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2013 DIGILAW 1263 (RAJ)

Chatra v. State of Rajasthan

2013-07-12

AMITAVA ROY

body2013
JUDGMENT 1. - The instant appeal is directed against the judgment and order dated 19.11.1987 passed by the learned Sessions Judge, Tonk in Sessions Case No. 26/86 convicting the appellant under Section 376 IPC and sentencing him to undergo seven years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month in addition. 2. The prosecution case is traceable to a written report lodged by Gulab Chand (PW-2) with the Police Station, Uniara on 4.3.1986 to the effect that on the previous day i.e.3.3.1986 at about 1:30 p.m., while he was passing by the house of the accused-appellant for going to his well, he heard the cries of a child from inside the house and found the accused standing near Veena, minor daughter of Jagdish Prasad, who was lying in an unconscious state and bleeding from her private parts. It was alleged that on seeing the informant, the appellant who was without his dhoti, ran away therefrom. The informant stated that on coming out, he found Prabhu Kumhar (PW-10) coming with his camel cart from Banetha, whereupon he (informant) took the victim in his laps, placed her on the camel cart and took her for medical treatment. He stated further that at that point of time, the victim's parents were not present, but her mother Savitri arrived a little later. However, due to want of means of conveyance, information could not be lodged with the police on the very same date. On this information, a case was registered against the appellant under Section 376 IPC, and in course of the investigation, the victim was medically examined. Her wearing apparels as well as a dhoti of the appellant were seized. The vaginal swab and the apparel sezied were sent for forensic examination. On the conclusion of the investigation, charge-sheet was laid against the accused-appellant under Section 376 IPC, and he was eventually, made to stand trial as he denied the charge. 3. The prosecution examined several witnesses including Veena, the prosecutrix (PW-1), Gulab Chand (PW-2), Dr. Vasudev Belani (PW-14) who had medically examined the victim, Savitri (PW-3), her mother and Prabhu (PW-10). The statement of the appellant was recorded under Section 313 Cr.P.C., in course of which, he not only denied the charge, but also alleged that he was framed out of a property dispute with the father of the prosecutrix. Vasudev Belani (PW-14) who had medically examined the victim, Savitri (PW-3), her mother and Prabhu (PW-10). The statement of the appellant was recorded under Section 313 Cr.P.C., in course of which, he not only denied the charge, but also alleged that he was framed out of a property dispute with the father of the prosecutrix. He examined two witness in support of this plea. By the impugned judgment and order assailed, he was convicted and sentenced as above. 4. It is essential, before adverting to the arguments, to conduct a brief survey of the relevant evidence. 5. PW-2 Gulab Chand stated that on 3.3.1986 in the afternoon, while he was proceeding towards his well, he suddenly heard the cries of a child from inside a house. As he saw none outside, he approached the house from where the cries were coming and opened the door, which was closed. On opening the door, the witness saw that the appellant was sitting over victim Veena. The witness stated that on seeing him, the appellant stood up, arranged his dhoti and fled away from the place. The witness stated that he found the victim to be unconscious and bleeding profusely from her private parts. He then took the child in his arms and incidentally, on coming out of the house, he found Prabhu with his camel cart. He then took the child in the cart for medical treatment. He stated that at that point of time, the parents of the victim were not present. In cross-examination, he stated that he was the uncle of the father of the victim. He owned the FIR (Ex.P-1) and his statement to the police recorded under Section 161 Cr.P.C. (Ex.D-1). He reiterated in cross-examination that at that point of time when he had entered the house, the victim was in a unconscious state and unable to speak. He stated further that he did not either make any attempt to apprehend the appellant or raise any alarm to nab him. 6. PW-1 Veena, the prosecutrix, recorded her age to be 4 years at the trial and the learned trial court permitted her to be examined after being satisfied that she was in a mental state to understand the implication of the questions to be put to her. 6. PW-1 Veena, the prosecutrix, recorded her age to be 4 years at the trial and the learned trial court permitted her to be examined after being satisfied that she was in a mental state to understand the implication of the questions to be put to her. It appears from her statement that she was at that stage able to discern the right from the wrong and truth from falsehood. This witness noticeably, on being questioned as to whether anything happened to her vis-a-vis the appellant, kept quiet and did not speak even on repeated insistence. 7. PW-3 Savitri, the mother of the victim is not an eye witness. In substance, she stated that she on receiving the news of death in the nearby locality, had gone for mourning leaving behind the appellant to be in-charge of the victim. She stated that when she came back, she was told that her daughter had been raped. 8. PW-5 Parvati, who was a neighbour, with reference to this incident, stated that PW-2 Gulab Chand had disclosed to her that the prosecutrix had suffered injuries. The witness however, clarified that Gulab Chand did not disclose to her that the victim had been raped. 9. PW-10 Prabhu stated in his evidence that on the date of the incident, while he as returning with his cart, he found the girl child of Jagdish Prasad lying unconscious in the courtyard of her house. He however, mentioned about bleeding injuries in her private parts. This witness was declared hostile. 10. PW-14 Dr. Vasudev Belani affirmed to have medically examined the victim on 4.3.1986. With reference to the injury reports, he stated that her hymen was torn and the injury was fresh and painful. While opining that the injury suffered by the victim could have been due to penetration of the penis or any other hard substance, the witness also referred to the minor injuries on the genital of the appellant. He proved the injury reports Ex.P-18 & 19. In cross-examination, on being confronted with the injury report Ex.P-18, the witness stated that the injury on the private parts of the victim could have been sustained due to forcible sexual intercourse or some accident. 11. He proved the injury reports Ex.P-18 & 19. In cross-examination, on being confronted with the injury report Ex.P-18, the witness stated that the injury on the private parts of the victim could have been sustained due to forcible sexual intercourse or some accident. 11. PW-15 Hari Singh, the investigating officer, in cross-examination, stated that Ex.D-1 contained the statement made by Gulab Chand (PW- 1), in course of the investigation, recorded under Section 161 Cr.P.C. To reiterate, DW-1 Harji and DW-2 Ladu stated in essence that Jagdish Prasad, the father of the victim was a tenant of the house of the appellant, and that, there was some strained relationship between them in connection therewith. 12. The statement of PW-2 Gulab Chand, the central witness of the prosecution, as recorded in Ex.D-1, assumes importance. A bare perusal of that document reveals that, he stated to have witnessed the appellant to be engaged in the act of forcible sexual intercourse with the victim, when he entered the room. This runs counter to the narration made in his written report on which the investigation was initiated as well as his deposition at the trial. PW-10 Prabhu also has not supported him in full. His statement that his attention was drawn by the cries of the victim is belied by her statement that she was found unconscious and unable to speak. 13. Though the victim, Veena was a child at the time of her examination in court, it is unlikely that if the incident would have been true, she would have been so indifferent and inert as she happened to be when asked about the same. It seems that no attempt as well had been made to brief her in this regard. Though keeping her age in mind, the incident even if had occurred in the manner as projected by the prosecution, could have been forgotten by her, it is not acceptable that if true, the parents or her relations would have made no attempt to have at least the skeletal facts narrated in court through her. This assumes importance in view of consistent stand taken on behalf of the defence that the appellant had been framed due to subsisting dispute between him and the father of the victim. This assumes importance in view of consistent stand taken on behalf of the defence that the appellant had been framed due to subsisting dispute between him and the father of the victim. Though the medical evidence proves injury on her private parts, the Forensic Science Laboratory report does not show the presence of semen in the frock of the victim, the lungi on which she was laid by Gulab Chand (PW-2) and also the blood smeared soil by the police. The varying versions of Gulab Chand is also a factor which strikes at the trustworthiness of the prosecution case. 14. On a cumulative consideration of all above, I am thus of the view that the prosecution has not been able to prove the charge beyond all reasonable doubt, and that, the appellant is entitled to the benefit thereof. The impugned judgment and order is set aside. The appeal is allowed. The appellant stands discharged from his bail bonds. 15. While acknowledging the assistance rendered by Mr.Raunak Singhvi, learned amicus curiae, this Court directs payment of his professional fee of Rs. 5,000/- to be borne by the State Government.Appeal allowed. *******