned Additional Sessions Judge, Jhunjhunu. 3. The learned Additional Sessions Judge framed charge under Section 376(2), IPC against all the accused who pleaded not guilty and claimed to be tried. To prove this charge the prosecution examined as many as nine witnesses. In their statements recorded under Section 313, CrPC the appellants and co-accused Sultan pleaded innocence and stated that they were falsely implicated in this case. In defence no witness was examined. 4. The learned trial Judge on hearing the final submissions convicted and sentenced the accused-appellants as indicated here-in-above and acquitted co-accused Sultan of the charge framed against him. 5. I have heard learned Counsel for the accused-appellants, learned Public Prosecutor for the State and with their assistance, carefully scanned and scrutinised the material on record. .6. 4. The learned trial Judge on hearing the final submissions convicted and sentenced the accused-appellants as indicated here-in-above and acquitted co-accused Sultan of the charge framed against him. 5. I have heard learned Counsel for the accused-appellants, learned Public Prosecutor for the State and with their assistance, carefully scanned and scrutinised the material on record. .6. Learned Counsel appearing for the accused-appellants contended that there was a delay of 24 hours in lodging the FIR and no explanation for this delay has been given by the prosecution. Learned Counsel further submitted that medical evidence does not support the prosecution and the Investigating Officer has not been examined. It was also contended that in the written report Exhibit-P/1 the prosecutrix alleged that the appellants and co-accused Sultan had committed rape on her but in her testimony before the trial Court she has stated that she was not raped by Sultan and, therefore, implicit reliance cannot be placed on her testimony. In these circumstances, the prosecution has failed to prove the charge under Section 376(2), IPC against the appellants and the trial Court has committed an error in convicting them. 7. Learned Public Prosecutor appearing for the State has supported the impugned Judgment . 8. I have considered the aforesaid submissions made by the learned Counsel for the accused-appellants. In Dalip & Anr. vs. State of M .P., 2002 WLC (SC) Criminal 224, the Apex Court has observed as under:-“The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. vs. Gian Chand, 2001 (6) SCC 71 , on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. This Court further held:- “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. if the same is found to be natural, trustworthy and worth being relied on. This Court further held:- “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations…” In Madan Gopal Kakkad vs. Naval Dubey, 1992 (3) SCC 204 , this Court has held (vide Para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities of factor’ does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 9. Keeping in view the above observations of Hon’ble the Apex Court, the evidence of the prosecutrix is being scanned and serutinized by me. The prosecutrix deposed before the trial Court that on the date of the incident she had gone to village Bhawthadi. After having sold karry she was going to bus stand Pilod to fetch a bus from railway station, Bhawthadi. On way she found appellants Rohitash, Subhash and Leela @ Kalia taking liquor. She further deposed that all the appellants caught hold of her and took her to the place of occurrence situated at some distance from the road and committed rape on her twice. Having committed rape, the appellants fled away. Thereafter she went to the house of the appellants to make complaint. From the house of the appellants she went to the well of Jogendra (PW . 3) and narrated the incident to him and on his advise she submitted a written report Exhibit-P/1 at the police station. As regards co-accused Sultan, she stated that he had not committed sexual intercourse with her. PW . From the house of the appellants she went to the well of Jogendra (PW . 3) and narrated the incident to him and on his advise she submitted a written report Exhibit-P/1 at the police station. As regards co-accused Sultan, she stated that he had not committed sexual intercourse with her. PW . 3 Jogendra Singh stated that in the morning at about 5.00-6.00 A.M. Kisturi came to his well and stated that Rohitash, Kaluram and Subhash had forcibly committed sexual intercourse with her. .10. On close and careful scrutiny of the testimony of the aforesaid witnesses, I have come of the conclusion that for the following reasons. Reliance cannot be placed on it:- .(i) Asper the testimony of the prosecutrix, three appellants had committed rape on her twice. In the written report Exhibit-P/1 it was also alleged by her that co-accused Sultan had also committed sexual intercourse with her against her will, but on medical examination no injury was found on her private parts and other parts of her body. Even tenderness was not found on or around her vagina. .(ii) In the written report Exhibit-P/1 co-accused Sultan was alleged to have committed forcible sexual intercourse with the prosecutrix but before the trial Court the prosecutrix deposed that she was not raped by Sultan. Even his presence with the appellants has been denied by the prosecutrix before the trial Court. .(iii) Neither in the written report Exhibit-P/1 nor in the statement recorded by the trial Court, time of the alleged incident has been stated by the prosecutrix. From the facts stated in the written report Exhibit-P/1 it appears that after the alleged incident the prosecutrix went to the house of Jogendra Singh in the evening and stayed there till morning. But PW. 3 Jogendra Singh has stated that on the date of the alleged incident the prosecutrix came to his well in the morning at about 5.00-6.00 A.M. .(iv) It has also been stated by the prosecutrix that after the incident of rape she went to the house of the appellants to complain. Such type of her conduct appears to be unnatural and shows that instead of rape, different incident had taken place with her. She might have been teased by the appellants when she was proceeding towards bus stand. Such type of her conduct appears to be unnatural and shows that instead of rape, different incident had taken place with her. She might have been teased by the appellants when she was proceeding towards bus stand. .(v) As per the prosecution case the alleged incident took place on 05.07.2000 but the written report (FIR) was lodged with the police station at 6.30 P.M. on 06.07.2000 and the prosecution has not explained the delay in lodging the FIR. In view of the aforesaid infirmities in the prosecution case, delay in lodging the FIR is also fatal. 11. For the reasons stated above, the evidence of the prosecutrix and PW . 3 Jogendra Singh cannot be safely relied upon to base a conviction. On an overall appreciation of their testimony, I have come to the conclusion that they are not reliable and the prosecution has failed to bring home the charge under Section 376(2), IPC against the appellants and thus, the trial Court has committed an error in convicting them. 12. In the result, the appeals of accused-appellants Kalu @ Sumer, Rohitash and Subhash are allowed. While setting aside the impugned Judgment and order dated 11.07.2002 passed by the learned Additional Sessions Judge, Jhunjhunu, all the appellants are acquitted of the charge under Section 376(2) of the Indian Penal Code. They are in jail. They shall be released forthwith, if not wanted in any other case.