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2013 DIGILAW 1947 (RAJ)

Kalu v. State of Rajasthan

2013-11-08

AMITAVA ROY

body2013
JUDGMENT 1. - In challenge is the judgment and order dated 24.08.1987 passed by the learned Sessions Judge, Tonk in Sessions Case No. 8/86 convicting appellants under Sections 376 & 451 IPC and sentencing them to suffer rigorous imprisonment and to pay fine and, in default to undergo further rigorous imprisonment. 2. We have heard Mr. V.P. Bishnoi with Mr. V.R. Bajwa, learned counsel for the appellants, Ms. Rekha Madnani, learned Public Prosecutor and Mr. Deepak Soni, learned counsel for the prosecution. 3. On 03.05.1985 a written report was lodged with the officer incharge, Police Station Duni by Smt. Rupa, the prosecutrix, alleging that in the night of 22/23rd April, 1985 at about 11-11.30 p.m., while she was sleeping with her child, the appellants in a body molested her and forcibly raped her by turn. She stated that they gagged her and also threatened her with a dagger. She alleged that because of the torture, she remained in an unconscious state for the rest of the night and it was in the morning that when one Gyarsi Malan came and attended on her, she came to her senses. She stated further that in the night of the occurrence, the other family members were not present in the house and though she being alone (her husband being away to Delhi in connection with his engagements) tried to inform the police, but could not muster courage to do so. She alleged that when her in-laws returned, they also did not permit her to lodge the FIR. Though she sought the company of one Bhawani Ram and Jagdish to accompany her to the police station, none did cooperate. It was finally on 03.05.1985 that she could lay the information with the police. 4. On receipt of this written report, the police registered a case and on completion of the investigation submitted a chargesheet against the appellants. They were eventually charged under Sections 376 & 451 IPC, they having denied the allegations levelled against them. At the trial, the prosecution examined several witnesses including the prosecutrix (PW-4), her husband Mishri Lal (PW-5), Gyarsi (PW-1) and Bhawani Ram (PW-2) as well as the doctor, who had medically examined the prosecutrix. They were eventually charged under Sections 376 & 451 IPC, they having denied the allegations levelled against them. At the trial, the prosecution examined several witnesses including the prosecutrix (PW-4), her husband Mishri Lal (PW-5), Gyarsi (PW-1) and Bhawani Ram (PW-2) as well as the doctor, who had medically examined the prosecutrix. At the conclusion of the recording of the evidence of the prosecution witnesses, the statements of the accused-appellants under Section 313 Cr.P.C. were recorded, in which they reiterated their denial of the charge and alleged that they had been falsely implicated on political considerations as they happened to be the office bearers/employees of the local Panchayat. They also examined two witnesses in defence. The trial court, however, convicted and sentenced them as referred to herein above. 5. Mr. Bishnoi has argued that the delay in filing of the FIR has not been satisfactorily explained and on this ground alone, the prosecution case ought to be rejected. Though the evidence reveal that the husband of the prosecutrix, who was away from Rajmahal, had returned on 29.04.1985, the delay in lodging of the FIR for further 5/6 days has remained wholly unexplained. While contending that the prosecutrix had provided a shifting version with regard to the place of the alleged occurrence and that the prosecution story is inherently improbable, Mr. Bishnoi has argued that the appellants are entitled to be acquitted of the charge. According to the learned counsel, not only in view of a marriage being solemnized in the immediate vicinity of the house of the prosecutrix and presence of the guests in attendance did render the prosecution case wholly untrustworthy, the alleged resistance of the in-laws of the prosecutrix in lodging the FIR in time is irreconcilably unusual casting a serious doubt on the veracity of the testimony of the prosecutrix. According to Mr. Bishnoi having regard to the manner in which the alleged offence had been committed there ought to have been telltale signs of injuries on the body of the prosecutrix. As the medical evidence is to the contrary, the learned trial court ought to have held against the complicity of the appellants in the alleged crime. According to Mr. Bishnoi having regard to the manner in which the alleged offence had been committed there ought to have been telltale signs of injuries on the body of the prosecutrix. As the medical evidence is to the contrary, the learned trial court ought to have held against the complicity of the appellants in the alleged crime. Referring to the evidence of the defence witnesses, the learned counsel has urged that as would be demonstrated thereby, no incident of the kind as alleged by the prosecutrix had been reported immediately thereafter and thus, the appellants were framed on extraneous considerations as an afterthought. 6. In reply, learned Public Prosecutor and learned counsel for the complainant have argued that not only the delay has been explained, the prosecutrix being alone and confronted with heavy odds besides being under persistent pressure of the appellants who at all relevant times were power the elements, her version being clear, cogent and convincing, the conviction of the appellants is valid and no interference therewith is warranted. According to them, the victim was not only gagged but also ravished at the point of a dagger, for which she logically could not raise any alarm. Further the fact that her in-laws were not inclined to lodge the FIR with regard to the incident clearly demonstrates the state of awe and terror in which they found themselves in view of the undue influence and threat extended by the appellants. Referring to the medical report (Exhibit-P7) and the report of the forensic science laboratory, the learned counsel for the prosecution has urged that it would be apparent therefrom that the charge of rape had been proved and thus, the impugned judgment and order ought to be left un-interfered. 7. Before analyzing the arguments advanced, it would be indispensable to notice the evidence on record in short. 8. PW-1 Gyarshi and PW-2 Bhawani Ram did not support the prosecution case and were declared to be hostile. PW-4 the prosecutrix, in substance, state that in the night of the occurrence while she was sleeping with her child, the appellants in a body by turn committed forcible sexual intercourse with her and in the process, they gagged her and also kept her under threat at the point of a dagger. She stated that it was Gyarsi, who for the first time after the fateful night met her and attended on her. She stated that it was Gyarsi, who for the first time after the fateful night met her and attended on her. She stated that though on her request at the first instance, Bhawani Ram agreed to accompany her to the police station to lodge the FIR, he abandoned her midway and returned later and offered Rs. 500/- to her with a request not to inform the police. She testified that she eventually got a letter written by one Madna Teli to her husband requesting him to return whereupon he did so. She admitted that in the night of occurrence, there was a marriage in the locality. She stated further that her in-laws were not in the house in the night of the occurrence and had returned three days thereafter. 9. PW-5 Mishri Lal, the husband of the prosecutrix is a reported witness and iterated the above on being conveyed to him by the victim. 10. PW-9 Dr. Vimal Kumar Jain deposed to have medically examined the prosecutrix on 03.05.1985 and proved the medical report Exhibit-P7. A perusal of this report would disclose that in course of the medical examination, no external injury was found on the body of the prosecutrix and, more particularly, on her private parts. The medical witness could not in certain terms opine that forcible sexual intercourse had been committed with her. The forensic science laboratory report, Exhibit-P11, however, disclosed that the wearing apparel (Ghaghara) of the prosecutrix seized in course of the investigation did show the existence of semen. As adverted to herein above, the appellants in their statements under Section 313 Cr.P.C. clearly asserted that they had been falsely implicated on political considerations in view of the office held by them. 11. Whereas, DW-1 Devalal, a neighbor, stated that in the night of the occurrence, his sister was getting married and that all the family members of the Mishri Lal, the husband of the prosecutrix were present in their house, he deposed that he had not heard about the incident as alleged or the involvement of the appellants therein. 12. DW-2 Kishan Lal, the brother of Mishri Lal, the husband of the prosecutrix, stated that in the night of the alleged occurrence, he and the other family members were in their house and categorically testified that no such incident involving the appellants had occurred. 12. DW-2 Kishan Lal, the brother of Mishri Lal, the husband of the prosecutrix, stated that in the night of the alleged occurrence, he and the other family members were in their house and categorically testified that no such incident involving the appellants had occurred. He affirmed that in the night, there was a marriage in the neighborhood. 13. The incident as narrated by the prosecutrix, if true in the opinion of this Court, though the FIR had been delayed left would have some signs of the brutal force said to have been applied on her by three adult male persons. As indicated herein above, no injury whatsoever was detected on her body. The doctor, who had medically examined her, even could not opine tentatively that forcible sexual intercourse had been committed on her in the manner alleged. She being a married lady, presence of semen in her wearing apparels seized by the police ipso facto did not establish for culpability of the appellants. Not only the imputation that the in-laws of the prosecutrix had prevented her from lodging the FIR immediately after the incident appears to be unacceptable being wholly against the normal human conduct, in absence of any explanation to lay the information of the police immediately after her husband had returned on 29.04.1985 also renders the prosecution case doubtful. The stand taken by the appellants in their statements under Section 313 Cr.P.C. and the evidence of the defence witnesses also shake the prosecution case. The fact that Gyarshi, PW-1, who according to the prosecutrix was the first who saw her in her battered and maimed state after her alleged ravishment in the night turned hostile and did not support her. Bhawani Ram, who said to have accompanied her to some distance to lodge the FIR also did not support her. The fact that there was a marriage in the locality as well, reinforces the defence plea of false implication of the appellants. 14. On an overall consideration of these aspects, I am of the view that the prosecution has failed to prove the charges against the appellants beyond all reasonable doubt. The attendant facts and circumstances and the evidence of the prosecution taken in its entirety does not lead to a far flung conclusion to hold the appellants guilty of the charges solely on the basis of the testimony of the prosecutrix. 15. The attendant facts and circumstances and the evidence of the prosecution taken in its entirety does not lead to a far flung conclusion to hold the appellants guilty of the charges solely on the basis of the testimony of the prosecutrix. 15. In the result, the appeal is allowed. The impugned judgment and order is interfered with and the same is set aside. The appellants are acquitted and exonerated of the charges. They are thus, set at liberty. The bail bonds stand discharged. The office would remit the records.Appeal allowed. *******