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2005 DIGILAW 2957 (RAJ)

Kalu Ram v. State of Rajasthan

2005-11-11

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the Judgment and order dated 110.2002 passed by the Additional Sessions Judge (Fast Track), Hanumangarh (For short, “the trial Court” hereinafter) in Sessions Case No. 145/2001, whereby the trial Court convicted both the appellants for the offences under Sections 376(2)(g) and 323, IPC and sentenced each of them to ten years rigorous imprisonment and a fine of Rs. 500/-in default of payment of fine further to undergo one months simple imprisonment for the offence under Section 376(2)(g), IPC and one years rigorous imprisonment for the offence under Section 323, IPC. Aggrieved by the Judgment of conviction and order of sentence impugned the appellants have filed the instant appeal. 2. Briefly stated, the facts relevant and necessary for the decision of this appeal are that PW. 9, the prosecutrix, lodged an FIR Exhibit P-8 with Police Station, Suratgarh on 212.2000, inter alia, alleging therein that she has been residing with her children. On 20.12.2000, while she was returning to her home, suddenly four persons appeared from the sand-dunes and caught her. She was taken behind the sand-dunes and subjected to rape. She suffered numerous teeth-bite injuries on various parts of her body and assuming that she is dead, they left her and went away. Somehow, she managed to reach the Police Station and lodged the report. It was also alleged that earlier also, few days before, the accused persons entered in her house and committed rape. On this information, the Police registered the crime report vide Exhibit P-9 and ensued investigation. After investigation, the police filed challan against the present two appellants and they were put to trial for the offences noticed above. 3. The prosecution examined as many as 10 witnesses and produced documents Exhibit P-1 to Exhibit P-30. The accused-appellants made statements under Section 313 of the Code and denied the allegations. Appellant No. 1 came with the plea that the prosecutrix is his immediate neighbour and both of them are having the plots adjacent to each other and there is a dispute with regard to possession of the plot between them and for that reason, a false case has been lodged by the prosecutrix against him. Appellant No. 1 came with the plea that the prosecutrix is his immediate neighbour and both of them are having the plots adjacent to each other and there is a dispute with regard to possession of the plot between them and for that reason, a false case has been lodged by the prosecutrix against him. So also is the case of Appellant No. 2 who has stated in his statement under Section 313 of the Code that being a close friend of Appellant No. 1 and helping him, he has been falsely implicated and stated that there is dispute relating to the plot between the prosecutrix and Appellant No. 1. The trial Court, vide impugned Judgment and order, convicted and sentenced the appellants as noticed above; hence this appeal. 4. I have heard learned Counsel for the appellants and the Public Prosecutor for the State. Carefully gone through the Judgment and order impugned, as also the record of the trial Court. I have scrutinized, scanned and evaluated the evidence on record. 5. It is contended by the learned Counsel for the appellants that no such occurrence took place and the prosecutrix, who is said to have been left by her husband many years ago, is having enmity with the Appellant No. 1 with regard to dispute relating to a plot. The plot belongs to the Appellant No. 1 which the prosecutrix has forcibly taken in possession and surrounded it by throne-fencing and in order to retain illegal possession over the plot belonging to the Appellant No. 1, a false case has been instituted. Learned Counsel further submits that the statement of the prosecutrix run contrary to the FIR in material particulars, as also the presence of PW. 8 Kalu Ran, and alleged eye-witness, is doubtful. It is further contended that according to the prosecutrix, she was given numerous teeth-bite injuries on various parts of her body and mercilessly assaulted, but on being examined by the Medical Jurist, it was noticed that she had suffered no visible injury. He further submitted that the prosecutrix stated that her glass bangles, 24 in number (twelve in each hand) were totally broken at the place of the occurrence, but after the occurrence when the site was inspected by the Investigating officer, no pieces of broken glass bangles were found at the place of the occurrence. 6. He further submitted that the prosecutrix stated that her glass bangles, 24 in number (twelve in each hand) were totally broken at the place of the occurrence, but after the occurrence when the site was inspected by the Investigating officer, no pieces of broken glass bangles were found at the place of the occurrence. 6. Learned Public Prosecutor appearing for the State supported the impugned Judgment and order and submitted that the prosecutrix, in her statement, stated that Appellant No. 2 Hanuman committed rape on her and Appellant No. 1 and two other persons were present on the place of the occurrence and, therefore, the trial Court was justified in convicting and sentencing the appellants. 7. I have given my thoughtful consideration to the rival contentions raised by the learned Counsel for the parties. 8. In the FIR Exhibit P-8, the prosecutrix has not stated at all that soon after the occurrence, PW. 8 Kalu Ram came at the place of the occurrence. PW. 8 Kalu Ram is not a stranger, but on the contrary, according to the prosecutrix herself , he is the brother of her sister-in-law (Devrani). She categorically stated in her statement that PW. 8 Kalu Ram is the brother of her sister-in-law. In the FIR Exhibit P-8, she has not at all shown his presence. 9. PW. 8 Kalu Ram stated that when he went to her sisters house, he also went to the house of the prosecutrix to see her and on reaching her house, it was found that she was not at the home. When he was going, he saw there persons coming from the sand-dunes. He has not identified those persons. Thereafter, upon hearing the cries, he went behind the sand-dunes and found the prosecutrix without under garments and by that time the three persons had already fled away and he had not seen their faces. The hands of the prosecutrix were tied with a Chunni. On being inquired, the prosecutrix did not disclose anything. The prosecutrix was wearing Salwar and Jumper, both of which were having green colour. The hands of the prosecutrix were tied with a Chunni. On being inquired, the prosecutrix did not disclose anything. The prosecutrix was wearing Salwar and Jumper, both of which were having green colour. The garments which the prosecutrix was wearing at the time of the occurrence, were recovered by the Police vide Exhibit P-18 and from the perusal of the seizure memo Exhibit P-18, it appears that the garments which the prosecutrix handed over to the Police alleging that she was wearing those garments at the time of the occurrence, were of purple colour. PW. 8 Kalu Ram is a resident of Punjab. He has categorically stated that he is residing in Punjab. There is no evidence as to when he came to Rajasthan and that too in the area where the alleged occurrence took place. There is no corroborative evidence of the sister of this witnesses. Had this witness came to his sisters house, there would have been some statement showing his presence on the relevant date at the place of the occurrence. More so, he, being a close relative of the prosecutrix, firstly his presence has not been shown and secondly his name does not find mention in the FIR Exhibit P-8. The prosecutrix has mentioned in the FIR that some how or other, she managed to reach the police station. Had PW. 8 Kalu Ram been present at the place of the occurrence soon after the occurrence, the natural course would have been that he would have accompanied the prosecutrix to the police station and for medical aid. It is highly improbable that a person in very close relation to the prosecutrix, in such a state of affair of rape, would simply leave the prosecutrix and go. Thus, this witness appears to be a chance witness and from the evidence on record, this presence at the place of the occurrence cannot be said to have been proved by the prosecution beyond reasonable doubt. Even according to this witness, when he inquired from the prosecutrix as to what had happened, she did not disclose any thing to him. 10. The prosecutrix, in her statement, has stated that Appellant No. 2 committed rape on her, however she categorically stated that her eyes were tied with a Patti and, therefore, she could not know who, out of the four persons, committed the sin act. 10. The prosecutrix, in her statement, has stated that Appellant No. 2 committed rape on her, however she categorically stated that her eyes were tied with a Patti and, therefore, she could not know who, out of the four persons, committed the sin act. Even from the perusal of her statement, there is absolutely no evidence of penetration. Vaginal penetration is sine-qua-non for construing the offence of rape. The prosecutrix stated that her eyes were tied with a Patti and thereafter appellant Hanuman committed the sin act. The vaginal smear and swab were sent for chemical analysis to the State Forensic Science Laboratory, however vide Exhibit P-28, semen was not detected in the vaginal smear and swab. 11. The prosecutrix stated that the Appellant No. 1 assaulted her by repeatedly throwing her on the ground and she was assaulted on various parts of her body and in FIR Exhibit P-8, she alleged that after assaulting her and assuming that she is dead, accused left her and went away. After lodging of the report, she was medically examined by PW. 1 Dr. Ratan Lal Agrawal, who categorically stated that there was no visigible injury, suffered by the prosecutrix, however, she complained of abdominal pain and pain on the back. Had the version of the prosecutrix been correct then there would have been number of injuries on her person, but in fact, such injuries were not there. 12. On inspection of the site, the broken pieces of glass bangles were not found. From a perusal of the site inspection note Exhibit P-19, it appears that the broken pieces of glass bangles allegedly of 24 bangles, were not found at the place of the occurrence. 13. Thus, on close scrutiny of the statement of the prosecutrix and the other witnesses, including the statement of PW . 1 Dr. Ratan Lal Agrawal, the case of the prosecutrix neither finds any corroboration from the medical evidence, nor from the site inspection note. 14. So far as presence of PW . 8 Kalu Ram is concerned, as discussed hereinabove, he has neither been named in the FIR Exhibit P-8, nor his presence has been shown in the FIR. 1 Dr. Ratan Lal Agrawal, the case of the prosecutrix neither finds any corroboration from the medical evidence, nor from the site inspection note. 14. So far as presence of PW . 8 Kalu Ram is concerned, as discussed hereinabove, he has neither been named in the FIR Exhibit P-8, nor his presence has been shown in the FIR. Had he been present at the place of the occurrence soon after the occurrence, then the colour of the garments worn by the prosecutrix disclosed by him would have been the same which were seized from the prosecutrix soon after the alleged occurrence. That shows that PW . 8 Kalu Ram, who is a resident of Punjab, has not witnessed the occurrence and appeared as a chance witness. His presence at the scene of the occurrence is highly doubtful. 15. More so, according to the prosecutrix, there were four persons and out of those four persons, who committed rape, she could not state. Two persons have not been challaned by the Police. If at all any act took place then it cannot be ascertained, in absence categorical statement as to who committed rape. In the circumstances, therefore, in absence of any corroborative evidence, the conviction on the solitary statement of the prosecutrix cannot be sustained. 16. More so, in the instant case, in view of the material contradictions and discrepancies in the prosecution case, the statement of the prosecutrix also does not inspire confidence. 17. Consequently, the jail appeal is allowed. The Judgment and order impugned dated 110.2002 passed by the Additional Sessions Judge (Fast Track), Hanumangarh in Sessions Case No. 145/2001 is hereby set aside. Appellants Kalu Ram S/o Doongar Ram, and Hanuman S/o Surja Ram are acquitted of the offences. They are in jail. They shall be released forthwith, if not required in any other case.