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2014 DIGILAW 153 (RAJ)

Moru alias Morpal v. State of Rajasthan

2014-01-10

AMITAVA ROY

body2014
JUDGMENT 1. - Being aggrieved by the judgment and order dated 19.3.1987 passed by the learned Sessions Judge, Tonk in sessions case No.14/85 convicting him under Section 341/376 IPC and sentencing him therefor with rigorous imprisonment and fine, the appellant seeks redress in the present appeal. 2. I have heard Mr.Govind Rawat, learned amicus curiae for the appellant and Ms.Rekha Madnani, learned Public Prosecutor for the State. 3. The prosecution case traces back to a written report lodged on 19.1.1985 by Ramswaroop, the husband of the victim Jeewani with the officer-in-charge, Baroni Police Station alleging that on the previous day, at about 4:00 p.m., while his wife, named hereinabove, had gone to the nearby jungle to collect timber and was returning therewith, the appellant intercepted her, dragged her to a nearby nala and committed rape on her forcibly. The report disclosed that the appellant also assaulted her all over the body, and as she raised alarm, Unkar and Uda, who were herding the cows nearby, rushed to the place of occurrence and found the appellant committing the offending act. On their intervention however, the appellant fled from the place of occurrence. The incident having been reported to the informant later in the night, the written report was lodged the next day. 4. On the said report, the police registered a case under Section 323, 354 & 376 IPC, and on the conclusion of the investigation, submitted a charge-sheet thereunder against the appellant. He having denied the charge under the above provisions, he was made to stand trial. The prosecution examined, amongst others, the prosecutrix PW-6, the two persons named in the FIR, Unkar PW-7 and Uda PW-8, Dr.Om Prakash Joshi PW-13, who had medically examined the victim and her husband Ramswaroop, the informant, PW-1, apart from the investigating officer. The appellant in his statement under Section 313 Cr.P.C denied the charge, and as desired by him, also adduced defence evidence by examining three witnesses. At the conclusion of the trial, to reiterate, the appellant was convicted by the judgment and order impugned under Section 376 & 341 IPC. 5. The learned amicus curiae has emphatically argued that the evidence of the prosecutrix PW-6, PW-7 Unkar and PW-8 Uda is inconsistent with the version set out in the FIR, and thus, the prosecution case is wholly untrustworthy. 5. The learned amicus curiae has emphatically argued that the evidence of the prosecutrix PW-6, PW-7 Unkar and PW-8 Uda is inconsistent with the version set out in the FIR, and thus, the prosecution case is wholly untrustworthy. According to him Unkar PW-7 & Uda PW-8 have contradicted themselves on material particulars vis-a-vis the incident, which thus, belies the veracity of the charge levelled against the appellant. The learned amicus curiae has argued that the testimony of the prosecutrix, when read with the medical evidence, renders the same wholly unacceptable, and thus, the learned trial court ought to have acquitted the appellant. He has argued that the injuries found on the body of the prosecutrix could not have been caused by a sharp cutting weapon, like an axe, as alleged thus, rendering the prosecution case wholly unacceptable. It has been urged as well that the appellant, at the relevant time, was a minor. 6. The learned Public Prosecutor has argued that the evidence of the prosecutrix PW-6 and the two witnesses Unkar PW-7 & Uda PW-8 does prove the prosecution case beyond all reasonable doubt, and therefore, the appellant has been rightly convicted and sentenced by the learned trial court. Referring to the site plan, the learned Public Prosecutor has argued that it is apparent therefrom that the sign of dragging was detected at the place of occurrence, and that, broken bangles of the prosecutrix and her key was also retrieved therefrom. According to the learned Public Prosecutor, the injuries found on the body of the prosecutrix fully corroborated her version, and thus, the charge having been proved against the appellant, the impugned judgment and order does not warrant any interference. 7. Before analyzing the arguments advanced, it would be appropriate to notice the relevant evidence. 8. PW-1 Ramswaroop, the husband of the prosecutrix is a reported witness. He however did prove the written report Ex.P-1. He referred to the disclosure made to him by the prosecutrix that while the appellant was committing the offending act, Unkar and Uda PW-7 & PW-8 respectively had come to the place of occurrence, and that, they had separated him from her. PW-6, the prosecutrix on oath stated that at about 11 a.m. on the date of the incident, while she was working in the field, the appellant was herding his cow with an axe in his hand. PW-6, the prosecutrix on oath stated that at about 11 a.m. on the date of the incident, while she was working in the field, the appellant was herding his cow with an axe in his hand. He suddenly, according to the witness, held her hand, for which she shouted and then the appellant assaulted her on various parts of her body with the axe, and also tore her wearing clothes. The witness stated that thereafter, the appellant dragged her to nearby nala and forcibly committed sexual intercourse with her for about one and a half hour, whereafter he got up from her. The witness stated that as she raised alarm Unkar PW-7 and Uda PW-8 reached the place of occurrence, whereupon the appellant took his axe and fled from the place. She stated that the police, on being reported, had seized her wearing apparel, and also the broken bangles and her key from the place of occurrence. In cross-examination, she denied the suggestion that she had taken the axe of the appellant, which was objected to by him, whereupon a quarrel between them ensued. She stated further that Unkar and Uda, at the time of the incident, were about 2 to 4 feet away from the place thereof. She admitted that she did not assault the appellant. She however, stated that the appellant had ejaculated in her vagina. 9. PW-7 Unkar stated that at about 10 a.m. in the morning of the date of the incident, he was herding his cow alongwith Uda PW-8, when he heard the cries of a woman and as he reached the place from where the same was coming, he found the appellant committing rape on the prosecutrix. The witness claimed that he and Uda having intervened and separated the appellant, he left the place of occurrence. In cross-examination, this witness admitted of not having seen any axe in the hand of the appellant. He stated further that Uda PW-8 had reached the place of occurrence after him. He also stated that the appellant left the place of occurrence soon after he reached there and he (witness) did not apprehend him. He admitted as well that when he and Uda were about 2 to 3 feet away from the place of occurrence, the appellant made good his escape. 10. He also stated that the appellant left the place of occurrence soon after he reached there and he (witness) did not apprehend him. He admitted as well that when he and Uda were about 2 to 3 feet away from the place of occurrence, the appellant made good his escape. 10. PW-8 Uda deposed that at about 10/11 a.m. on the date of the occurrence, while he was herding his cow alongwith Unkar, they heard the cries of a woman from 200 feet away, whereupon they rushed to the place of occurrence. According to the witness, Unkar did reach the same before him. He stated that he only had seen the appellant leaving the place of occurrence. In cross-examination, the witness stated as well that he was short of vision, and that, the appellant had not been seen by him. He expressed his ignorance as to whether the appellant and the prosecutrix had quarrelled over the axe in the matter of cutting of woods. PW-13 Dr.Om Prakash Joshi disclosed in her evidence that the prosecutrix, at the relevant time, was aged 35 years. He however, stated that though there was no external injury on the private parts of the prosecutrix, there was some bloody secretion from her vagina. He however, clarified that there was no injury in her vaginal wall. The doctor testified that the vaginal swab of the prosecutrix was collected. He indicated about 15 injuries on her body, majority whereof were abrasions. The doctor stated that these injuries were simple in nature. In cross-examination, the witness stated that the injuries sustained, could be caused by blunt weapon as well as on a fall on small sharp stone pieces. The doctor was categorical in stating that these injuries could not have been caused by an axe. He disclosed further that there was neither any injury nor any inflammation in the private parts of the prosecutrix. 11. DW-1 Prahlad, DW-2 Ramchandra and DW-3 Devalal, all consistently stated that at the time of the occurrence, the appellant was herding his cows and had an axe with him. The prosecutrix snatched the axe from him, for which, there was a quarrel followed by a jostle, in course whereof, both of them sustained injuries. DW-1 Prahlad and DW-3 Devalal, in particular, denied that the appellant had committed rape on the prosecutrix. 12. The prosecutrix snatched the axe from him, for which, there was a quarrel followed by a jostle, in course whereof, both of them sustained injuries. DW-1 Prahlad and DW-3 Devalal, in particular, denied that the appellant had committed rape on the prosecutrix. 12. The evidence on record and the arguments advanced have been duly analyzed. 13. In terms of the FIR the prosecutrix had been forcibly raped as well as assaulted at various places on her body by the axe. PW-7 Unkar and PW-8 Uda, on hearing her cries had together reached the place of occurrence and had seen the offending act. In terms of the FIR however, the incident had taken place at about 4:00 p.m. on the date of the occurrence, which is contra the version of the prosecutrix and the two witnesses Unkar and Uda, who mentioned it to be between 11 a.m. to 12 noon. Thus, the time of the occurrence, as mentioned in the FIR does not tally with the one, as referred to by the prosecutrix and the two witnesses Unkar and Uda. According to the prosecutrix, the duration of the offending act was about one and a half hour, and before that, she had been assaulted at various places by the appellant with his axe. She stated that on hearing her cries, Unkar and Uda had reached the place of occurrence, whereupon the appellant fled from the scene. It passes ones comprehension, as to why, if the prosecutrix had first been assaulted a number of times by the axe and thereafter she was ravished for about one and a half hour, she did not raise any alarm earlier, though she, in her cross-examination, stated that these two witnesses were located about 2 to 3 feet away from the place of occurrence. The situation of these two witnesses, as mentioned by the prosecutrix also, in the opinion of this Court, makes her version, with regard to the offences said to have been committed, highly doubtful. Whereas PW-7 Unkar has contradicted himself as to the actual point of time when he reached the place of occurrence, PW-8 Uda had admitted in his examination-in-chief that he had only seen the appellant leaving the place. In cross-examination however, he mentioned that he did not see him at all. Dr.Om Prakash Joshi PW-13, in categorical terms, stated that the prosecutrix did not suffer injury in her private parts. In cross-examination however, he mentioned that he did not see him at all. Dr.Om Prakash Joshi PW-13, in categorical terms, stated that the prosecutrix did not suffer injury in her private parts. He stated as well that the other injuries, most of which were abrasions, could not have been caused by an axe. 14. On a cumulative consideration of the evidence of the prosecution witnesses, this Court is of the firm view that the prosecution had failed to prove the charge of rape against the appellant. The testimony of the witnesses read together with the trend of the cross-examination adopted by the defence, suggests that an incident of quarrel followed by physical confrontation had taken place between the appellant and the prosecutrix. PW-10 Dr.Gopal Singh Rajawat who had medically examined the appellant did detect five abrasions on his body. According to this witness, the appellant did not sustain any injury on his private parts. This medical evidence, when juxtaposed with the testimony of the defence witnesses and the overall factual scenario available from the materials on record, establish in the opinion of this Court, that the charge of rape against him (appellant) has not been proved. A quarrel ensuing in a fight between him and the prosecutrix over the possession of the axe had taken place, in course whereof, both of them had suffered injuries. 15. Noticeably, PW-7 Unkar and PW-8 Uda, at the relevant time, were aged 60 and 65 years respectively. To reiterate, their testimony does not fully support that of the prosecutrix. When tested on the touchstone of the version provided in the FIR, the prosecution case qua the allegation of forcible sexual intercourse does not commend for acceptance. In the facts and circumstances of the case, the appellant at the most can be held to be guilty of the offence of hurt under Section 323 IPC. None of the injuries sustained by the prosecutrix is grievous in nature. 16. In this view of the matter, having regard to the overall state of evidence, the conviction of the appellant under Section 376 IPC is interfered with. 17. Having regard to the genesis of the quarrel and the fight between the appellant and the prosecutrix resulting in injuries to both of them, this Court is of the view that his conviction under Section 341 IPC ought not to be sustained as well. 17. Having regard to the genesis of the quarrel and the fight between the appellant and the prosecutrix resulting in injuries to both of them, this Court is of the view that his conviction under Section 341 IPC ought not to be sustained as well. He could, at best, be found guilty of offence of committing hurt. 18. In the facts and circumstances of the case, he is convicted under Section 323 IPC. The materials on record reveal that during the investigation and the trial, the appellant had been in custody for over a month. 19. In this view of the matter, having regard to the time lag in between, it would meet the ends of justice, if the sentence of imprisonment, consequent upon the appellant's conviction under Section 323 IPC, is limited to the period already done by him, as above. ORDERed accordingly. The impugned judgment and order is interfered with. The appeal is allowed in the above terms. While appreciating the assistance rendered by Mr.Govind Rawat, learned amicus curiae, this Court directs payment of his professional fee of Rs. 5,000/- to be borne by the Rajasthan State Legal Services Authority.Appeal partly allowed. *******