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2005 DIGILAW 1712 (RAJ)

State of Rajasthan v. Hemraj

2005-07-05

SATYA PRAKASH PATHAK

body2005
JUDGMENT 1. - The present criminal leave to appeal under Section 378(1) & (3) Cr.RC. has been filed by the State against the judgment and order dated 31.1.2002 passed by learned Additional Sessions Judge (Fast Track) No. 2, Bundi, whereby the accused respondents have been acquitted for the offences punishable under Section 376/511 IPC. 2. Briefly stated, the facts of the case are that on 28.6.1998 at about 2.30 PM a written report Exhibit-P/1 was submitted by Kumari Sumitra Bai daughter of Rampal Bairwa in Police Station Diary stating inter alia therein that on 28.6.1998 at about 4.00 PM. in the evening, while she was looking after her field and was alone at the well, at that time accused respondents Hemraj and Ramavtar came there and they started cutting Khejari tree. It is further stated that she asked them not to cut the tree. Hearing this, they started, abusing her and thereafter accused Hemraj lifted her and laid on the ground and after sitting on her thighs lifted her Ghagara and pressed her breasts and tried to insert his penis into her vagina. She made hue and cry and on hearing her cry, her sister Mamata who was grazing cattle nearby came to the spot. On this, the accused respondents ran away. On this report, Exhibit-P/1, regular FIR Exhibit-P/7 was chalked out. 3. The investigation commenced and during the course of the investigation, Exhibit-P/2 Site Map was prepared in presence of Tejpal and Babulal on 30.6.1998. The prosecutrix was medically examined by PW 6 Dr. Mahesh Kumar Singhal on 28.6.1998. Two injuries were found on her person The injury report is as under: "Scratches (Nale mark) each of crecentive shaped sized 1/4" long over second right mammay gland just above areola gland and 3 marks on lower gland and of right mammay gland and 5 cm below areola. Simple blunt duration is 24 - 48 hours. No injury over wrist back or thigh. No injury over other part of the body. Injury over mammay gland is simple and sharp." 4. The Doctor has proved the injury report Exhibit-P/8. Statement of the prosecutrix under Section 164 Cr.PC. was got recorded by the police during the course of the investigation which is Exhibit-P/3. The accused were arrested on 30.6.1998 at about 5.00 PM. vide their arrest memo Exhibits-P/5 and P/6. Injury over mammay gland is simple and sharp." 4. The Doctor has proved the injury report Exhibit-P/8. Statement of the prosecutrix under Section 164 Cr.PC. was got recorded by the police during the course of the investigation which is Exhibit-P/3. The accused were arrested on 30.6.1998 at about 5.00 PM. vide their arrest memo Exhibits-P/5 and P/6. After completing usual investigation, a charge sheet was filed under Section 376/511 IPC in the Court of Judicial Magistrate, who committed the case to the Court of Session and from there it came before learned Additional District and Sessions Judge (Fast Track) No. 2, Bundi. Charge under Section 376/511 read with Section 3 IPC was framed against the accused respondents. Accused respondents denied the charge and claimed trial. In all, prosecution examined six witnesses and tendered eight documents in evidence. After close of the prosecution evidence, in the statement under Section 313 Cr.PC. accused denied the prosecution case and stated that on account of dispute of land between the parties they have been falsely implicated in the case. No evidence in defence has been produced. The learned Trial Court, after hearing both sides; vide its judgment and order dated 31.1.2002 acquitted the accused respondents of the charge framed against them. Hence, this criminal leave to appeal has been filed. The record of the case has been received. 5. I have heard learned Public Prosecutor for the State and also carefully examined the material available on record. 6. It has been contended by the learned Public Prosecutor that in view of the evidence of PW 3 Kumari Sumitra Bai, it has been established that the accused persons attempted to commit rape on her and, therefore, on account of evidence of the prosecutrix the accused respondents were liable to be convicted. He further contended that the learned Trial Court has not properly appreciated the evidence. 7. I have considered the submissions made before me. 8. Learned Trial Court found that the statement of the prosecutrix was not reliable and trustworthy for the reason that in the statement under Section 161 and 164 Cr.P.C. and also in the statement before the Court there are material contradictions and infact the true version of the case has not been placed on record. The learned Trial Court further found that it appears that on account of enmity a false case has been lodged against the accused respondents. 9. The learned Trial Court further found that it appears that on account of enmity a false case has been lodged against the accused respondents. 9. It is now to be seen as to whether the statement of the prosecutrix recorded in the Court find corroboration with other evidence led by the prosecution. 10. It is correct that only on the statement of the prosecutrix, conviction can be based but at the same time it should be reliable one. In the statement recorded under Section 164 Cr.PC. Exhibit-D/1 before the Magistrate, PW 3 Sumitra has not stated that accused respondents made attempt to rape her. The portion marked at place 'A' to 'B' in Exhibit-D/1 was recorded before the Court. A perusal of the statement recorded under Section 164 Cr.PC. clearly takes away the present matter out of the purview of Section 376/511 of the IPC. It is further significant to mention here that it has not been mentioned in the above statement that other persons were there when the incident took place whereas in the FIR Exhibit-P/7 it is mentioned that Kumari Mamta was grazing cattle in the field at a nearby place and she came there. In her statement Kumari Mamta, who is a child witness aged about 12 years, has stated that her elder sister Kumari Sumitra on the day of the incident was seen by her while she was grazing her cattle in the field and at that time accused respondent Hemraj was sitting on the stomach of her sister and on her crying accused respondents ran away. In the cross-examination she stated that there was dispute between the parties regarding land. 11. Statements of PW 2 Mamta and PW 3 Sumitra have completely changed the initial version of the prosecution story. PW 3 Sumitra has stated that infact on the day of the incident when the accused tried to cut Khejari tree and when she objected to it, they forcibly laid her down and for atleast 30 minutes accused Hemraj consistently tried to insert his penis into her vagina. Subsequently her sister came there. In her cross-examination, she has denied that the accused respondents are her cousins. She admitted the fact that her statement (Ex. D/1) was recorded before the Magistrate wherein at portion 'A' to 'B' she stated that she was pushed down on the earth and accused Hemraj sat on her thighs. Subsequently her sister came there. In her cross-examination, she has denied that the accused respondents are her cousins. She admitted the fact that her statement (Ex. D/1) was recorded before the Magistrate wherein at portion 'A' to 'B' she stated that she was pushed down on the earth and accused Hemraj sat on her thighs. It has not been mentioned that any act was done by the accused respondents in furtherance to commit an attempt of rape. The medical evidence also does not corroborate the oral testimony of the prosecutrix. Thus, it appears that the whole story has been cooked-up and the allegation to commit an attempt of rape. In view of the evidence discussed hereinabove read with medical evidence does not inspire confidence. Statements of other witnesses namely PW 4 Smt. Jawari and PW 1 Rampal (who is father of the prosecutrix) do not connect the accused respondents with the allegation of attempt of rape. There is dispute between the parties regarding land and infact some quarrel had taken place on account of cutting of Khejari tree by the accused respondents and a false case has been foisted against them. In view of the above evidence and also taking into consideration the statement of PW 6 Dr. Mahendra Kumar Singhal, it can safely be presumed that alleged allegation regarding attempt of rape in the present matter has not been established. The learned Trial Court has assigned cogent reasons while appreciating the evidence of the prosecutrix and other witnesses of the prosecution. The law is also settled on the point that the finding of the acquittal recorded by the Trial Court normally should not be disturbed in appeal unless it is found that either the Trial Court has misread the evidence of findings so recorded on the basis of material available on record is of perverse nature. 12. I have carefully examined the statements of the prosecutrix and other witnesses. I find that learned Trial Court has committed no error while appreciating the evidence of the prosecutrix and other witnesses. If that is so, then there appears to be no reason to interfere in the findings of acquittal recorded by the Trial Court vide its judgment and order dated 31.1.2002 in Sessions Case No. 159 of 2001 and the present criminal leave to appeal deserves to be dismissed after confirming the judgment and order passed by the Trial Court. 13. If that is so, then there appears to be no reason to interfere in the findings of acquittal recorded by the Trial Court vide its judgment and order dated 31.1.2002 in Sessions Case No. 159 of 2001 and the present criminal leave to appeal deserves to be dismissed after confirming the judgment and order passed by the Trial Court. 13. In the result, the present criminal leave to appeal filed by the State for the above discussed reasons stands rejected.Appeal dismissed. *******