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2013 DIGILAW 1675 (RAJ)

Satay Naraian v. State of Rajasthan

2013-09-20

AMITAVA ROY

body2013
JUDGMENT 1. - Heard Mr.Deepak Soni, learned Amicus Curiae for the appellant and Mr. Pradeep Shrimal, learned Public Prosecutor for the State of Rajasthan. 2. The present appeal has been preferred seeking interference with the judgment and order dated 22.12.1986 passed by learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 1/1985 convicting the appellant under sections 376, 341 & 392 IPC. For the first offence, he was thereby sentenced to suffer 4 years' rigorous imprisonment and pay fine of Rs. 200/-, in default to undergo 1 month's rigorous imprisonment and for the second, to undergo 1 month's rigorous imprisonment and for the third offence, to undergo 4 years' rigorous imprisonment and pay fine of Rs. 100/-, in default to undergo further 1 month's rigorous imprisonment. All these sentences were ordered to run concurrently. 3. The prosecution case is traceable to the first information report lodged on 22.08.1984 at about 7.00 p.m. by one Radhey Shyam with the Police Station, Chaksu alleging that on 21.08.1984 at about 5.30 p.m. when his wife Smt.Sushila had gone to ease herself in a nearby Jangle, the appellant grabbed her took away the valuable ornaments worn by her and also outraged her modesty by removing her Sari. On this report, the police registered a case under sections 379, 341 & 392 IPC. In course of the investigation, the victim alleged that she had been raped by the appellant and thus, the investigating agency added section 376 IPC also to the tally of the offences. Eventually charge-sheet was laid against him. The appellant denied the allegations, whereafter the charge was framed against him under sections 376, 341 & 392 IPC. In the trial, the prosecution examined several witnesses including the prosecutirx, her husband, the informant and, amongst others, Rukmani, who was projected by the prosecution as an eye-witness. Neither any medical witness was examined and nor the report of any chemical analysis of the wearing apparel of the victim and her vaginal swab was proved. The appellant, in his statement under section 313 Cr.P.C., denied the charge. He was, by the impugned judgment and order, convicted and sentenced as above. 4. Mr. Soni has argued that the prosecution has miserably failed to prove the charge against the appellant and thus, the impugned judgment and order ought to be set aside. The appellant, in his statement under section 313 Cr.P.C., denied the charge. He was, by the impugned judgment and order, convicted and sentenced as above. 4. Mr. Soni has argued that the prosecution has miserably failed to prove the charge against the appellant and thus, the impugned judgment and order ought to be set aside. He urged that not only the testimony of the prosecutrix and the other witnesses are wholly untrustworthy vis-a-vis the allegation of rape, the alleged belated recovery of the valuable ornaments of the victim from the house of the appellant also does not prove his culpability. 5. Mr. Shrimal, on the other hand, has argued that as the informant had, in his written report, categorically mentioned that the appellant had outraged the modesty of his wife by removing her Sari and the prosecutrix in her evidence in clear terms accused him of having committed rape on her, the conviction is well founded. Further the recovery of gold ornaments of the victim from the house of the appellant did clearly prove his involvement in the offence and thus, no interference with the impugned judgment and order is called for. 6. PW-1 Rukmani, who according to the prosecution had claimed to have seen the appellant forcing himself on the victim, at the trial turned hostile and did not support the case of the prosecution. The prosecutrix PW-2 stated that at about 5.00 p.m. on the date of occurrence, as she was proceeding towards a nearby Nalla to ease herself, the appellant grabbed her, fell her on the ground and removed her ornaments as well as the Sari, that she was wearing. The witness stated that at this, she cried for help as she saw one lady passing by. The witness stated that thereafter the appellant committed rape on her. According to her, it took about 5-7 minutes and after this when she met Bajrang Lal Saini and Kailash, on being enquired, she told that the appellant had taken away her gold ornaments. When they asked as to whether he did anything further to her, she stated that he had done all that could have been done. In cross-examination, she, amongst others, stated that she did not state about the commission of rape on her by the appellant to anybody. When she ultimately disclosed it to her husband, she was assaulted by him. When they asked as to whether he did anything further to her, she stated that he had done all that could have been done. In cross-examination, she, amongst others, stated that she did not state about the commission of rape on her by the appellant to anybody. When she ultimately disclosed it to her husband, she was assaulted by him. PW-3 Bajrang Lal stated that at the time of the occurrence, while he was passing by, on hearing the cries, he went near the spot and met the prosecutrix, who on enquired, disclosed to him that the appellant had fled away taking her ornaments. When she was asked as to whether anything further was done to her, she stated that whatever was to happen had happened. The evidence of PW-4 Kailash Narayan is similar to that of Bajrang Lal. The victim's husband, Radhey Shyam, PW-8 stated that Kailash and Bajrang Lal did tell him that the appellant on hearing the cries of his wife had gone to the place of occurrence and saw the appellant fleeing therefrom. They also informed him that he had outraged her modesty. The witness stated that he did verify about the factum of rape from his wife (victim) that also did so after FIR was lodged. According to PW-9 Shyorati Singh, the Investigation Officer, the appellant had produced from his house some of the ornaments of the prosecutrix which he had seized vide Exhibit-P6. 7. Upon hearing learned counsel for the parties and on a consideration of the evidence on record, I am of the view that the charge of rape against the prosecutrix has not been proved. Noticeably, the prosecutrix consistently had been emphasising on the accusation that he had removed the ornaments worn by her and the allegation of outraging her modesty or committing rape was mentioned by her only in course of the investigation. The first information report, that was lodged on the next date, also did not allege forcible sexual intercourse by the appellant on her. Though the learned Public Prosecutor has sought to urge that the allegation of outraging her modesty has been mentioned in the FIR, I am of the view, having regard to the surrounding facts and circumstances and in absence of any medical evidence, the charge of rape against the appellant has not been made out. Though the learned Public Prosecutor has sought to urge that the allegation of outraging her modesty has been mentioned in the FIR, I am of the view, having regard to the surrounding facts and circumstances and in absence of any medical evidence, the charge of rape against the appellant has not been made out. The evidence centering around this allegation is not adequate enough to prove the same beyond all reasonable doubt. The recovery of some of the ornaments of the victim from the house of the appellant, however, reinforces the victim's statement of that he on the date of occurrence taken away the same by removing those from her body. That these had been produced by the appellant from his house and had been seized is a matter of record. 8. In this view of the matter, in the opinion of this Court, the appellant has to be held guilty of the offence to this effect. The evidence of the prosecutrix taken on its face value does not demonstrate that any force of any kind as contemplated under section 392 IPC had been used by the appellant in removing the ornaments from her body. The offence committed thus, at the best be construed to be under section 392 IPC. The appellant is, thus, in the facts and circumstances of the case, convicted of the offence under this provision of the IPC. It has been submitted at the Bar on the basis of the relevant records that during the investigation and thereafter the appellant had been in jail for about 6 months. At this distant point of time, I am of the opinion that it would meet the ends of justice, if the sentence for the offence under section 392 IPC, for which the appellant is convicted hereby, is limited to the period for which he had already in custody and he be further required to pay fine of Rs. 100/-, in default to undergo rigorous imprisonment of another fortnight. 9. Ordered accordingly. 10. The impugned judgment and order is interfered with to the extent indicated hereinabove. The appeal is partly allowed. The impugned judgment and order is modified accordingly. The office would remit the records. The learned trial court would ensure the fine imposed and realised from the appellant. 11. Before parting, I wish to record my appreciation for the assistance rendered by Mr.Deepak Soni as Amicus Curiae. The appeal is partly allowed. The impugned judgment and order is modified accordingly. The office would remit the records. The learned trial court would ensure the fine imposed and realised from the appellant. 11. Before parting, I wish to record my appreciation for the assistance rendered by Mr.Deepak Soni as Amicus Curiae. His professional fee is assessed as Rs. 5,000/- to be paid by the Rajasthan State Legal Service Authority, Jaipur.Appeal partly allowed. *******