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2013 DIGILAW 1951 (RAJ)

Janak Singh v. The State of Rajasthan

2013-11-08

AMITAVA ROY

body2013
JUDGMENT 1. - Being aggrieved by his conviction under Sections 376, 354 & 323 IPC and being sentenced therefor with imprisonment and fine vide the judgment and order dated 17.9.1992 passed by the learned Special Judge -cum- Additional Sessions Judge, Dholpur in Sessions Case No.14/1992, the appellant seeks redress. 2. We have heard Mr.S.K.Gupta & Mr.Rahul Sharma, learned for the appellant and Ms.Rekha Madnani, learned Public Prosecutor, Rajasthan. 3. The prosecution case has its genesis in a written information laid by the prosecutrix Ramshree with the District Collector, Dholpur on 6.2.1991 alleging that in the midnight of 4/5.2.1991, while she was sleeping with her children, the appellant knocked the door calling her to open the same. As she did not oblige, he kicked open the door, chased her children out of the room and committed sexual intercourse with her forcibly. According to the prosecutrix, as the appellant stuffed a cloth in her mouth, she could not raise alarm. While departing, the appellant threatened her of dire consequences, if she would report about the occurrence. She alleged that when she went to the local police station to make a report, it was not accepted and acted upon. 4. This report was eventually sent to the concerned police station and investigation was initiated on the basis thereof, charge-sheet was laid against the appellant under the aforementioned Sections of the IPC. When confronted with the allegations, he denied the same, and therefore, was charged thereunder. At the trial, the prosecution examined the prosecutrix, her husband and the doctor who had medically examined her (prosecutrix) and other witnesses including the investigating officer. The appellant, in course of his statement under Section 313 Cr.P.C, denied the allegations and asserted that he had been falsely implicated as he was demanding repayment of the loan amount advanced by him to Mevaram, the husband of the prosecutrix. He also alleged that the prosecutrix was an unchaste lady. The appellant also examined two witnesses in defence. The learned trial court however, convicted and sentenced him, as adverted to hereinabove. 5. Mr.Gupta has insistently argued that it being apparent on the face of the evidence adduced by the prosecution that the prosecutrix was apparently unreliable, and that, the appellant had been framed with oblique motives, the learned trial court ought to have acquitted him (appellant). The learned trial court however, convicted and sentenced him, as adverted to hereinabove. 5. Mr.Gupta has insistently argued that it being apparent on the face of the evidence adduced by the prosecution that the prosecutrix was apparently unreliable, and that, the appellant had been framed with oblique motives, the learned trial court ought to have acquitted him (appellant). The learned counsel has urged that not only the first information report is delayed without any persuasive explanation, the prosecution witnesses having clearly stated that the husband of the prosecutrix had taken loan from the appellant, which he had failed to return, inspite of repeated insistences by him, and that, she (prosecutrix) had dubious ways, the impugned conviction, if allowed to stand, would result in travesty of justice. Apart from the age difference between the appellant and the prosecutrix, the former being younger to the latter by about 10 years, which per se renders the allegation prima facie unacceptable, even the site plan prepared by the investigating officer does not disclose any telltale sign of appellant's forcible entry into the room of the prosecutrix and commission of the offence, as alleged, he maintained. 6. Per contra, Ms.Madnani has submitted that as the incident had occurred in the intervening night of 4/5.2.1991 and the written report was lodged on 6.2.1991 with the District Collector, Dholpur, no action meanwhile having been taken by the local police, though informed, the plea of delay is wholly misplaced. As the husband of the prosecutrix was not available as well on the date of the occurrence, she being a rustic lady, cannot be accused of delay in the circumstances. According to the learned Public Prosecutor, the testimony of the prosecutrix PW-2 is convincing and believable and the learned trial court therefore, rightly convicted the appellant. According to her, DW-1 to DW-4 were not residents of the locality, and thus, their evidence is of no significance. DW-5, being father of the appellant, his testimony is partisan. The learned Public Prosecutor argued that the evidence of the prosecutrix, and that of her husband and the doctor who had medically examined her, did fully prove the charge, and thus, no interference with the impugned judgment and order is called for. 7. Before embarking upon the exercise of undertaking a comparative assessment of the rival arguments, it would be appropriate to survey summarily the evidence on record. 7. Before embarking upon the exercise of undertaking a comparative assessment of the rival arguments, it would be appropriate to survey summarily the evidence on record. The prosecutrix PW-2, in her statement on oath, more or less, reiterated her version in the written report. She however, stated that on the next date, when she went out and narrated the incident to a shopkeeper nearby, he did not pay any heed to her. According to this witness, she also went to the police station to lodge a report, which was not received and she was turned out of the premises. It was thereafter that she submitted the written report before the District Collector, Dholpur, on which the investigation followed. In cross-examination, she stated that when the appellant kicked open the door, she raised alarm in high pitch, but none in the locality did come. She deposed further that both of them had jostled for some time, but repeated that she could not scream in course of the act as her mouth was gagged. She however, admitted that the appellant used to frequent their house. She admitted that 2/3 days after the incident, her husband and here son had come home. She denied that she was unchaste, and that, many used to visit her at night. She admitted that her husband had taken a loan of Rs. 1,800/- from the father of the appellant. She admitted as well that she did not suffer any injury, except one behind her left ear. 8. PW-3 Dr.(Smt.) Meera Modi, who had examined the prosecutrix, testified that there was no fresh injury on her body, including her private parts. The witness opined that the prosecutrix was habituated to sexual intercourse, and that, presence of dead semen in her vaginal swab did suggest that there had cohabitation within last 48-72 hours. This witness proved the report to the above effect as Ex.P.4. 9. PW-4 Guddi, daughter of the prosecutrix, who was, at the relevant time aged about 11 years, though had supported her mother about the forcible entry of the appellant in their room by kicking open the door thereof, did not state anything about the actual incident. She however, stated that when the appellant entered the room, her mother had cried out loudly. 10. PW-5 Mevaram, the husband of the prosecutrix is a reported witness. She however, stated that when the appellant entered the room, her mother had cried out loudly. 10. PW-5 Mevaram, the husband of the prosecutrix is a reported witness. In the cross-examination, he stated that he had been told by the prosecutrix that even on an alarm being raised, nobody did come. He denied the suggestion that the appellant had been falsely implicated as he had been demanding repayment of the loan of Rs. 1800/- taken by him. 11. PW-6 Ram Naresh is the son of the prosecutrix and is also a reported witness. In cross-examination, he stated that his mother, at the relevant time, was about 35-40 years and the appellant 25 years. He reiterated that the appellant used to visit their house frequently. 12. PW-8 Ram Mukat did not support the prosecution case, and instead, in his cross-examination affirmed that there was a strained relationship between the appellant and the husband of the prosecutrix with regard to some loan amount. He stated as well that many persons used to visit the prosecutrix, and she was of easy virtue. 13. DW-1 Ramjilal introduced to be a relation of the prosecutrix certified the appellant to be a good person and denied the allegation levelled against him. He also accused the prosecutrix to be unchaste, for which, even her relatives did not support her on the allegation levelled against the appellant, as it was false. In the same lines, is the evidence of DW-2 Kirodi, DW-3 Moola Singh, DW-4 Summera and DW-5 Parsadi. The father of the appellant, claiming that his son was of chaste character, accused the prosecutrix of questionable conduct. 14. Upon hearing the learned counsel for the parties and on a consideration of the evidence on record, it is considered unsafe to sustain the conviction of the appellant solely on the basis of the testimony of the prosecutrix. Not only the evidence on record would demonstrate that the place of the alleged occurrence is located in a congested neighbourhood with nearby houses full of inhabitants, the subsistence of a strained relationship between the husband of the prosecutrix and the appellant for a loan account and her (prosecution) disagreeable conduct of living, it cannot be concluded, without any element of doubt, that the prosecution has been able to prove the charges. The fact that she was not heeded by the nearby shopkeeper as well as the local police at the first instance, and that, none of her relatives had supported her, reinforces the defence plea, as taken. The medical evidence also falls short as a corroborative piece of evidence vis-a-vis the charges. The difference in age between the appellant and the prosecutrix also, in the above perspectives, is also a factor weighing against the veracity of the prosecution case. 15. On a cumulative consideration of all above, this Court is thus of the comprehension that the prosecution has not been able to prove the charges against the appellant beyond all reasonable doubt. The impugned judgment and order is set aside. The appeal is allowed. The appellant stands discharged from his bail bonds. Let the records be remitted to the court below. *******