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2010 DIGILAW 1935 (RAJ)

Kalyan Singh v. State of Rajasthan

2010-11-19

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2010
JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and Order of sentence dated 03.11.2004 passed by the Court of learned Special Judge, SC/ ST Cases, Churu in Sessions Case No. 66/2001 by which the learned trial Court convicted and sentenced the accused appellant Kalyan Singh as under:- Conviction Sentence Section 376 IPC with the aid of Section 3(2)(v) of SC/ST Act. Life Imprisonment & a fine of Rs. 20000/- in default to further undergo 1 year's RI. Section 323 IPC 3 months' RI & fine of Rs. 200/- in default to further undergo 1 month's SI Section 3(1)(xii) of SC/ST Act 1 year's RI & fine of Rs. 1000/- in default to further undergo 3 months' RI 3. The trial Court directed to pay Rs. 20,000/- to the victim. 4. As per the prosecution case on 01.09.2001 at about 5:45 pm, complainant Mala Ram, husband of the victim Smt. Chusa Devi, submitted a written report Ex.P/3 in Police Station Sardarshahar stating that on 31.08.2001, his wife Smt. Chusa Devi went to ease out nearby and when she was coming back, the accused appellant Kalyan Singh forcible caught her and committed rape upon her. When the complainant's wife shouted, then one Ram Pratap and one lady, wife of Shishpal, reached there, upon which the appellant ran away. Ram Pratap brought the victim to the house. One lichu Ram came to call the complainant, husband of the victim who was not at his home, upon which the complainant reached his house at about 4:00 pm and came to know about the incident. Firstly, the complainant tried to search out the accused in the village, then he collected Dula Ram, Anne Singh, Phool Singh, Mai Singh, Sugan Singh and Sugan Singh S/o Bhoor Singh and told them about the incident, upon which all the persons went to the house of appellant Kalyan Singh where appellant was not bound but they found appellant's brother Jeevraj Singh there where they protested against the conduct of the appellant. According to the complainant, the appellant's brother told them that if they want to register the case, they may go. The complainant stated that at that time, he could not get any means to reach to the police station, therefore, he has come to lodge the report on the next day at 5:45 pm. 5. According to the complainant, the appellant's brother told them that if they want to register the case, they may go. The complainant stated that at that time, he could not get any means to reach to the police station, therefore, he has come to lodge the report on the next day at 5:45 pm. 5. upon this complaint, a formal FIR No. 204/2001 was registered for committing offence punishable under Section 376 Indian Penal Code and Section 3(1 )(xii) of the SC/ST Act. During investigation, site was inspected, site memo was prepared, statements of victim and other witnesses were recorded and the accused were arrested. The victim and accused were medically examined and the material evidence was sent to the FSL for examination. After investigation, challan was filed against the accused appellant under Section 323 and 376 Indian Penal Code and Section 3(1)(xii) of the SC/ST Act. The accused was charged with the above offences for which the accused appellant denied and sought trial. . 6. The prosecution examined PW1 Dr. KK Mishra, PW2 Smt. Chusa Devi, PW3 Mai Singh, PW4 Mala Ram, PW5 Ram Pratap Singh, PW6 Kunana Kanwar, PW7 Anop Singh, PW8 Prithvi Singh, PW9 Kailash Chandra and PW10 Rajesh Sharma and produced 14 documents in evidence.The accused statement were recorded under Section 313 Criminal Procedure Code wherein the accused denied the allegations and state that because of dispute between husband of victim for one agriculture field, this false case has been registered against him. No defence evidence was produced. The statement of Mai Singh was exhibited as Ex.D/1. 7. After hearing the arguments, the learned trial Court relied upon the statement of victim PW2 Chusa Devi and though two material witnesses PW5 Ram Pratap and PW6 Kunana kanwar turned hostile, the trial Court found corroboration from medical evidence and convict the appellant. The learned trial Court also took the benefit of suggestions given by the side of accused to the victim in cross examination and drew inference that in view of suggestion also, the prosecution case finds support. 8. Learned counsel for the appellant vehemently submitted that the appellant has been falsely implicated because of rivalry and there is no evidence in the eye of law in support of the prosecution case. 8. Learned counsel for the appellant vehemently submitted that the appellant has been falsely implicated because of rivalry and there is no evidence in the eye of law in support of the prosecution case. It is also submitted that in the FIR, it has been mentioned that at the time of incident, first PW5 Ram Pratap and PW6 Shishpal Singh's wife reached there. Both these witnesses did not support the story set up by the complainant and alleged victim PW2 Choosa Devi. It is also submitted that it is a clear concocted story as the complainant want to take benefit of provision made by the Government for giving compensation of Rs. 50,000/- to the victim of rape if victim is member of SC/ST. The victim's husband PW4 Mala Ram in his statement admitted that he received compensation of Rs. 50,000/- from the Government because of this complaint only. It is also submitted that the victim Chusa Devi disclosed her age to be 40 years but she was very old. PW3 Mai Singh in his cross examination clearly admitted that the said victim is of the age of 60-65 years. Victim's husband Mala Ram also admitted that his elder son was of the age of 25 years and he was married at that time. It is also submitted that the appellant has been wrongly connected with the other evidence and false recoveries have been shown. The appellant was arrested on 18.10.2001 whereas the incident alleged to have occurred in the afternoon of 31.08.2001 and yet it has been stated by prosecution witness PW7 Anop Singh who was witness to the arrest of the accused that even after IV2 months after the time of incident, the accused was wearing the same underwear and that was taken in custody and was sent for examination to FSL from where a positive report came against the appellant which clearly suggests that the investigation itself was not fair. 9. Learned public prosecutor submitted that the trial Court rightly relied upon statement of the victim whose statements were recorded twice, one on 27.05.2004 and another on 07.10.2004, which are fully corroborated with the statement of her husband PW4 Mala Ram and even if two witnesses turned hostile, then also the allegations are fully corroborated by medical evidence. 10. We considered the submissions of learned counsel for the appellant and learned public prosecutor and perused the record. 11. 10. We considered the submissions of learned counsel for the appellant and learned public prosecutor and perused the record. 11. It is the case of the complainant that the incident occurred at about 3:00 PM in the daylight on 31.08.2001. The complainant reached to his house at about 4:00 PM and got the knowledge of the incident which occurred with his wife. According to the complainant, he collected large number of persons and went to the house of the appellant and did not found the accused at his residence than the complainant protested before appellant's brother. The conduct of the complainant is unusual as for such grave offence, first he says that he tried to contact/search the accused without giving any reason that what for, this search was made by the complainant Be it as it may be, according to the complainant, he got the knowledge of the incident as well as about the offender within an hour of the incident yet, the FIR was lodged after 24 hours, on the next day in the evening at about 5:45 PM. The explanation given by the complainant for the delay in lodging the FIR is hardly any explanation. However, if this fact itself of delay is ignored, even then according to the complainant, at the time of commission of offence, Ram Pratap and wife of Shispal Rajput reached on the spot and they both have been produced by the prosecution as PW5 and PW6. Both these witnesses did not support the case of the prosecution. 12. So far as evidence of PW2 is concerned, that is most important and in such cases, accused can be convicted on the basis of solitary evidence of victim as no lady would like to level the allegation which may affect herself. In the examination-in-chief, though victim levelled allegation against the appellant for committing rape, she stated that one Anji and another boy saved her from the appellant. In her statement, she did not gave the name of the other boy. Said Anji has not been produced. In her statement recorded on 07.10.2004, PW2 victim introduced Lichu Ram as eye witness and further stated that Anji saw the accused taking (by lifting) the victim. These are material improvements in the evidence of the complainant. In her statement, she did not gave the name of the other boy. Said Anji has not been produced. In her statement recorded on 07.10.2004, PW2 victim introduced Lichu Ram as eye witness and further stated that Anji saw the accused taking (by lifting) the victim. These are material improvements in the evidence of the complainant. In the FIR, the name of wife of Shispal Singh has been given and she did not support the statement of victim PW2. 13. The victim Chusa Devi stated that the accused bite her hands and face but as per the medical report and statement of PW1 Dr. K.K. Mishra, no injury was found on the face of the victim. The victim was examined on 01.09.2001 and the doctor stated that no positive opinion could have been given for recent past intercourse. Three minor injuries on left arm and right arm could be result of any abrasion. The victim in her statement recorded on 27.05.2004 disclosed her age to be 40 years whereas when her statement was again recorded on 07.10.2004, she disclosed her age as 45 years. As per PW3, the victim was of the age of 60-65 years. As per the victim's husband, their son was of the age of 25 years and was married. The victim's husband in cross examination stated that the victim had several injuries and blood was oozing from various parts as well as from private part of the victim including from the face of the victim which is just contrary to the medical evidence. The victim herself has not stated so in her statement. Therefore, it is unsafe to rely upon both the witnesses namely, victim and her husband. Apart from the above, the victim in cross examination admitted that she herself lifted her clothes (Ghagra). 14. The FSL report showing the presence of human semen on the underwear of the appellant also cause serious doubt on the investigation because of plain and simple reason that the prosecution story cannot be believed that the person who has committed crime of rape will keep the same underwear wearing for IV2 months and in same condition. 15. 14. The FSL report showing the presence of human semen on the underwear of the appellant also cause serious doubt on the investigation because of plain and simple reason that the prosecution story cannot be believed that the person who has committed crime of rape will keep the same underwear wearing for IV2 months and in same condition. 15. In the totality of facts and circumstances of the case, we are of the view the story as set up by the prosecution does not stand to any reason and the evidence which has been produced on the record are absolutely unreliable evidence. 16. At this juncture, we would like to mention here that since the charge under Section 376 Indian Penal Code has not been proved, therefore, there is no question of the appellant being held guilty of offence under Section 3(1)(xii) of SC/ST Act. 17. Consequently, this appeal is allowed, the impugned judgment dated 03.11.2004 is set aside. The appellant is acquitted for the charges referred above. The appellant be released forthwith if not needed in any other case.Appeal allowed. *******