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2013 DIGILAW 1332 (RAJ)

Bhair Singh v. State of Rajasthan

2013-07-23

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the appellant against the judgment dated 1.10.2009 passed by the learned Additional Sessions Judge (Fast Track), Balotra, District Barmer in Sessions Case No. 33/2009, whereby the appellant was convicted and sentenced as below: Under Section 450 I.P.C. years' R.I. and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo three months' S.I. Under Section 376 I.P.C. 7 month's R.I. and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo three months' S.I. 2. Succinctly stated the facts of the case are that the prosecutrix Smt. 'P' lodged a typed report at the Police Station Sadar Barmer on 17.2.2009. As per the allegations levelled in the F.I.R., the prosecutrix was lying in her house at 10.2.2009 at that time, the accused Bhair Singh entered into her house with evil intention and forcibly took her inside the hut. Thereafter, she was forcibly raped by the accused. She tried to resist the attempts of Bhair Singh but Bhair Singh did not desist from his ill intentions. She was thrown down on a cot her clothes were lifted and thereafter, Bhair Singh committed forcible sexual intercourse upon her. She shouted on which her Devar came there and on seeing him coming, Bhair Singh ran away. In the evening her husband came back home on which she made a complaint of the incident to husband. Her husband went to the Sarpanch and the other respectable persons of the village and informed them about the incident but was told that Bhair Singh was a goon and that it was not possible to take action against him. Be that as it may. On the basis of the report filed by the prosecutrix an F.I.R. No. 38/2009 was registered at the Police Station Sadar Barmer on 7.2.2009 and investigation commenced for the offences under Sections 450 and 376 of the I.P.C. On lire conclusion of the investigation, the Investigation Officer filed a charge-sheet against tire appellant for the offences under Sections 450 and 376 of the I.P.C. in lire Court of the learned Additional Chief Judicial Magistrate, Barmer. The case being triable by a Court of the Sessions was committed and ultimately transferred to the Court of the Additional Sessions Judge (Fast Track) Barmer, where charges for the offences under Sections 450 and 376 of the I.P.C., were framed against the appellant. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses in support of its case and exhibited 12 documents. The accused in his statement under Section 313 of the Cr.P.C. denied the allegations of the prosecution and examined one witness in support of his defence. The learned trial Judge at the conclusion of the trial proceeded lo convict and sentence the appellant as above. Hence, this appeal. 3. Shri Dhirendra Singh learned counsel for the appellant vehemently contended that the appellant had been falsely implicated in this case. He submitted that the F.I.R. was filed after an undue delay of 7 days. He further submitted that the justification which has been claimed for the delay in filing of the F.I.R. is far from convincing. He urged that there are serious contradictions in the testimony of the prosecution witnesses regarding the reason for the delay in filing of the F.I.R. He further urged that there was a property dispute going on between the complainant party and the accused due to which the false case of rape had been foisted on the appellant. He sub milled that the father of the accused had advanced a loan to the husband of the piosecutrix which he did not intend to repay and that is why the false case was foisted on the accused. He thus prayed that the judgment of conviction deserved to be set aside. 4. Per contra, the learned Public Prosecutor opposed the submissions advanced by the learned counsel for the appellant. He argued that the prosecutrix is a woman of rural background. She was subjected to rape on 10.2.2009 and made a complaint about the incident to her husband on the very same day. The husband informed the respectable persons of the village, who expressed their helplessness in taking any action against the accused because of his terror and clout in the village. Thus, the prosecutrix and her husband were prevented from taking immediate action against the accused. The husband informed the respectable persons of the village, who expressed their helplessness in taking any action against the accused because of his terror and clout in the village. Thus, the prosecutrix and her husband were prevented from taking immediate action against the accused. The learned Public Prosecutor submitted that the prosecutrix was a young woman belonging to a respectable family and there was no reason for her to have put her own reputation at stake by filing a false case of rape against the accused. Learned Public Prosecutor further submitted that the defence taken by. the accused that the complainant's husband had taken a loan from the accused and that the case was filed in order to avoid the repayment of the loan is absolutely imaginary. 5. Heard and considered the arguments advanced at he bar and perused the judgment impugned and the record. 6. The prosecution has relied upon basically the testimony of the prosecutrix Smt. 'P' PW-2, Rekha Ram PW-4, Heera Ram PW-5, Budha Ram PW-7 and Vishvabandhu PW-11 for proving its case. PW-1 Dr. Vandana Jain and PW-2 Dr. A.K. Soni were the Medical Officers, who conducted the medical examination of the prosecutrix. Their evidence of the prosecutrix, who is a married lady was conducted after nearly 8 days of the occurrence and thus, there was no possibility of any marks of the alleged act of rape being found on the person of the prosecutrix after this long delay. prosecutrix PW-3 in her testimony clearly alleged that the accused came inside her Dhani at about 4 O'Clock in the evening. At that time, her husband gone out with the tractor. She was all alone in the Dhani. The accused forcibly caught hold of her and took her inside the hut. She was thrown on the cot and was forcibly subjected to rape. In the cross-examination, a suggestion was given on behalf of the accused that the mother-in-law of the prosecutrix had expired a month before the incident. It was suggested that on the occasion of her death, the complainant had held a Mrityubhoj and for that purpose, loan had been lakcn from Bhair Singh's father Phool Singh. Another suggestion was given to the prosecutrix which she agreed that for the purpose of holding the Mrityubhoj, they had sold their land lo some person of Kumhar community. It was suggested that on the occasion of her death, the complainant had held a Mrityubhoj and for that purpose, loan had been lakcn from Bhair Singh's father Phool Singh. Another suggestion was given to the prosecutrix which she agreed that for the purpose of holding the Mrityubhoj, they had sold their land lo some person of Kumhar community. A suggestion was ultimately given to the prosecutrix that they had taken loan from the accused and in order to avoid repayment, false case of rape was foisted upon the accused. PW-4 Rekha Ram the husband of the prosecutrix had gone out of lire village for driving the tractor, when he came back on the day subsequent to lire incident, his wife informed him about the incident of rape. Thereafter, he approached the Sarpanch etc. of the village but when no remedy was forthcoming, the F.I.R. Ex.P-5 was filed by this witness. A bald suggestion has been given to the witness that the F.I.R. was filed after 7 days of the occurrence. The witness has given an explanation that the time was spent in the talks held with the villagers. This explanation in the opinion of this Court is satisfactory. To this witness, a suggestion has been given by the accused that there was some exchange of money between the witness and Bhair Singh. It has also been suggested that there were some talks between the accused and Bhair Singh regarding the sale of his land. Significantly enough, there is no suggestion to this witness that he had taken any loan from Bhair Singh's father on the occasion of the Mrityubhoj of his mother. Heera Ram PW-5 was the Devar of the prosecutrix. He has alleged that he heard the shouts of his sister-in-law coming from the kitchen. The ran there and saw that Bhair Singh was running away after committing rape with his sister-in-law. Her sister-in-law told that Bhair Singh had committed rape upon her. Thereafter, Rekha Ram came on the next day, where after the villagers were informed about the incident but they refused to help. Then the prosecutrix and Rekha Ram filed the report to the Police Station. No significant suggestion has been given to the witness in his cross-examination. Her sister-in-law told that Bhair Singh had committed rape upon her. Thereafter, Rekha Ram came on the next day, where after the villagers were informed about the incident but they refused to help. Then the prosecutrix and Rekha Ram filed the report to the Police Station. No significant suggestion has been given to the witness in his cross-examination. Upon appreciation of the custody of these three important prosecution witnesses, it is apparent that no significant suggestion has been given to any of these witnesses regarding any motive for them to have falsely implicated the accused. Phool Singh has been examined as defence witness No. 1. He has alleged that Rekha Ram came to his house for taking a loan of Rs. 1,50,000/- because he has lo organise the Mrityubhoj of his mother. He alleged that they gave the amount of Rs. 1,50,000/- to Rekha Ram. Rekha Ram promised that if he would unable to repay the loan, then he would transfer his land to the witness. But thereafter, Rekha Ram executed the registry in favour of some Prajapats and filed the false case against his son. He has proved the registry Ex.D-1 executed in favour of The Prajapats. Significantly enough, when the suggestion given to Smt. 'P' is seen, it would reveal that Smt. 'P' has been given a suggestion that a loan of Rs. 80,000/- was taken from Phool Singh. On the other hand, Phool Singh has alleged that he gave a loan of Rs. 1,50,000/- to Rekha Ram. This grave contradiction in the stand taken by the accused clearly shows that the defence, which has been raised in support of the plea of false implication is absolutely contradictory. The specific suggestion which has been given to the prosecutrix is that her mother-in-law had expired a month prior to the incident and for the purpose her Mrityubhoj, the land has been sold to the Kumhars. DW-1 Bhair Singh was examined on 24.9.2009 and he has alleged that the accused took a loan of Rs. 1,50,000/- from him 10 months before his deposition. The date thus would come to December 2008. The incident is said to have taken place on 10.2.2009. If the date death of first informant's mother is taken to be somewhere in January 2009, then it would become apparent that the defence theory is totally false. 1,50,000/- from him 10 months before his deposition. The date thus would come to December 2008. The incident is said to have taken place on 10.2.2009. If the date death of first informant's mother is taken to be somewhere in January 2009, then it would become apparent that the defence theory is totally false. The sale document Ex.D-1, which has been exhibited by the accused was registered on 29.12.2008. Thus, the plea taken by the defence that Rekha Ram took a loan from Phool Singh and promised to give his land if the loan could not be repaid is apparently false. The first informant had sold his land to the persons of the Prajapat community on 29.12.2008 and the specific deposition of the prosecutrix is that the land was sold for meeting the expenses of Mriyubhoj of her mother-in-law. When the expenses of the Mrityubhoj had already been procured by selling the land, there was no occasion for Rekha Ram to have procured any loan from Phool Singh. The absence of any marks of violence upon the medical examination of the prosecutrix is of no significance whatsoever for the reason that the medical examination of the prosecutrix was conducted after nearly 8 days of the occurrence and also for the reason that the prosecutrix is a major married lady having two children. 7. In view of the aforesaid discussion this Court is of the opinion that the prosecution has proved cogent convincing and reliable evidence that the accused subjected the prosecutrix to forcible rape. There is no material available on the record to hold that the accused has been falsely implicated in this case. 8. As a result of the aforesaid discussion, this Court has no hesitation in holding that the judgment of the trial Court whereby the accused was convicted and sentenced for the offence under Sections 450 and 376 I.P.C. is based on appropriate appreciation of evidence.As a result of the aforesaid discussion, there is no force in the appeal and the same is hereby rejected.Appeal Appeared. *******