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2014 DIGILAW 156 (RAJ)

Babulal v. State of Rajasthan

2014-01-10

AMITAVA ROY

body2014
JUDGMENT 1. - The appellants are aggrieved by their conviction under section 376 IPC and the sentence awarded therefor vide the judgment and order dated 21.05.1990 passed by the learned Additional Sessions Judge No.2, Alwar in Sessions Case No.16/1989. 2. We have heard Mr.V.P.Vishnoi, learned counsel for the appellants and Ms.Rekha Madnani, learned Public Prosecutor, Rajasthan. 3. The prosecutrix Smt.Bhagwati, wife of Ramniwas, lodged a report with the officer incharge, Police Station Bansur alleging that on 12.02.1989 while she had been collecting cattle feed from a nearby field at about 9.30 a.m., the appellants Babu and Baldev reached there, whereafter Babu caught hold of her hand, dragged her to a nearby mustard field, felled her thereon and Baldev after gagging her, committed rape on her. Thereafter Babu gagged her and Baldev committed rape on her. According to the prosecutrix, after finishing the act, the appellants left the place of occurrence whereafter when she returned home, she informed her mother-in-law and her husband, and eventually, the report was lodged. As would appear from the report Exhibit P-1, it was recorded on 13.02.1989 at 4.20 a.m. On completion of the investigation, chargesheet was laid against the appellants under section 376 IPC and they having denied the charge, were made to stand trial. At the trial, the prosecution examined prosecutrix Smt.Bhagwati (PW-1), her mother-in-law Birdi (PW-4) and Dr.Subhash Agarwal (PW-6). The appellants stated in their examination under Section 313 Cr.P.C. that the incriminating evidence laid by the prosecution was untrue and thus denied the charge. He also examined one witness in defence. 4. The trial court by the impugned judgment and order, however, convicted them under section 376 IPC and sentenced them accordingly. 5. The learned counsel for the appellants has emphatically argued that the prosecutrix having contradicted herself on material particulars i.e. time and place of occurrence and as her testimony is also incompatible with the medical evidence, the learned trial court ought to have rejected the prosecution case as wholly untrue. He has argued further that if the evidence of the prosecutrix is accepted on its face value, her body ought to wear severe injuries, more particularly, on her back and buttock, in view of the uneven surface, sharp mustard plants twigs and the absence thereof, totally bely the veracity of the charges, and thus, the learned trial court ought to have acquitted the appellants. While pleading that the commission of the offence as alleged by a thoroughfare in broad day light as alleged is even otherwise an impossibility, absence of spermatozoa in the vaginal swab of the prosecutrix also did render the charge of rape wholly unfounded, more particularly, in the face of the evidence of the prosecutrix that the appellants had ejaculated in her vagina. Learned counsel for the appellants has argued that the roles assigned by the prosecutrix to the appellants at the time of the alleged act, did render the same impossible, thus, making her untrustworthy. That the commission of rape on her by the appellants in the manner narrated by the prosecution is improbable being endorsed by the medical evidence as well, the learned trial court ought to have held the charge to be not proved against them. Even otherwise, the learned counsel for the appellants has argued, that it is against the normal human conduct that the appellants, who are brothers, would be jointly engaged in such an act together. 6. Learned Public Prosecutor, in reply, has urged that not only in the report to the police, appellants have been named to be the violators of the prosecutrix, her testimony being adequately corroborated by PW-4 and PW-5, no interference with the impugned judgment and order is called for. According to her, the injuries found on the body of the prosecutrix did fully tally with the acts, with which the appellants had been charged, the mere fact that there is no injury on her private parts, she being a married lady did not detract from the proposition that they were the real culprits. 7. A brief survey of the evidence on record would be essential at this stage. 8. The prosecutrix PW-1 stated on oath that it was Baldev, who, at the first instance, gagged her and thereafter the appellant Babu dragged her to the nearby mustard field and felled her thereon and committed rape on her. While Babu was committing the act, the appellant Baldev had gagged her. She alleged that thereafter Babu gagged her mouth and the appellant Baldev committed the act of coitus with her, for which she became unconscious. She admitted to have been subjected to medical examination. In cross-examination, she stated that on her way back, she met one woman named Sanjja, but she did not disclose to her the incident. She alleged that thereafter Babu gagged her mouth and the appellant Baldev committed the act of coitus with her, for which she became unconscious. She admitted to have been subjected to medical examination. In cross-examination, she stated that on her way back, she met one woman named Sanjja, but she did not disclose to her the incident. She admitted to have children. She also admitted that at the place of the occurrence, there were broken mustard plants of the size of a finger. According to her, while she had been in her fields, she had with her a cutting weapon (Jelli). She stated that at the time of the forcible sexual intercourse, the appellants did hold her hand and feet together. She conceded, however, that she did not receive any injury and also did not cry out at the time of the incident. That neither her clothes nor her body got stained with mud or dirt was admitted by her as well. 9. PW-4 Birdi, the mother-in-law of the prosecutrix, on being reported about the incident, asked one Goma, Dalumaster and Ratta to visit the place of occurrence and ascertain what had happened. They after sometime returned and reported that everything was complete. In cross-examination, she confirmed as well that when the prosecutrix had returned home, she did not find any mud or dirt on her clothes and that she (victim) did neither wash herself nor change her wearing apparels. She disclosed further that the prosecutrix also did not show to her any injury. 10. PW-6 Dr.Subhash Agarwal, who had medically examined the prosecutrix, stated that during the examination, he detected a blue mark on her chest and bruises on her left breast. According to the witness, the prosecutrix at the relevant time was aged 19 years and opined that at the time of her examination, it was not possible to say with certainty as to whether she had been subjected to sexual intercourse. The doctor had examined the appellants also and with reference to the report Exhibit-P.10 & P.11 stated that there was no injury on their penis. On a specific query being made to him, the witness opined that if both the hands and feet are held of a woman, no rape can be committed on her. The doctor had examined the appellants also and with reference to the report Exhibit-P.10 & P.11 stated that there was no injury on their penis. On a specific query being made to him, the witness opined that if both the hands and feet are held of a woman, no rape can be committed on her. Referring to the medical report Exhibit-P.9, the doctor also stated that vaginal swab of the prosecutrix did not reveal existence of any spermatozoa. According to the doctor, in course of medical examination to determine as to whether the victim has been subjected to rape, injuries on the private parts, condition of the vagina, existence or otherwise of semen in it etc. are examined. The witness stated that vis-`-vis the prosecutrix none of these tests did reveal any positive finding. 11. Upon hearing the learned counsel for the parties and on a consideration of the evidence on record, more particularly, the testimony of the prosecutrix and the doctor as above, this Court is of the view that the prosecution has not been able to prove the case of rape against the appellants. The prosecutrix at the relevant time was a married lady. The manner in which, according to her, she was ravished, to reiterate, ought to have resulted in severe injuries on her body. The injuries found in course of the medical examination are not compatible with the evidence of the prosecutrix in this regard. Absence of spermatozoa in her vaginal swab also is a factor, which cannot be ignored. That allegedly the incident had occurred in broad day light and by the side of a thoroughfare, render the prosecution case highly doubtful. 12. On an overall consideration of the evidence on record, it cannot be concluded that the prosecution has been able to prove the charge against the appellants beyond all reasonable doubt. They are thus, entitled to the benefit of doubt. 13. The appeal therefore, succeeds. The impugned judgment and order is set aside. The appellants are acquitted of the charges. They are thus, set at liberty. The bail bonds stand discharged. The office would remit the records.Appeal allowed. *******