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2009 DIGILAW 1207 (RAJ)

Suta Ram @ Ramjilal v. State of Rajasthan

2009-05-01

MAHESH BHAGWATI

body2009
Hon'ble BHAGWATI, J.—Challenge in this appeal is to the judgment dated September 18, 1987 rendered by Sessions Judge, Jhunjhunu whereby, he convicted the accused-appellant in the offence under Sections 376 of IPC and sentenced as under: u/S. 376 of IPC: Rigorous imprisonment for seven years and a fine of Rs. 500/-; in default of payment of fine to further suffer rigorous imprisonment for three months. 2. The factual matrix of the prosecution case in brief is stated as under:- That on 18th December, 1986 the prosecutrix along with her elder sister and sister-in-law went to jungle to collect fuel (wood). It is alleged that when the prosecutrix was fastening the bundle of fuel (wood), the accused Suta Ram suddenly came and having caught hold of made her to lie on the ground and ravished her without her consent. It is further alleged that when she raised alarm, the accused pressed her mouth. Having heard her screams, Chothu Ram who was grazing his she goats came running on the scene of occurrence. The accused had ravished her before his coming. There was one more boy of Rajput caste who wanted to rape her but having seen Chothu Ram both these persons filed from there. The prosecutrix gave an oral report in police station khetri, where police lodged First Information Report Ex. P/4 and commenced investigation. 3. During the course of investigation, the police prepared site plan Ex. P/5, recorded the statements of witnesses acquainted with the facts and circumstances of the case, got the prosecutrix medically examined with a view to ascertain the commission of offence of rape, arrested the accused and got him also medically examined and after usual investigation, submitted the charge-sheet in the Court of Magistrate having jurisdiction. 4. In due course of time, the case appeared before learned Sessions Judge, Jhunjhunu, who indicated the accused for the offence under Section 376 of IPC. The accused pleaded not guilty and claimed trial. The prosecution in order to prove its case examined in all 3 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 offence under Section 376 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. On completion of trial, the Court found the appellant guilty and convicted him in the offence under Section 376 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. The first argument advanced by the learned counsel for the appellant is that the occurrence of this case took place on 12.12.1986 at 12:00 hrs. and the report by the prosecutrix was lodged on 21.12.1986 at 10:15 a.m., whereas, the distance between the village of the prosecutrix and the police station Khetri is only 12 kms. The prosecution has not furnished any reasonable and satisfactory explanation in lodging the FIR Ex. P/4 after an inordinate delay of three days or 72 hours. This delay is fatal to the prosecution and merely on this count, the conviction of the accused appellant recorded by the learned trial Court deserves to be set aside. 7. Per contra, learned Public Prosecutor has submitted that the prosecutrix in her statements given before the Court has furnished the satisfactory explanation of 3 days' delay in lodging the report. Her husband was not in village when he came back after three days of the occurrence to his house, the prosecutrix narrated the entire incident to him and soon thereafter, they lodged the FIR. The explanation furnished by the prosecutrix is natural and satisfactory and there is no reason to disbelieve the same. 8. Having gone through the statement of the PW.3 Smt. Bimla, it is found that her husband had gone out and he came back three days after the occurrence. Her statement reveals that this incident was narrated by the prosecutrix to her mother-in-law and other ladies residing in her neighbourhood also. Rukmani and Santosh were already in known of this incident. The distance between village of the prosecutrix and the police station is found to be only 12 kms. When the fact of the commission of rape had come into the notice of these so many persons, any person could aid the prosecutrix and take her to the police station for lodging FIR. The distance between village of the prosecutrix and the police station is found to be only 12 kms. When the fact of the commission of rape had come into the notice of these so many persons, any person could aid the prosecutrix and take her to the police station for lodging FIR. The learned trial Court relying upon the judgment reported in AIR 1981 SC 361 , observed that usually the family members sit jointly and decide as to whether in such a case the matter is taken to the court or not. But the observation of the learned trial Court does not seem to be just and proper. The manner in which the offence of rape is alleged to have been committed by the accused upon the prosecutrix and the way in which the entire incident of rape is found to have been narrated by the prosecutrix in the Court, lead me to infer that the report with regard to commission of offence of rape was made in the police station after considerable deliberation and consultation. If the incident of rape is taken to be true, then the question arises as to what prevented the prosecutrix go to police station with Rukmani, or with Santosh or with Chothu Ram or with any male or female member residing in her neighbourhood. There was no need to wait for three days for the arrival of her husband. Apart this, it is also not revealed as to where her husband had gone and from where he came back after three days of the occurrence. The Statement of the prosecutrix on this issue does not inspire any confidence. The prosecution has failed to furnish a satisfactory explanation of an inordinate delay of three days in lodging the First Information Report with police station Khetri. 9. 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 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 name 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." 10. 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/4 has been filed in the police station after an inordinate delay of three 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. 11. The second thrust of argument advanced by the learned counsel for the appellant is that the statement of PW.1 Chothu Ram and PW-3 Bimla are laden with contradictions in material particulars. On one hand Chothu Ram claims himself to be an eye-witness of this case, whereas, the prosecutrix deposed that Chothu Ram came after 5-10 minutes of the occurrence. He has further canvassed that PW-1 Chothu Ram has made improvement in his statement which renders the same to be unreliable. 12. Learned Public Prosecutor in contra, has submitted that the contradictions emerging in the statement of PW.1 Chothu Ram and PW.3 Bimla are of flippant nature which are easily reconcilable. Their statements are reliable and trustworthy and in view of such a situation the criminal appeal filed by the appellant deserves to be dismissed. 13. 12. Learned Public Prosecutor in contra, has submitted that the contradictions emerging in the statement of PW.1 Chothu Ram and PW.3 Bimla are of flippant nature which are easily reconcilable. Their statements are reliable and trustworthy and in view of such a situation the criminal appeal filed by the appellant deserves to be dismissed. 13. Now, adverting to the statements of PW.1 Chothu Ram and PW.3 Bimla, it is noticed that Chothu Ram has claimed himself to an eye-witness of this case. In the examination in chief, he has deposed that when he came running in the culvert, he found the accused Suta Ram lying on Bimla. He was ravishing her. He raised an alarm and caught hold of Suta Ram by his neck and then lifted him. Quite contrary to his statement, PW-3 Bimla the prosecutrix deposed in her cross-examination that firstly, Chothu Ram came two hours before the occurrence took place and then he left. Thereafter, he came 5-10 minutes after the incident had taken place. When Chothu Ram came, she narrated the entire incident to him. The contradictory statements of both these witnesses on such a material point tell upon their credibility and render their statements unworthy of credence. The manner in which Chothu Ram has deposed before the Court makes his testimony doubtful. The statement given by him before the Court is quite contrary to the statement Ex. D/1 given to the Investigating Officer under Section 161of Cr.P.C. Thus, this witness is found to have embellished and improved upon his earlier statements which makes testimony of the witness wholly unreliable. 14. In view of above backdrop, the whole case now rests on the sole testimony of prosecutrix PW.3 Bimla. 15. 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, the corroboration of her testimony is essentially required to convict the accused. 16. In the instant case, the manner in which the prosecutrix PW.3 Bimla has scribbled the report Ex. P/4 after an inordinate delay of three days and further the way in which the prosecutrix has depicted the incident of rape makes the whole prosecution case highly improbable. 17. Her statements does not stand corroborated by the medical evidence also. The medical examination report of the prosecutrix Bimla Ex.P/1 reads thus:- "There is no mark of any injury on any part of body." 18. This medical report also reveals that there was no tenderness on her vagina. It does without saying had the accused ravished her without her consent and against her will, she would have obviously struggled and opposed the act of the accused and would have sustained some injuries, though of flippant nature, on her body. The statement of the prosecutrix does not suggests anywhere that she had struggled. or opposed the act of the accused in any manner. 19. Absence of injury on any part of the body of the victim girl sometimes probabalises absence of any coitus when no mark of injury or violence is found on any part of the body in support of having been ravished forcibly by the accused, it can safely be inferred that no rape was committed upon her. In the instant case no mark of violence or injury has been found on the private parts of the prosecutrix. There is no other ocular or circumstantial evidence which supports the prosecution case. Hence, in view of this position, it is highly unsafe to believe the testimony of the prosecutrix. The evidence of the prosecutrix is found to be untrustworthy and unworthy of credence and it inspires no confidence. 20. 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 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. 20. 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 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. 21. For these reasons, the criminal appeal filed by the appellant Suta Ram @ Ramji Lal is allowed. The conviction of the appellant in the offence u/S. 376 of IPC and sentences awarded to him are set aside. Instead he is acquitted in the alleged offence u/S. 376 of IPC. 22. The appellant is on bail. He need not surrender. His bail bonds stand discharged.