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2010 DIGILAW 683 (RAJ)

Ramdhan v. State of Rajasthan

2010-03-25

MAHESH BHAGWATI

body2010
JUDGMENT Han'ble BHAGWATI, J.-Challenge in this appeal is to the judgment and order dated 11th June, 1986, whereby the learned Additional Sessions Judge, Gangapur City convicted the accused appellant Ramdhan in the offence under Section 376 of Indian Penal Code and sentenced him to rigorous imprisonment of four years and a fine of Rs. 400/-; in default of payment of fine, to suffer further rigorous imprisonment of four months. 2. The facts of the prosecution case, in nut shell, are thus: "That on 11th August, 1984, the cow of complainant PW.3 Buddha went for grazing on a hill. The cow did not return to home, hence, at the early hours of 5th August, 1984, the complainant along-with his wife and brother went on a hill in search of their cow. All these three were searching the cow at different places, but not too far from each other. It is stated that the accused Ramdhan Gurjar also had come on the hill to graze his buffaloes. It is alleged that he suddenly caught hold of Rukmani and made her to lie on the ground. The accused forcibly ravished her. On hearing the screams of Rukamni, her husband and his brother rushed to the spot where they found that the accused had made Rukmani to lie on the ground and he was committing rape upon her. Having seen them, the accused fled from there after fulfilling his erotic sortie. The prosecutrix was in a floundered state. When the complainant and his wife were to go to police station for lodging the report, the accused threatened them and restrained from going to police station. On 7th August, 1981, the complainant Buddha Ram gave a written report EX.P.1 to Station House Officer, Police Station Garhmora, who lodged the FIR Ex.P4 and commenced investigation. The Investigating Officer prepared site plan Ex.P.2, got the prosecutrix medically examined, recorded the statements of the witnesses under Section 161 of Cr.P.C., arrested the accused and got him also medically examined. After completion of investigation, the police filed charge sheet against the accused in the Court. The accused Ramdhan was indicated for the offence under Section 376 of Indian Penal Code, who pleaded not guilty and claimed to be tried. In order to further its version, the prosecution examined only five witnesses. After completion of investigation, the police filed charge sheet against the accused in the Court. The accused Ramdhan was indicated for the offence under Section 376 of Indian Penal Code, who pleaded not guilty and claimed to be tried. In order to further its version, the prosecution examined only five witnesses. On being asked to explain the circumstances appearing against him in the statements of witnesses under Section 313 of Cr.P.C., the accused claimed himself to be innocent and submitted that Laxman Sarpanch, on account of political rivalry, got a false case registered against him for the reason that his brother Kalyan and Laxman Sarpanch had contested and election of Sarpanch. On completion of trial, the court convicted the accused appellant and sentenced him as indicated here-in-above." 3. Heard learned counsel for the accused-.appellant, learned P.P. appearing for the State and carefully perused the relevant material on record. 4. The learned counsel for the appellant canvassed that the First Information Report Ex.P/4 was lodged after an inordinate delay of more than two days, which cast doubt about its genuineness. The prosecution has not furnished any satisfactory explanation of this delay, hence it proves fatal to the prosecution. He further canvassed that the prosecutrix in her deposition before the Court stated that the accused while ravishing her, broke her bangles and torn blouse, but the investigating officer is not found to have seized the broken pieces of bangles from the place of occurrence nor seized the blouse. Not only this, site plan Ex.P/2 also does not speak of any incident of rape having been committed there. No independent witness has been examined to support the case of the prosecution. Hence, merely on the basis of the statement of the prosecutrix, the accused should not be convicted. In view of these circumstances, the appeal deserves to be allowed and the accused appellant may be acquitted. 5. E converso, the learned PP appearing for the State defended the impugned judgment and stated the same to be just and proper. He contended that the statements of prosecutrix PW.2 Rukmani have been duly supported by PW.3 Buddha and PW.4 Bhonrya. PW.5 Shri Shamsher Singh, who is the Investigating Officer of the case, has also supported the prosecution version. 5. E converso, the learned PP appearing for the State defended the impugned judgment and stated the same to be just and proper. He contended that the statements of prosecutrix PW.2 Rukmani have been duly supported by PW.3 Buddha and PW.4 Bhonrya. PW.5 Shri Shamsher Singh, who is the Investigating Officer of the case, has also supported the prosecution version. There is no reason to disbelieve their testimony and from their statements, the offence under Section 376 of Indian Penal Code' is very well proved against the accused appellant and thus, the appeal deserves to be dismissed. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant material including the statements of the prosecution witnesses, it is noticed that the occurrence of this case took place early in the morning of 5th August, 1984, but the First Information Report is found to have been lodged by the complainant Buddha at 3.00 PM on 7th August, 1984. The prosecution has not furnished any reasonable and satisfactory explanation of this inordinate delay in lodging the FIR, which is found to be fatal to the prosecution. 7. In Thulia Kali vs. State of Tamil Nadu reported in AIR 1973 SC page 501, the Hon'ble Apex Court has observed thus: "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. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 8. In the above case, the occurrence was not reported for more than 20 hours. story as a result of deliberation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 8. 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. In the instant case also, PW.3 complainant Buddha gave written report Ex. P.1 to SHO, Police Station Garhmora at 3.00 PM on 7th August, 1984. The explanation furnished by the complainant is that he and his wife were restrained by the accused from going to police station. They were also put in fear of instant death if they lodged the report of this incident with the police. To utter surprise of this Court, this threatening of the accused did not come in the way on 7th August, 1984. It has emerged from the evidence of PW.2 Rukamani that Laxman Sarpanch accompanied her husband when he went to lodge the FIR in the police station but PW.2 Buddha Ram stated that he went alone to the Police Station. He further deposed that he reached the Police Station at late hours on the same day of occurrence i.e. on 5.8.1984 but the FIR is found to have been lodged on 7.8.1981 that too at 3.00 PM. He also stated on oath that his wife came to Police Station next day along with Sarpanch but the prosecutrix's statements arc altogether distinct to the statements of her husband. She deposed in the Court that Laxman Sarpanch accompanied them to the Police Station and it is he who himself scribbled the report. If the incident of rape was true and the complainant had the support of Laxman Sarpanch, he would have gone to police station to lodge the report soon after the occurrence, but after passing more than 50 hours, the complainant is found to have lodged the report with the police, whereas the distance between the place of occurrence and the police station is only 5 kms. The prosecution has utterly failed to furnish reasonable and satisfactory explanation of more than 50 hours inordinate delay in lodging the FIR. Hence, this delay is found to be fatal to the prosecution. 9. The prosecution has utterly failed to furnish reasonable and satisfactory explanation of more than 50 hours inordinate delay in lodging the FIR. Hence, this delay is found to be fatal to the prosecution. 9. The second thrust of argument of the learned counsel for the accused appellant is that neither the prosecution is found to have sustained any injury on her genital parts nor the broken pieces of bangles and torn blouse were recovered by the investigating officer, whereas PW.2 Smt. Rukmani in her cross examination has unequivocally deposed that the accused Ramdhan made her to lie on the ground with a jolt, as a result of which she sustained injuries on her hands, back, head and other places of the body. All these circumstances cause doubt upon the veracity of the testimony of the prosecutrix and other witnesses. The accused has been falsely implicated by the prosecutrix on account of political rivalry. The prosecution has utterly failed to bring home the guilt against the accused, hence he deserves acquittal. 10. Adverting to the statements of PW. 2 Smt. Rukmani, it is found that she corroborated the prosecution story in her examination-in-chief. She deposed that on being asked by accused Ramdhan, she told that she was searching her cow. The accused replied that he would tell the location of her cow and while stating the same, he came nearer and nearer, suddenly caught hold of her and made her to be on the ground. She further deposed that the accused lifted her petticoat and forcibly penetrated his penis into her vagina and thus, ravished her. She screamed loudly and hearing her screams, her husband and his brother, both, came there. The accused fled from there after fulfilling his wide lust. During the commission of rape her bangles were got broken. In her cross-examination, she deposed that she sustained injuries on her back, hands, head, waist and other parts of the body. The accused torn off her blouse. Her blouse, petticoat and fariya got blood stained. The accused ravished her about 10-15 minutes, but the medical examination report Ex. P.1 does not suggest any injury on the genital parts of the prosecutrix. Of course as per Ex. The accused torn off her blouse. Her blouse, petticoat and fariya got blood stained. The accused ravished her about 10-15 minutes, but the medical examination report Ex. P.1 does not suggest any injury on the genital parts of the prosecutrix. Of course as per Ex. P.1, she is found to have sustained abrasion on left fore arm, right fore arm above the breast and tenderness over back of the abdomen, but no injury was found on the back and head of the prosecutrix by PW.1 Dr. Kishan Lal Mcena. PW.1 Dr. Kishan Lal Meena deposed before the Court that he had seen the clothes of the prosecutrix, but at the time of examination he did not find any stain of blood thereon. He did not find any semen also on the petticoat. The Investigation Officer also did not seize these clothes. He did not seize even the torn blouse, which' could prove to be very sound evidence' for the offence of rape. 11. PW.5 Shamsher Singh is found to have investigated the case. He deposed in his cross-examination before the Court that no circumstance with regard to the commission of an offence of rape was found on the place of occurrence as one day previous night only, there had been rains. He also deposed that he had not found any broken piece of bangles on the spot. He did not see the torn off blouse also. Albeit PW.3 Buddha and PW.4 Bhonrya have supported the statements of PW.2 Smt. Rukmani, but both these witnesses happened to be real brothers and PW.3 Buddha is the husband of the prosecutrix. It has emerged during evidence that there were other persons also, who were grazing their cattle on the hill, but no independent person has been made a witness in this case. 12. To prove the offence of rape, it is essential for the prosecution to establish that the accused had sexual inter-course with the' prosecutrix forcibly, against her will and without her consent. Albeit the prosecutrix stated that the accused caught hold and made her to lie on 'the ground and forcibly penetrated his penis into her vagina and despite' her 'full resistance, he ravished her and finally fled after quenching his wide lust, but the circumstances which have emerged in the instant case are such, which cast doubt about the veracity of her testimony. Though the conviction can be made on the sole testimony of the prosecutrix, but it can be done only when her statements are found to be reliable and trustworthy. 13. The prosecutrix stated in her examination-in-chief that the accused had a coitus with her for about 10-15 minutes. minutes. Does it seem to be probable that the accused went on ravishing her for 10-15 minutes despite there being full resistance at her end? The bangles are said to have broken on the spot; the blouse is stated to be torn off; the clothes are also said to have been blood stained; and the whole body is stated to have been full of injuries, but neither any torn blouse was seized by the investigating officer nor any apparel was found to have been blood stained nor they are found to have is been seized by the police. The prosecutrix stated in her cross-examination that she went to Police Station in very those clothes which she was wearing at the time of occurrence. She was wearing torn blouse and she showed all her torn blouse and blood stained clothes to police at the Police Station. She further deposed that she had collected the broken pieces of bangles also and she showed those broken pieces of bangles also to the police, but the police is not found to have taken torn blouse and broken pieces of bangles in possession. E converso, the Investigating Officer deposed before the Court that he did not find any broken piece of bangles on the spot nor any blood stained cloth was shown to him. All these material contradictions emerging in the statements of the witnesses, in galore, cast doubt about the genuineness of the occurrence. It is a well settled principle of law that the man may lie but the circumstances always speak truth. Albeit PW.3 Buddha and PW. 4 Bhonrya have supported the statements of PW.2 Rukmani, but they all three are the members of one family and the manner in which the material contradictions in the statements have emerged, conviction cannot be based on their statements in the absence of independent and corroborative evidence. The learned trial Court has discussed the entire evidence at length, but failed to appreciate properly all the above circumstances, which are relevant for the decision of the case. The learned trial Court has discussed the entire evidence at length, but failed to appreciate properly all the above circumstances, which are relevant for the decision of the case. The conviction cannot be based on the sole testimony of prosecutrix if her statements are not found to be trustworthy and worthy of credence. In the instant case, even the presence of PW.2 Buddha and PW.3 Bhonrya is also found to be doubtful on the scene of occurrence. Their evidence appears to be concocted and maneuvered. The statements of the prosecutrix do not inspire confidence and it does not seem to be safe to base conviction of the accused solely on the evidence of the prosecutrix. 14. So far as the evidence of rape is concerned, it is for the prosecution to establish beyond doubt that the accused ravished the prosecutrix forcibly, against her will and without her consent. In the absence of a woman's consent, the essential feature of the Act us Rules is rape and that is totally wanting in the instant case. Neither the statements of the prosecutrix have been corroborated by the investigating officer PW.5 Shams her Singh. Since the inconsistency and material contradictions emerging in the statements of the witnesses PW.2 Smt. Rukmani, PW.3 Buddha & PW.5 Shamsher Singh are galore, their evidence cannot be said to reliable and worthy of credence. Thus, the prosecution is found to have utterly failed t6 bring home the guilt against the accused appellant. The learned trial Court, albeit, has discussed the evidence at length, but has failed to appreciate the same in right perspective. The learned trial Court totally lost sight of the fact that neither the broken pieces of bangles were recovered from the scene of occurrence, nor torn blouse and blood stained apparels of the prosecutrix were seized by the police. On the contrary, the investigating officer deposed before the Court that neither he saw any torn blouse nor any blood stain on the apparels being worn by prosecutrix. All these inconsistent and contradictory statements of witnesses and fabricated circumstances lead the Court to infer that the prosecution has miserably failed to establish the offence of rape against the accused. The impugned judgment is not found to be just and proper, nor is based on sound and cogent reasoning. All these inconsistent and contradictory statements of witnesses and fabricated circumstances lead the Court to infer that the prosecution has miserably failed to establish the offence of rape against the accused. The impugned judgment is not found to be just and proper, nor is based on sound and cogent reasoning. The reasons assigned by the learned trial Court with regard to the conviction of the accused are not found to be tenable and in these circumstances, the conviction of the accused appellant cannot be sustained. 15. For these reasons, the criminal appeal is allowed. The conviction of the accused appellant Ramdhan S/o Ramudya, by caste Gurjar, Rio Chirawada, Police Station Garhmora, District Sawai Madhopur in the offence under Section 376 of Indian Penal Code and sentence awarded thereunder are set-aside. Instead, the accused is acquitted of the offence under Section 376 of Indian Penal Code. He is already on bail. His bail bonds stand cancelled.