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2009 DIGILAW 1065 (RAJ)

State of Rajasthan v. Balram

2009-04-17

MAHESH BHAGWATI

body2009
JUDGMENT Hon'ble BHAGWATI, J.—The challenge in this appeal is to the judgment dated 23rd July, 1985 rendered by the learned Sessions Judge, Kota whereby the accused-respondents Balram and Nand Kishore have been acquitted of the offence under Section 376 of. IPC 2. The prosecution version as unfolded during trial is as under:- That on 12th June, 1984 at about 2:00 p.m., the prosecutrix was taking care of the vegetables grown in her field situated in village Jithani. The prosecutrix is said to be deaf and dumb. It is alleged that the accused-respondents Balram and Nand Kishore came there and having found the prosecutrix alone on the well, they forcibly ravished her. PW-2 Dhuli Lal who was in his own field juxtaposed to the field of the prosecutrix, having heard her screams ran to the well. It is stated that both the accused-respondents having seen him fled from there. The father of, the prosecutrix was not in the village. on the day of occurrence, hence, one Gopal took the prosecutrix to the police station Sangore where she filed written report Ex.P/1 whereupon the FIR was lodged and investigation commenced. 3. The Investigating Officer recorded the statements of the witnesses acquainted with the facts and circumstances of the case, got the prosecutrix medically examined so as to ascertain her age and the commission of the offence of rape, prepared the site plan Ex.P/8, seized the underwear of the accused-respondents Balram and Nand Kishore vide memo Ex.P/9 & 10 respectively, seized one ghaghara, one blouze and one Lungari of the prosecutrix vide memo Ex.P/11, obtained the FSL report Ex.P/12 & 13 and after usual investigation sent both the accused persons for trial to the Court. 4. The accused respondents Balram and Nand Kishore were indicted for the offence u/S. 376 of IPC, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined in all eight witnesses. The accused persons also put DW-1 Ramdayal in defence. In their explanation u/S. 313 of Cr.P.C. both the accused claimed innocence. 5. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, Learned counsel for the accused-respondents and with their assistance scanned the material available on record. 6. At the very outset, it is relevant to point out that the prosecutrix is deaf and dumb. since her birth. 5. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, Learned counsel for the accused-respondents and with their assistance scanned the material available on record. 6. At the very outset, it is relevant to point out that the prosecutrix is deaf and dumb. since her birth. After the arrest of the accused persons Balram and Nand Kishore, an identification parade was convened by the Additional Munsif cum Judicial Magistrate No.l (South), Kota on 11.3.1984 with regard to the identification of the accused persons by the prosecutrix. The identification parade report Ex.P/14 is found to have been admitted by the learned counsel for the accused-respondents during trial. The identification parade report Ex.P/14 reveals that the prosecutrix was taken to 14 persons in District Jail, Kota so as to identify those two accused persons who committed rape upon her. The note in column 11 furnished by the concerned Judicial Magistrate further reveals that the prosecutrix was not able to understand anything and her mental state was not sound. Neither she was able to speak nor hear anything and she being not of healthy mind did not identify any accused. 7. Further, prosecution endeavoured to examine her but since she was not able to understand anything nor able to express the incident tangibly, her statement was not recorded by the court. 8. The prosecution is found to have examined one witness PW-2 Dhuli Lal who is said to be an eye witness of the occurrence. This witness deposed that having heard the screams coming from the direction of the field of Ayodhya, he went there and found that the accused Balram had caught hold of her both the hands with the pressure of his both legs and gagged her mouth by his hands and the accused Nand Kishore was committing rape upon her. when he raised an alarm, both the accused persons fled from there. He further deposed that Ayodhya thereafter, stood and went to her well. Similarly, he also came back to his field, pw-1 Prabhu Lal, albeit, is the father of the prosecutrix but he was not in the village on the date of occurrence, hence, his statements are of no value to the prosecution. 9. He further deposed that Ayodhya thereafter, stood and went to her well. Similarly, he also came back to his field, pw-1 Prabhu Lal, albeit, is the father of the prosecutrix but he was not in the village on the date of occurrence, hence, his statements are of no value to the prosecution. 9. Learned Public Prosecutor appearing for the state has contended that the learned trial court did not appreciate the evidence of PW-2 Dhuli Lal properly nor take care of the FSL report Ex.P/12 and 13 which evinces the presence of semen on ghaghara of Ayodhya, underwear (chaddi) of both the accused persons Balram and Nandkishore and vaginal swab of Ayodhya. As per FSL report Ex.P/13, human blood also has been found on Lungari of Ayodhya and underwear (chaddi) of one accused. Since the prosecutrix was deaf and dumb and unable to express the incident before the court, there was no reason to disbelieve the testimony of PW-2 Dhuli Lal. Learned Public Prosecutor has further argued that from the evidence of PW-2 Dhuli Lal and the FSL report ex.p/12 and 13, it is very well established that the accused persons committed-rape upon the prosecutrix without her consent and against her will and thus, the finding of the trial court is not just and merited which deserves to be set aside and the accused-respondents being guilty of the offence u/S. 376 of IPC deserve to be convicted. 10. Per contra, learned counsel for the accused-respondents has canvassed that the learned trial court has examined the evidence of the prosecution witnesses in detail and there being no evidence against the accused-respondents on record did not find them guilty and thus, the learned trial court has rightly acquitted them of the alleged offence of rape. The observation of the learned trial court is also very pertinent to this effect that if there was any coitus between the prosecutrix and the accused persons, it was well with her consent as the prosecutrix was habitual to sexual intercourse. No such evidence is available on record which could lead the court to draw the only one inference that the accused persons had ravished the prosecutrix without her consent and against her will. No such evidence is available on record which could lead the court to draw the only one inference that the accused persons had ravished the prosecutrix without her consent and against her will. He has further argued that if two reasonable conclusions can be drawn on the basis of evidence on record, then the High Court should not usually interfere with the order of acquittal recorded by the court below. He has cited case title G.B. Patel vs. State of Maharashtra, reported in AIR 1979 SC 135 . 11. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that there is no direct evidence against the accused-respondents except the testimony of PW-2 Dhuli Lal on record. The statement of Dhuli Lal cannot be relied upon for two reasons. Firstly, he being in relation to pw-1 Prabhu Lal, who happens to be the father of the prosecutrix, is an interested witness and, secondly, his deposition is found to be totally unnatural. The written report Ex.P/1 simply stated that pw-2 Dhuli Lal having heard the screams of prosecutrix went to her well and thereafter, having seen him, the accused persons fled from there. But in the court, he deposed that at the time of occurrence, he was cutting grass in his field for his buffaloes. He heard the unclear voice of Ayodhya and ran to her field. There he found that the prosecutrix was lying on the ground. The accused Balram had caught hold of her both the hands by his both the legs and had gagged her mouth by his hands. He further deposed that the accused Nand Kishore had lifted her ghaghara and was ravishing her. The most surprising feature emerging from the statements of pw-2 Dhuli la! is that after seeing such a grave incident neither he raised any alarm nor he endeavoured to chase the accused persons and highly surprisingly nor he talked to Ayodhya. The witness deposed that the Ayodhya stood and went to her well and the witness also came back to his field. Such statement of the witness in alike circumstances in a given set of circumstances can safely be termed as the most improbable and unnatural as it does not conform to the normal human behaviour of a prudent man. The witness deposed that the Ayodhya stood and went to her well and the witness also came back to his field. Such statement of the witness in alike circumstances in a given set of circumstances can safely be termed as the most improbable and unnatural as it does not conform to the normal human behaviour of a prudent man. Learned trial court has rightly jettisoned the statement of PW-2 Dhuli Lal as his statement is found to be totally unnatural and suffers from apparent infirmity. 12. It is a settled law that the court can base the conviction of the accused solely on the evidence of prosecutrix, if it is found trustworthy and worthy of credence but in the instant case the statements of the prosecutrix have not been recorded for the reasons detailed hereinabove and the evidence of so called sole eye witness PW-2 Dhuli Lal has not been found free from infirmity. In such a situation, a heavy duty is cast upon the court to examine the whole evidence led by the prosecution very carefully and cautiously. The only evidence found available with regard to coitus is the FSL report Ex.P/12 which evinces that the human semen was detected on the ghaghara of Ayodhya and underwear of Nand Kishore and Balram and the vaginal swab of Ayodhya. These cloths were seized by the Investigating Officer on 21.6.1984, approximately nine days after the said occurrence of rape. It also seems to be improbable that the accused persons did not take bath and they also did not wash their under wears for nine days. However, even if this evidence is taken to be against the accused respondents, then also, it is not found safe to base solely thereupon and convict them in the offence of rape. 13. In the case of G.B. Patel vs. State of Maharashtra, reported in AIR 1979 SC 135 , the Hon'ble Apex Court has held that: "where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. In other words, if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. While considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses, if on appraisal of the evidence and on considering relevant attending circumstances it is found that two view are possible, one as held by the trial court for acquitting the accused, and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court." 14. In the case of Tota Singh vs. State of Punjab. reported in AIR 1987 SC 1083 , the Hon'ble Apex Court has held: "The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have seen possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous." 15. Learned trial court has critically analyzed and properly appreciated the evidence of the prosecution witnesses in detail. The judgment of the learned trial court is cogent and well merited and does not suffer from any infirmity. The prosecution has miserably failed to prove the offence of rape against the accused-respondents beyond doubt. 16. In the ultimate analysis, I am in unison with the finding of acquittal arrived at by the learned trial court and thus, the impugned judgment does not call for any intervention. 17. For these reasons, the State appeal being bereft of merits stands dismissed.