Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 513 (RAJ)

Dhanna Ram v. State of Rajasthan

2013-03-01

AMITAVA ROY

body2013
JUDGMENT Hon'ble ROY, J.—This revision petition is filed by the petitioner, father of the prosecutrix, against the judgment and order dated 19.4.1997 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) in Sessions Case No.69/1996 (26/95), wherein the respondents No.2 and 3 though charged u/Ss. 366 & 376 IPC, had been acquitted at the end of the trial. 2. I have heard Mr. Sheetal Kumbhat, learned counsel for the petitioner, Mr. A.R. Nikub, learned P.P., Mr. A.K. Acharya, learned counsel for respondents No.2 and 3. 3. The FIR dated 6.10.1995 lodged by the petitioner with the Officer incharge, Police Station, Merta alleging that the respondents had enticed away his minor daughter Hapudi alias Santosh, aged about 14 years on 2.10.1995, was registered and on completion of the investigation, a charge-sheet was laid against the respondents No.2 and 3 for the offences u/Ss. 366 & 376 IPC. They denied the charge. In course of the trial, the prosecution examined several witnesses including the informant PW-3 Dhanna Ram, the prosecutrix PW-5 Hapudi and Dr. Satyadev Singh Mehta, PW-6, who had conducted the medical examination for the purpose of ascertaining as to whether any offence of rape had been committed on her. PW-2 Dr. Tulchha Ram Choudhary, who had examined her to medically ascertain her age, was also produced as a witness. The accused respondents, on completion of recording of evidence of the prosecution witnesses, were also examined under Section 313 Cr.P.C. The learned trial Court by the judgment and order impugned herein acquitted them of the charges. 4. Mr. Sheetal Kumbhat, learned counsel for the petitioner, has argued with reference to the FIR Ex.P.11 as well as the evidence of Dr. Tulchha Ram Choudhary (PW 2) that as would be apparent therefrom that at the relevant point of time, the prosecutrix was aged between 14 to 16 years, the finding recorded by the learned court below that it was 18 years and above, is perverse. Placing reliance on the FIR as well as the evidence of father of the prosecutrix, learned counsel has sought to justify the marginal delay in the matter of filing of FIR on 6.10.1995. Placing reliance on the FIR as well as the evidence of father of the prosecutrix, learned counsel has sought to justify the marginal delay in the matter of filing of FIR on 6.10.1995. According to him, as understandably the FIR has been lodged by the father of the prosecutrix in connection with his missing daughter only after exhausting all possible means to ascertain her whereabouts, the learned trial court had grossly erred in rejecting the case of the prosecution on the ground of delay. He also urged that a plain reading of the testimony of the prosecutrix PW5 Hapudi did prove the offence of abduction and rape against the respondents No.2 and 3 and, therefore, the conclusion of the learned trial court with regard to the inconsistencies in her evidence not only is borne out by the records but also renders their acquittal patently illegal requiring the interference by this Court in exercise of its revisional jurisdiction. In support of his contentions, learned counsel has also drawn the attention of this Court to the relevant medical reports on the count of age of the prosecutrix and also the injuries in her private parts demonstrating in unequivocal terms the commission of offence of rape on her immediately prior to her recovery on 7.10.1995. 5. Per contra, Mr. A.K. Acharya, learned counsel appearing on behalf of the respondent No.2 and 3, has argued that in exercise of the revisional jurisdiction of this Court, the scope of scrutiny and interference being extremely limited and as the order of acquittal is based on logical analysis of the evidence on record, the revision petition ought to be dismissed in limine. In support of his contention, he has placed reliance on a decision of the Apex Court in the case of Shyam and another vs. State of Maharashtra, AIR 1995 SC 2169 . According to them, it being apparent from the evidence of the prosecutrix PW-5 that she was a willing companion of respondents, No.2 and 3 during her absence from 2.10.1995 to 7.10.1995, the learned trial Court was perfectly justified in drawing the necessary interference against he charge of abduction and rape and, thus, no interference is called for. 6. The rival arguments have been duly considered. 6. The rival arguments have been duly considered. As the impugned judgment and order would reveal, the learned trial Court recorded the finding of acquittal against the respondents No.2 and 3 on three grounds viz., (i) Delay in filing of the F.I.R. (ii) Age of the prosecutrix. According to it, she was at the relevant point of time 18 years and above of age and; (iii) The testimony of the prosecutrix did not inspire confidence and had fallen short of standard of proof qua the charge of abduction and rape. 7. On a perusal of the FIR, Ex.P.11, which was lodged on 6.10.1995 in conjunction with the testimony of the father of the prosecutrix, PW 3, I am of the considered view that in the attendant facts and circumstances of the case, having regard to the bewildered state of mind of the informant and the usual disinclination to lodge the information with regard to such an incident with the police before exhausting all other alternative remedies, the prosecution case was not liable to be dismissed on the ground of delay. It is submitted at the Bar that the prosecutrix was recovered on 7.10.1995, the very date on which the respondents No.2 and 3 had been arrested. 8. The evidence of PW 2 Dr. Tulchha Ram Choudhary, who had examined the prosecutrix on 7.10.1995 to ascertain her age, disclosed that on the basis thereof, he had recorded a finding that the same was between 14 to 16 years, which, even if some flexibility was permissible, was at the most between 15 to 17 years. He, however, mentioned that her approximately age at that point of time was 16 years. In the course of the evidence, this witness referred to his report Ex.P.7. The learned trial Court, as the impugned judgment and order would disclose, however, was of the opinion that the prosecutrix at the relevant point of time was above 18 years of age acting upon the deposition of her father PW-3. In the course of the evidence, this witness referred to his report Ex.P.7. The learned trial Court, as the impugned judgment and order would disclose, however, was of the opinion that the prosecutrix at the relevant point of time was above 18 years of age acting upon the deposition of her father PW-3. This witness though in his examination-in-chief, did reiterate that age of her daughter (prosecutrix) was 14 years at the time of the incident, the learned trial Court on the basis of the sequence of the events pertaining to the birth of the other children of the witness and the time gap in between, concluded that the age of the prosecutrix on the basis thereof was 18 years or more at the relevant point of time. On a cumulative reading of the evidence of the PW-3 Dhanna Ram, PW-2 Dr. Tulchha Ram Choudhary and the medical report Ex.P.7, in my considered view, this conclusion of the learned trial Court vis-à-vis the age of the prosecutrix is clearly against the weight of the evidence against the record and, thus, cannot be sustained. 9. Logically in the absence of testimony of P.W.5, there is no other evidence in support of the charge of abduction and rape leveled against the respondents No.2 and 3. The prosecutrix, as her testimony on oath would reveal, had stated that on 2.10.95, while she had been to the nearby market, she was offered some sweets by the respondents No.2 and 3 and on consuming the same, she found herself in the state of trace, whereafter she accompanied them as directed and remained in their custody till 7.10.95, when she was recovered by the police. In the course of her stay with respondents No.2 and 3, the narrated that she was kept in the state of awe on the point of knife and threat and that the accused persons repeatedly committed rape on her. According to her, though in between they used to appear in the public and traveled in the public service vehicles, she was not left alone at the any point of time and used to be accompanied by one of the accused persons. According to her, though in between they used to appear in the public and traveled in the public service vehicles, she was not left alone at the any point of time and used to be accompanied by one of the accused persons. According to her, even while traveling in a bus, full of passengers, the accused persons used to keep her under duress on the point of knife so much so that she did not dare to raise any alarm or seek help. 10. The learned trial Court, however, took note of the fact that in view of the duration of the company of the prosecutrix with the respondents No.2 and 3 and their public errands, she, if intended, could have drawn the attention of those persons present all around to secure her release from the clutches of the respondents No.2 and 3. The learned trial Court also proceeded on the premise that the accused persons were of the same locality as of the prosecutrix and were known to each other from before. Coupled with the findings on account of delay and the age of the prosecutrix, the learned trial Court on a conjoint consideration of evidence on record, accorded the benefit of doubt to them and, thus, recorded their acquittal. 11. I have carefully perused the impugned judgment and order, more particularly the segment thereof dealing with the appreciation of evidence of the prosecutrix PW 5. I have closely read her evidence recorded at the trial as well. Though, as such there is nothing to disbelieve the prosecutrix that the respondents No.2 and 3 had consistently kept her in a state of apprehension of being physically injured on harmed by them, if she raised any alarm, having regard to the duration of her stay with them and the places of their visits frequented by the members of the public, her conspicuous and continuous silence is a factor, which cannot be lost sight of. However, in her evidence, the prosecutrix has admitted that in the train as well as in the bus on which she was made to accompany the respondents No.2 and 3 on several occasions, there were other persons all around but she did not dare to draw their attention, as the respondents No. 2 and 3 had threatened her to remain silent at the risk of her being harmed. Her evidence would disclose that she at that point of time was already married. It is a matter of record as well that the respondents No.2 and 3 were of the same locality and were known to her prior to the incident. 12. It is no longer res integra that any interference with an order of acquittal in a criminal trial is permissible in law only if the findings leading thereto, in the context of materials on record, can be branded as absurd or perverse or is afflicted with patent and incurable errors of law. The view adopted by the trial Court on the analysis of the evidence of PW-5 Hapudi and the conclusion based thereon, though may not be the only deduction possible on her testimony, on a wholesome reading thereof, the same cannot be repudiated to be perverse admitting of any interference while exercising the revisional power as in the instant case. Though another view, as suggested by the learned counsel for the petitioner, is possible on the evidence of the prosecutrix PW-5 to reiterate the conclusion reached the trial Court, cannot be discarded as perverse or illogical or absurd. 13. In the above view of the matter, having regard to the well settled principles regarding interference with an order of acquittal, this Court is constrained to reject the instant revision petition. 14. Consequently, the revision petition is dismissed.