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2013 DIGILAW 1244 (RAJ)

Sita Ram v. State of Rajasthan

2013-07-10

AMITAVA ROY

body2013
JUDGMENT 1. - Being convicted under Section 376 IPC and sentenced to suffer seven years rigorous imprisonment and to pay a fine of Rs. 500/-, in default, to undergo further one month's rigorous imprisonment, the appellant has challenged the judgment and order dated 7.6.1989 passed by the learned Sessions Judge, Tonk in Sessions Case No. 32/87. The prosecution case is traceable to an information lodged on 20.2.1987 by Ram Prasad, father of the victim Uganta with the Police Station, Sadar Tonk, alleging that on 19.2.1987 at about 4:00/5:00 p.m., while his said daughter, aged about six years was at a nearby well alongwith her younger brother, the appellant committed rape on her. The informant mentioned that having heard the cries of her daughter, he rushed to the place of occurrence and saw bleeding injuries in her private parts. He mentioned about the presence of one Gopal and his wife at the site as well. According to him, he could not immediately lodge the information due to the non-availability of means of transport. On the basis of the information, the police registered a case under Sections 342, 376 & 323 IPC. When confronted with the charge, the accused denied the same and was thus made to stand trial. The prosecution thereafter examined 12 witnesses and also exhibited several documents. The appellant stood by his denial of the charge in course of his examination under Section 313 Cr.P.C. However, he declined to adduce any evidence in defence. On the conclusion of the trial, by the impugned judgment and order, he was convicted and sentenced as above. 2. Before weighing the arguments advanced, it would be appropriate to record the evidence of the relevant witnesses in short. 3. PW-1, the informant stated that on the date of the occurrence, while he and his wife were working on the field, their daughter Uganti aged about 6/7 years alongwith her younger brother, was at a nearby well. It was about 4:00/5:00 p.m. in the evening. The witness stated that he on hearing the cries of his daughter, went near the well and saw the appellant committing rape on her. He mentioned that then, his wife also reached the spot followed by Gopal. He proved the FIR. In cross-examination, this witness stated that he found his daughter lying about a feet away from the well. The witness stated that he on hearing the cries of his daughter, went near the well and saw the appellant committing rape on her. He mentioned that then, his wife also reached the spot followed by Gopal. He proved the FIR. In cross-examination, this witness stated that he found his daughter lying about a feet away from the well. He also stated that at the time of the incident, his wife was about 15 feet away from the place of occurrence. 4. PW-3 Dr.G.C.Jain testified that on 20.2.1987, he had medically examined the victim. He proved the report Ex.P-3 and stated to have detected abrasions on her body. He deposed further that on local examination, blood stains on her wearing apparels over both labia major a were detected, and inner aspects of both thighs were found present. A laceration on her left vaginal wall was also detected. He stated that though the hymen of the victim was intact, some bleeding was present. That her vaginal swab was taken, was mentioned by him. The witness opined that at the relevant point of time, the victim was aged 6 to 7 years, and that, rape had been committed on her. 5. PW-5 Choti, mother of the victim stated that at the time of the incident, she was working on the field about 2 feet away from the place of occurrence, where she was found lying when she reached there. She stated that the appellant had thrown her on the ground and on this as she cried out, the witness rushed to the site. She however, admitted of not having seen the actual act of sexual intercourse. She stated to have seen bleeding from the private parts of her daughter. 6. PW-6 Gopal is not an eye witness to the incident, though he had reached the place of occurrence after the alleged act. 7. The FSL report Ex.P-6 discloses that human semen was detected on the dhoti of Sita Ram and ghaghra of the victim, but no semen was however, detected in the vaginal swab of the prosecutrix. 8. The testimony of the victim was recorded by the learned trial court, after being satisfied that she had the maturity of understanding the questions put to her. 8. The testimony of the victim was recorded by the learned trial court, after being satisfied that she had the maturity of understanding the questions put to her. On queries made by the learned trial court, she admitted to have accompanied her father to the court and also stated that the appellant had overpowered her, and that, she bled from her private parts as told by him (her father). In course of the investigation, the investigating officer also prepared a sketch map of the site plan, Ex.P-11, which though referred to the place of occurrence and also the points at which the parents of the victim were present, the respective distances were not specified. 9. Mr. Jain has argued that the prosecution case is liable to be rejected on the ground of delay in filing of the FIR, in absence of any convincing explanation therefor. According to him, if the evidence of PW-1 & PW-5, parents of the victim is believed, the allegation levelled against the appellant ought to be rejected as unfounded as such a daring act is otherwise an impossibility. Apart from contending that the version of PW-1, Ramprasad in his first information to the police, is inconsistent with his testimony at the trial, the learned counsel has emphasised that the evidence of the victim, as is apparent on the face of the record, is a tutored one and is liable to be rejected in limine. The learned counsel argued that the injuries referred to by the medical witness as claimed to have been found on the body of the victim, per se do not establish the culpability of the appellant. Not only the appellant has been framed for his strained relationship with the father of the victim, at this distant point of time, the impugned judgment and order, if sustained, would result in travesty of justice, he maintained. 10. The learned Public Prosecutor has argued that the evidence of the prosecution witnesses, both oral and documentary, has proved beyond all reasonable doubt, that the appellant had attempted to commit rape on the victim. Ruling out the plea of false implication to be baseless Mr. Choudhary has urged that the evidence of the prosecutrix, having regard to her age, ought not to be discarded. Ruling out the plea of false implication to be baseless Mr. Choudhary has urged that the evidence of the prosecutrix, having regard to her age, ought not to be discarded. Further it being evident from the testimony of PW-6, Gopal that immediately after the incident, the appellant was found fleeing, his involvement in the offence is amply established, he insisted. 11. I have duly considered the evidence on record and have weighed as well the rival arguments. 12. Though the incident had occurred on 19.2.1987, the FIR was lodged on 20.2.1987. The informant, PW-1 mentioned in his evidence that for want of adequate means of communication, he could not lodge the information earlier. Having regard to the fact that the occurrence had taken place in a village, and that, it is not unlikely that the explanation furnished is true, I am not inclined to dismiss the prosecution case on the ground of delay. Vis-a-vis the rape, it is however, difficult to conclude without any manner of doubt that the incident had occurred in the manner, as projected by the prosecution. The testimony of PW-1, Ramprasad, PW-5, Choti and PW-8, the prosecutrix does not inspire confidence to conclude that the prosecution has been able to prove the charge beyond all reasonable doubt. Not only it is highly improbable that the appellant could have committed the offending act being fully aware that the parents of the victim were barely a feet away from the place of occurrence, in fact there is no direct evidence of commission of rape. The evidence of the prosecutrix even if accepted on the face value, does not prove the commission of an act to be construed as rape in law. Though the presence of human semen in her wearing apparels as well as in the dhoti of the appellant is an incriminating piece of evidence, the fact that on medical examination, her hymen was found to be intact, detracts from the proposition that he (appellant) had committed rape on her. Moreover, her vaginal swab did not indicate presence of human semen. The prosecutrix was frank enough to disclose to the court that her statement was given, as desired by her father whom she had accompanied. The medical evidence is also to the effect that the injuries found on her body are possible on a fall. 13. Moreover, her vaginal swab did not indicate presence of human semen. The prosecutrix was frank enough to disclose to the court that her statement was given, as desired by her father whom she had accompanied. The medical evidence is also to the effect that the injuries found on her body are possible on a fall. 13. On a cumulative consideration of all above, I am of the opinion that the charge of rape against the appellant has not been established beyond all reasonable doubt. He is thus entitled to acquittal therefrom. The impugned judgment and order is therefore, not sustainable in law and on facts and is thus set aside. The appeal is allowed. The appellant stands discharged from his bail bonds.Appeal allowed. *******