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2009 DIGILAW 1138 (RAJ)

Kishan v. State of Rajasthan

2009-04-27

MAHESH BHAGWATI

body2009
JUDGMENT Hon'ble BHAGWATI, J.—Challenge in this appeal is to the judgment dated September 2, 1987 rendered by Sessions Judge, Bundi whereby, he convicted the accused-appellant in the offences under Sections 376 and 341 of IPC and sentenced them as under: u/S. 376 of IPC: Rigorous imprisonment for seven years and a fine of Rs. 150; in default of payment of fine to further suffer simple imprisonment for one month. u/S. 341 of IPC: Rigorous imprisonment for 15 days and a fine of Rs. 15/-; in default of payment of fine to further suffer simple imprisonment for fifteen days. Both the sentences were ordered to run concurrently. 2. The prosecution story succinctly runs as under:- That on 1st April, 1987 at about 3:00 pm, the prosecutrix Geeta was coming back to her village after collecting fodder from her field. It is alleged that when she reached near the pond of the village, the accused Kishan S/o. Badri Meena came and obstructed her way. He squeezed her breasts and made her to lie on the ground. It is further alleged that the accused lifted her ghaghara and in hurried heed ravished her against her will and without her consent. She struggled and screamed but he did not stop. Having heard her screams, one Shri Ramdutt S/o. Kanha Meena came there running and when he alarmed, the accused fled from there The prosecutrix filed a written report Ex. P. 2 to District Collector, Bundi whereupon, the police lodged FIR Ex. P/3 and commenced investigation. 3. The Investigating Officer recorded the statements of the witnesses acquainted with the facts and circumstances of the case, prepared site plan Ex. P.4, recovered the broken pieces of bangles from the spot vide memo Ex. P/5, got the prosecutrix medically examined, arrested the accused vide memo Ex. P/8 and after usual investigation, the police filed the charge-sheet and sent him for trial to the Court. 4. In due course of time, the case appeared before Sessions Judge, Bundi, who indicated the accused for the offences under Sections 376 and 341 of IPC. The accused pleaded not guilty and claimed trial. The prosecution in order to prove its case examined in all 7 witnesses. The accused-appellant in his explanation under Section 313 of Cr.P.C. claimed innocence. 4. In due course of time, the case appeared before Sessions Judge, Bundi, who indicated the accused for the offences under Sections 376 and 341 of IPC. The accused pleaded not guilty and claimed trial. The prosecution in order to prove its case examined in all 7 witnesses. The accused-appellant in his explanation under Section 313 of Cr.P.C. claimed innocence. On completion of trial, the court found the appellant guilty and convicted him in the offences under Sections 376 and 341 of IPC and sentenced as indicated hereinabove. 5. Heard learned counsel for the accused-appellant, learned Public Prosecutor appearing for the State and with their assistance scanned the relevant material available on record. 6. Learned counsel for the appellant has canvassed that the identity of the accused Kishan is not established beyond reasonable doubt. While drawing my attention to the statements of the prosecutrix given in her cross-examination, he has contended that the prosecutrix did not know him from earlier. It was her mother-in-law PW.6 Kasturi who told her that the person who obstructed her way and ravished her, was nobody else but the accused Kishan S/o Badri. It is very relevant to reproduce her statement which is thus:- ^^eSa fd'ku eqfYte dks igys ls ugha tkurh Fkh] eSa bldk ?kwa?kV fudkyrh FkhA xkao ds lHkh enZ vknfe;ksa dk eSa ?kwa?kV fudkyrh FkhA eq>s ;gh irk Fkk fd eqfYte fd'ku gekjs xkao dk gS] blds vykok vkSj dqN irk ugha FkkA eqfYte fd'ku dk uke Hkh eq>s ?kVuk ds fnu gh ekyqe iM+kA eSa tc jksrh jksrh ?kVuk ds ckn vius ?kj xbZ rc eSaus viuh lklq ls iwNk fd og dkSu Fkk rks mlus crk;k fd og cnzh dk yM+dk fd'ku gSA esjh lkl us gh esjs iwNus ij eqfYte dk uke crk;kA** Whereas, PW.6 the mother-in-law of the prosecutrix deposed that Geeta came back to house at about 3:00 p.m. She apprised with the fact that the accused Kishan S/o. Badri obstructed her way and made her to lie on the ground and sat on her breasts. In her cross-examination, she has revealed that it was Geeta who disclosed the name of the rapist to be Kishan S/o. Badri. Albeit, in the written complaint Ex. P/ 2, the name of the accused Kishan figured but as per the statements of the prosecutrix she came to know his name on the date of occurrence only. In her cross-examination, she has revealed that it was Geeta who disclosed the name of the rapist to be Kishan S/o. Badri. Albeit, in the written complaint Ex. P/ 2, the name of the accused Kishan figured but as per the statements of the prosecutrix she came to know his name on the date of occurrence only. Thus, the statements of PW.3 Smt. Geeta and PW.6 Kasturi are found to be obscure and contradictory with regard to the identity of the accused. 7. In view of their statements, a very crucial question emerging for consideration is that when the prosecutrix did not know the name of the accused from earlier then how could her mother-in-law PW.6 Kasturi could tell that she must have been ravished by Kishan. Secondly, if it is taken to be true that the prosecutrix knew him from earlier then what made her to give the aforesaid statement in her cross-examination with regard to the unknown identity of the accused. These contradictory statements of the prosecutrix and her mother-in-law cast doubt about their veracity. 8. The written report Ex. P/2 exhibits that there was one eye-witness PW.1 Ramdutt who appeared on the scene of occurrence after hearing the screams of Geeta. It is he who raised an alarm and having heard the same, the accused fled from there after fulfilling his erotic sortie. 9. Now adverting to the statements of PW.1 Ramdutt, it is found that he has not supported the prosecution case and has turned hostile. He speaks nothing with regard to the commission of rape. On the contrary, his statements given in the cross-examination tells upon the character of the prosecutrix. This witness deposed that 4-5 years prior to this occurrence, Geeta went with her husband's elder brother Mohan and thereafter, her husband went and brought her back to her house. Tow or three months after this incident, she went with Sukkha Meena and she implicated Sukkha Meena also in a similar case. By way of this implication, she extorted Rs. 100-200 from him. The statement of this witness suggests as if the prosecutrix was a lady of easy virtues. However, this witness who is said to be the only independent eye witness of this case also does not support the prosecution story. 10. Per contra, the learned Public Prosecutor has submitted that the impugned judgment of the learned trial Court is cogent and just. However, this witness who is said to be the only independent eye witness of this case also does not support the prosecution story. 10. Per contra, the learned Public Prosecutor has submitted that the impugned judgment of the learned trial Court is cogent and just. The learned trial Court has critically analyzed the evidence of the prosecution witnesses at length and rightly relied upon the testimony of the prosecutrix. The learned Sessions Judge has not committed any error and his finding of conviction in the instant case, is quite just and proper which calls for no interference. 11. Truly, it is a settled law that the court can base the conviction of the accused solely on the evidence of the prosecutrix if it is found trustworthy and worthy of credence. It may be mentioned here that there is no rule or practice that in every case there must be corroboration of the statements of the prosecutrix before a conviction can be based thereon, but as a matter of prudence, the necessity of corroboration must be present in the mind of Judge, especially where it is found that the prosecutrix is not giving true facts. Undeniably a rapist can be convicted on the uncorroborated testimony of the ravished woman if it is found true and inspires confidence, but if the evidence of the prosecutrix appears to be tainted, coloured, concocted and inconsistent, but if the evidence of the prosecutrix appears to be tainted, coloured, concocted and inconsistent, the corroboration of her testimony is essentially required to convict the accused. 12. In the instant case, the manner in which the prosecutrix PW-3 Geeta has scribbled the report Ex. P/3 and further the manner in which the prosecutrix has depicted the incident of attempt to commit rape makes the whole prosecution case highly improbable. 13. The last thrust of argument as canvassed by the learned counsel for the appellant is that the written report Ex. P/3 was lodged after an inordinate delay of six days the occurrence to the police. The explanation furnished with regard to delay in lodging seems to be unreasonable. The learned trial court has relied on this explanation furnished by the prosecutrix but to my view, this explanation does not seems to be genuine, reasonable and true. On the contrary this explanation seems to be improbable and unreasonable. 14. The explanation furnished with regard to delay in lodging seems to be unreasonable. The learned trial court has relied on this explanation furnished by the prosecutrix but to my view, this explanation does not seems to be genuine, reasonable and true. On the contrary this explanation seems to be improbable and unreasonable. 14. In Thulia Kali vs. State of Tamil Nadu, AIR 1973 SC 501 , the Hon'ble Apex Court has held: "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 15. In the above case, the occurrence was not reported for more than 20 hours. The delay was found to be fatal to the prosecution and to base conviction upon such evidence was held to be unsafe. But in the instant case, the complaint Ex. P/3 has been filed in the police station after an inordinate delay of six days of the occurrence and the prosecution has miserably failed to furnish satisfactory and reasonable explanation of this delay which to my firm view, is found to be fatal to the prosecution. 16. In the ultimate analysis, it is found that the learned trial Court has not properly appreciated the evidence of the prosecution witnesses. The learned trial Court has not taken into consideration all these factors and failed to properly appreciate the prosecution evidence. The impugned judgment of the lower Court is not found to be cogent and merited. 16. In the ultimate analysis, it is found that the learned trial Court has not properly appreciated the evidence of the prosecution witnesses. The learned trial Court has not taken into consideration all these factors and failed to properly appreciate the prosecution evidence. The impugned judgment of the lower Court is not found to be cogent and merited. The prosecution, to my view, has utterly failed to establish the offence and there is no evidence on record which may fasten the guilt upon the accused. In view of the aforesaid discussion, the impugned judgment is not found to be sustainable and deserves to be set aside. 17. For these reasons, the criminal appeal filed by the appellant Kishan is allowed. The conviction of the appellant in the offence u/S. 376 and 341 and sentences awarded to him are set aside. The appellant is acquitted of these offences. 18. The appellant is on bail. He need not surrender. His bail bonds stand discharged.