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2011 DIGILAW 2353 (RAJ)

Harlal v. State of Rajasthan

2011-11-04

PRASHANT KUMAR AGARWAL

body2011
JUDGMENT 1. - The accused-appellants have preferred these appeals under Section 374 Cr.RC. against the judgment of conviction and order of sentence dated 07.06.2008 passed by the Additional Sessions Judge (Fast Track) No.1 Ajmer in Sessions Case No. 59/2006 whereby they have been convicted for offences under Sections 376 (2) (g) and 366 IPC and each of them has been sentenced for rigorous imprisonment of ten years and a fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment for six months for offence under Section 376 (2) (g) IPC and rigorous imprisonment for five years and a fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment, for six months for offence under Section 366 I PC. The substantive sentences were ordered to run concurrently. Since these appeals arise out of the same impugned judgment and order, they were heard together and are being disposed of by this common judgment. 2. The brief relevant facts for the disposal of these appeals are that the complainant PW3-Gulabnath, father of the prosecutrix, submitted a written report (Ex.D3) on 29.3.2006 at 12.30 p.m. before Police Station Gegal (District Ajmer) alleging therein that his daughter (prosecutrix) aged 14 years in the evening of 25.3.200S went in the forest to collect fire-woods but since then she has not returned and in spite of efforts being made for her search she has not been found. It was further stated that by a secret source, it has come into their knowledge that the appellants Setha, Vishram and Shankar have abducted his daughter. It was also stated therein that Shri Dharma Nath and Madan Nath have seen them taking his daughter with them. On the basis of that report, FIR No. 43/2006 for offences under Section 363 and 366 IPC was registered and after usual investigation charge sheet was filed against present appellants and one Shri Amar Chand for offences under Sections 363, 366 and 376 (2) (g) IPC. During the course of investigation, the prosecutrix was recovered on 31.3.2006 from the custody of RPF, Jaipur and her statement under Section 164 Cr. RC. was also recorded and she was medically examined. In order to prove the charges, the prosecution produced oral as well as documentary evidence, whereas each of the appellants in his statement under Section 313 Cr.RC. During the course of investigation, the prosecutrix was recovered on 31.3.2006 from the custody of RPF, Jaipur and her statement under Section 164 Cr. RC. was also recorded and she was medically examined. In order to prove the charges, the prosecution produced oral as well as documentary evidence, whereas each of the appellants in his statement under Section 313 Cr.RC. denied the allegation and evidence of the prosecution and specifically stated that he has been falsely implicated in the case. In their defence, the appellants produced DW1-Roopa, DW2-Madan, DW3-Harlal and DW4-Bhagchand and they also produced documentary evidence. 3. The trial court after appreciating and evaluating the evidence available on record and hearing both the parties, arrived at the conclusion that the appellants are guilty of offences under Sections 366 and 376 (2) (g) IPC and by passing the impugned judgment and order convicted and sentenced the appellants as stated above. Hence, the instant separate appeals.It is pertinent to note that the trial Court found that the prosecution has failed to prove that the time of incident the prosecutrix was below the age of 18 years. It is also to be noted that the trial Court acquitted the accused-Amar Chand from the charges levelled against him under Sections 366 and 376 IPC. During the course of hearing of these appeals the prosecution has not challenged the finding of the trial court regarding age of the prosecutrix. 4. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 5. On consideration of the evidence available on record in the light of the relevant legal provisions and the case law, I am of the considered view that both the appeals are liable to be allowed and the impugned judgment and order is required to be set aside for the following reasons- (i) Because the first information in the form of written report (Ex.D3) was submitted with undue delay and no satisfactory explanation has been given by the prosecution for the delay and the FIR which is the very foundation of the case, is a suspicious document. The incident is of the evening of 25.3.2006. The incident is of the evening of 25.3.2006. The explanation for the delay as furnished in the report itself is that they were searching for the prosecutrix from their relations, but she had not been found. On the other hand, it has also been stated in the report that from a secret source it had come in their knowledge that the prosecutrix has been abducted by three appellants named in the report and Shri Dharma Nath and Shri Madan Nath have seen them abducting the prosecutrix. As aforesaid this report was submitted by the compiainant, father of the prosecutrix, in his cross-examination he has stated that on the date of incident itself i.e. 25.3.2006 Shri Dharma Nath and Shri Madan Nath about one hour after the incident, apprised him that the three appellants named in the report have taken the prosecutrix with them and they also helped him to search the prosecutrix. It is thus, clear that according to the complainant himself on the date of incident itself, it came into his knowledge that the three named appellants have abducted the prosecutrix, but even then no report was lodged immediately and instead efforts were made for search of the prosecutrix from the relatives. This conduct of the complainant seems to be very unnatural. When on the date of incident it came into his knowledge that his daughter has been abducted by the named persons there was no reason and need for him to make search of her from his relatives. From the court statement of the complainant it also appears that when it came into his knowledge that the named persons have abducted his daughter, search was made in their houses also, but without any success. In the written report, it has also been mentioned that from a secret source, it came into his knowledge that the named appellants have abducted his daughter. Thus, conflicting facts have been mentioned by the complainant when and how it came into his knowledge about the abduction of his daughter. He has failed to explain when on the date of incident itself, it came into his knowledge that the prosecutrix has been abducted by the named appellants, why the report was not lodged immediately but efforts were made to search her as if she has gone somewhere on her own. He has failed to explain when on the date of incident itself, it came into his knowledge that the prosecutrix has been abducted by the named appellants, why the report was not lodged immediately but efforts were made to search her as if she has gone somewhere on her own. This makes that part of the report doubtful that Shri Dharma Nath and Shri Madan Nath were the eye-witnesses of the incident and they apprised the complainant about the incident. It has also not been explained what was the secret source from which it came into his knowledge that three named appellants have abducted the prosecutrix. If that is so, it has not been explained how the three appellants were named in the FIR. It is quite possible that Dharma Nath and Madan Nath might have told the complainant that his daughter willingly went with the named appellants and that is why search was made not only for the prosecutrix but also for the appellants named in the FIR. It is to be noted that during trial both these persons did not support the prosecution and they have been declared hostile. In his cross examination by the prosecution each of them has denied the suggestion that he apprised the complainant that named appellants have abducted the prosecutrix. Hon'ble Supreme Court in the case of Thufia Kali v. The State of Tamil Nadu, reported in AIR 1973 SC 501 has held that "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 above report can hardly be overestimated 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 afterthought. 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. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. 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 satisfactory explained." (ii) The initial versions of the incident apprised by the prosecutrix to more than one person did not come before the Court and in absence of that the statement recorded during trial is not reliable, more particularly in the light of the fact that the prosecutrix has improved her version of the incident during trial in comparison to the statements recorded under Section 161 and 164 Cr.P.C. during investigation and there are several major contradictions, infirmities and discrepancies in her statement. The prosecutrix has admitted that she apprised about the incident to the police personnel which met her in Jaipur and her statement was also recorded by them and she put her signature on that statement. According to prosecution on 31.3.2006, the prosecutrix was found alone at the plat-form of Railway Station Jaipur by PW7-Ram Kishore Yogi, a Head-Constable of RPF, Jaipur, and she was taken from there to the Police Station RPF, Jaipur. According to PW7-Ram Kishore Yogi on his asking the prosecutrix told him about the incident and he apprised about that to PW6-Shri Kailash Chandra Meena, RPF Inspector, but the witness during trial failed to state what was the version of the incident which the prosecutrix told him at the railway station. In his cross-examination the witness has stated that name of accused were not apprised and she told that 5-6 persons were involved. Similarly, PW6-Shri Kailash Chandra Meena has also stated that the prosecutrix orally apprised him about the incident, but he did not inform the Police Station Gegal about the incident and only informed that she has been found. Shri Kailash Chandra Meena did not state about the version of the incident during trial. Thus, it is clear that in the morning of 31.3.2006, the prosecutrix apprised two police personnel of RPF Jaipur about the incident but that version of the incident has not come before the Court. Shri Kailash Chandra Meena did not state about the version of the incident during trial. Thus, it is clear that in the morning of 31.3.2006, the prosecutrix apprised two police personnel of RPF Jaipur about the incident but that version of the incident has not come before the Court. Apart from that according to prosecution itself, PWT Shri Kan Singh as an investigating officer went to RPF, Jaipur to recover the prosecutrix from Police Station Gegal. Although, the prosecutrix apprised this witness also about the incident, but her statement was not recorded by him. When FIR was already registered and it came into the knowledge of Police Station Gegal that the prosecutrix is in the custody of RPF Jaipur and PW17-Shri Kan Singh went to recover the prosecutrix, it was his duty to record the statement of the prosecutrix at the first opportunity. It is to be noted that the statement of prosecutrix under Section 161 Cr.P.C. was recorded in the night of 31.3.2006 in the Police Station Gegal in the presence of her parents and other family members. Similarly, the prosecutrix in her cross examination has stated that the appellants left her at Railway Station Kishangarh where one lady met her and she narrated the incident to her in detail. During investigation also the prosecutrix in her statement under Sections 161 & 164 Cr.RC. referred about that lady but even then no efforts were made by the investigating agency to trace out that lady and record her statement and then produce her as a witness during trial. In absence of statement of that lady, the version of the incident as stated by the prosecutrix to her immediately after the incident did not come before the Court. I am of the view that in this set of facts adverse inference is liable to be taken against the prosecution. (iii) The evidence available on record is a clear indication of the fact that the conduct of the prosecutrix from the very beginning to the end has been very unnatural and suspicious and she cannot be said to be trust-worthy witness. (iii) The evidence available on record is a clear indication of the fact that the conduct of the prosecutrix from the very beginning to the end has been very unnatural and suspicious and she cannot be said to be trust-worthy witness. There are several major contradictions and improvements in her Court statement in comparison to her statement recorded under Sections 161 & 164 Cr.P.C. According to the prosecutrix herself after the incident all the appellants brought her to the Railway Station Kishangarh and threatened her not to return to her home and they also gave her Rs. 100/- and after leaving her alone at the Railway Station, the appellants left that place but even then the prosecutrix did not raise alarm and made any effort to return to her home but instead she without any hitch merely on the asking of a stranger lady accompanied with her and by a train went to Phulera. Even if for the sake of arguments it is admitted that due to threat given by the appellants she was under fear until she was left alone at the Railway Station and that is why she did not raise alarm but as soon as the appellants left that place there remained no such fear that she could not have returned to her home and asked that lady or any other person present at the railway station to help her for returning to her home. The evidence available on record also reveals that even thereafter also, there were several opportunities to the prosecutrix to return to her home or narrate about the incident to the persons who were in the train or in the town of Phuiera, but no efforts were made in this regard and she remained with the acquitted accused-Shri Amar Chand for about five days. This conduct of the prosecutrix makes the whole prosecution case very suspicious and doubtful. It can not be believed that during the period in which the procecutrix remained with Shri Amar Chand, she got no opportunity to return her home or to narrate about the incident to the persons who met her during this period. According to the prosecutrix, the appellants who are five in number committed rape upon her one after another and then left her at the railway station. According to the prosecutrix, the appellants who are five in number committed rape upon her one after another and then left her at the railway station. In this situation she could not have behaved in a normal way, but her statement before the Court reveals that she in a normal way without any hitch accompanied with that stranger lady went to Phuiera by a train and merely on asking of that lady remained with Shri Amar Chand for five days. The prosecutrix failed to explain that when she apprised that stranger lady about the whole incident in detail even then why she did not request that lady or any other person present at the railway station to help her to return to her home. Apart from that, there are several major contradictions and improvements in her Court statement. In her statement recorded under Section 161 Cr.P.C. she has stated that that lady took her to her house at Phuiera where Shri Amar Chand came and he took her with him to his house and she remained with him for five days whereas in her statement during trial she has stated that that lady took her to the Tea-Stall of Shri Amar Chand and after leaving her with Amar Chand, she went away and from there Shri Amar Chand took her to her house. According to prosecutrix she never went to the house of that lady. Further in her statement under Section 161 Cr.RC. she has stated that Shri Amar Chand brought her from Phuiera to Kishangarh and bought her a rail ticket for Jaipur and said that he is also reaching to Jaipur where he will join her and she waited for him at the Jaipur Raiiway Station whereas in her Court statement she has stated that that very lady brought her from Phuiera to Kishangarh and she and that lady together boarded a train from Kishangar TT and in the way that lady alighted at the Railway Station Phuiera and she alone came to Jaipur by that train. Even further in her statement recorded under Section 161 Cr.RC., the prosecutrix has not stated that after taking the tea offered by that lady she became unconscious and in that condition she was brought to Phuiera from Kishangarh whereas before the trial court she has stated after taking tea she became unconscious and in that condition she was brought from Kishangarh to Phuiera. it appears that theory of unconsciousness has been developed to explain the reason why she failed to narrate about the incident to the passengers who were present in the coach in which she and that lady were travelling from Kishangarh to Phuiera. (iv) According to the prosecutrix the incident occurred when she was going to take fire-woods from the forest. She has stated that at that time she was having in her possession only a rope, whereas when she was recovered from the custody of RPF on 31.3.2006, a black coloured bag containing one Towel, one Odni and one Saree was also recovered. At the time of recovery she was wearing a Lehanga, Loogri and Blouse. No plausible explanation has come out from where and how that bag, towel, odni and saree came in her possession. Although, the prosecutrix has tried to state that very lady provided her that bag but the explanation offered by her is not reliable. It is hard to believe when she was forced by that lady to go from Kishangarh to Jaipur by a train, she accepted the bag provided by that lady. (v) From the evidence available on record this fact is also very doubtful that the prosecutrix was recovered on 31.3.2006 from the custody of RPF Jaipur. According to the prosecution when the prosecutrix was recovered, recovery memo Ex.D1 was prepared at Jaipur itself. According to this document, the prosecutrix was recovered in the presence of one Shri Bajrang and PW1-Shri Chhoga Nath and at that time father and mother of the prosecutrix were also present whereas in their statement each of these witnesses has specifically denied that he went to Jaipur and in his presence the prosecutrix was recovered and the recovery of document Ex.D1 was prepared. The prosecutrix herself has stated that her father and mother did not come to Jaipur with police. These facts are a clear indication that the police has tried to conceal the real facts about the recovery of the prosecutrix. The prosecutrix herself has stated that her father and mother did not come to Jaipur with police. These facts are a clear indication that the police has tried to conceal the real facts about the recovery of the prosecutrix. (vi) According to the prosecutrix on 25.3.2006, she was raped by the appellants who are five in number and thereafter she was continuously raped by acquitted accused-Shri Amar Chand for about 4 to 5 days against her will and without her consent but even then at the time of medical examination no injury on the private parts and other parts of her body were found. Even no definite opinion has been given regarding recent intercourse/rape with the prosecutrix. Although, non presence of injuries on the private parts or other parts of the body of a prosecutrix is not always an indication of non commission of rape or intercourse with her consent but in the present case looking to the other facts, non-existence of injuries on the body of the prosecution attains importance and it also makes the prosecution story doubtful. Even the prosecutrix has admitted in her cross examination that when she was medically examined, no injury was present on any part of her body. She has also admitted that she did not complain to the doctor regarding pain in her body. (vii) Although in her examination-in-chief, the prosecutrix has tried to state that since before the incident she was acquainted with the appellants, but during her cross examination she has admitted that the appellants were not known to her and she saw them for the first time at the time of incident. She has failed to explain from what source she came to know the names of the appellants. It is an admitted fact that no identification parade was conducted during investigation, therefore, identification of appellants as the persons involved in the incident for the first time during trial is not reliable. 6. For the reasons as stated above, I am of the considered view that it was not safe to convict the appellants only on the basis of the evidence available on record as discussed above but the learned trial court without considering the evidence in a right perspective has wrongly convicted and sentenced the appellants for the charges levelled against them. For the reasons as stated above, I am of the considered view that it was not safe to convict the appellants only on the basis of the evidence available on record as discussed above but the learned trial court without considering the evidence in a right perspective has wrongly convicted and sentenced the appellants for the charges levelled against them. For the above reasons, both the appeals are liable to be allowed and the judgment of conviction and order of sentence passed by the trial court is required to be set aside. 7. Consequently, both the appeals filed on behalf of the appellants are allowed and the judgment of conviction and order of sentence dated 07.06.2008 in Sessions Case No. 59/2006 is set aside and the appellants 1. Har Lal son of Shri Panchu, 2. Bhag Chand @ Sedu Ram son of Shri Jagdev, 3. Visram son of Shri.Sharwan Lal, 4. Shankar Lal son of Shri Onkar and 5. Kalu Singh @ Phool Singh son of Shri Prem Singh are acquitted of the charges levelled against them. The accused-appellants are in custody, they are ordered to be set free immediately, if not required in any ether criminal case.Appeal Allowed. *******