Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 32 (RAJ)

Badshan v. State of Rajasthan

2014-01-03

AMITAVA ROY

body2014
JUDGMENT 1. - The judgment and order dated 09.11.1989 passed by the learned Sessions Judge, Kota in Sessions Case No.183/1989 convicting the appellant herein under Section 376/511 IPC and sentencing him to suffer two years' rigorous imprisonment and pay a fine of Rs. 100/-, in default to further undergo 15 days' rigorous imprisonment, constitutes the subject matter of challenge in the instant appeal. 2. I have heard Mr.Rinesh Gupta, learned counsel for the appellant and Ms.Rekha Madnani, learned Public Prosecutor, Rajasthan. 3. The facts in brief leading to the prosecution of the appellant are that on 26.02.1989, a written report was lodged with the Officer Incharge, Police Station Bhimganj Mandi, Kota by one Devesh Chandra Dube mentioning that on the same day, he had gone out on the rickshaw to earn his livelihood. His wife was also out of the house on some vocation and their minor daughter Baby aged about 6 years was at home. The informant alleged that at about 12 noon, when he returned for lunch, he could hear the subdued cries of his daughter from the nearby shed of the appellant, Badshan, where he used to stay. According to the informant, when he reached the shed of the appellant, he found that the appellant and his daughter Baby, were both naked. The informant stated that on seeing him, his daughter cried out and when inquired, she disclosed to him that she had been molested by him (appellant). As per the report, at that point of time, one Prabhu Lal and Ganpati were present at that place. After retrieving his child, the informant lodged the report. 4. On this report, police registered a case against the appellant under section 376/511 IPC and on completion of the investigation, laid a chargesheet against him. The appellant was thereafter charged under section 376/511 IPC, to which he pleaded "not guilty". At the trial, the prosecution examined several witnesses including the informant Devesh Chandra Dube (PW-1), prosecutrix Baby (PW-2), Ganpati (PW-3), Pabhulal (PW-4) and the Investigating Officer (PW-6). No doctor was examined. The appellant in his statement under section 313 Cr.P.C. however, denied the charge in full. The learned trial court convicted and sentenced him as above. 5. At the trial, the prosecution examined several witnesses including the informant Devesh Chandra Dube (PW-1), prosecutrix Baby (PW-2), Ganpati (PW-3), Pabhulal (PW-4) and the Investigating Officer (PW-6). No doctor was examined. The appellant in his statement under section 313 Cr.P.C. however, denied the charge in full. The learned trial court convicted and sentenced him as above. 5. Mr.Gupta has argued that the prosecution witnesses PW-1, PW-2, PW-4 & PW-5 having contradicted themselves on material particulars, the charge levelled against the appellant had remained unproved and therefore, he ought to have been acquitted. As more importantly, Ganpati (PW-3), who according to the written report, was present at the place of occurrence, had turned hostile and Prabhulal (PW-4) had not supported the prosecution case, the learned court below erred in law and on facts in recording conviction against the appellant, he urged. Referring to the medical report Exhibit P-7 pertaining to the prosecutrix, the learned counsel insistently urged that as the same did not disclose any injury on her body and that instead the examining doctor had opined that there was no finding to suggest any sexual assault, the conviction of the appellant, if allowed to stand, would be a gross travesty of justice. Learned counsel has argued that even the learned court below was not convinced that the appellant was guilty of the offence of rape, but erroneously convicted him under section 376/511 IPC on a total misreading of the evidence on record. 6. Ms.Madnani as against this has urged that it having been proved beyond doubt that the appellant and the prosecutrix were found in a naked condition as testified by PW-2, the learned trial court had rightly convicted him (appellant) under section 376/511 IPC having due regard as well to the version of the prosecutrix recorded by it. As the evidence of PW-1, PW-2 & PW-4, in particular, endorsed the veracity of the prosecution case, no interference with the impugned judgment and order is called for, she asserted. According to her, the evidence of these witnesses did not divulge any irreconcilable inconsistencies to render them unworthy of any credence. 7. PW-1, the father of the prosecutrix, in his evidence on oath reiterated his version as in the written report. He, however, deposed further that on being asked, the prosecutrix alleged that the appellant had committed rape on her. According to her, the evidence of these witnesses did not divulge any irreconcilable inconsistencies to render them unworthy of any credence. 7. PW-1, the father of the prosecutrix, in his evidence on oath reiterated his version as in the written report. He, however, deposed further that on being asked, the prosecutrix alleged that the appellant had committed rape on her. He stated that he thereafter confined the appellant in his shed and went to the police station where he lodged the report. Noticeably, in his deposition, he did not mention about the presence of Prabhulal and Ganpati as mentioned in his written report. 8. PW-2 the prosecutrix stated that she did not know the appellant, though he used to stay near her house. She alleged that the appellant had raped her. In cross-examination, she stated that she, however, did not bleed by the act. PW-4 Prabhulal stated that on the date of occurrence at about 12 noon when he had come to have lunch, he saw a crowd near the house of the appellant and when he reached there, he found the appellant standing. He also stated to have seen the prosecutrix there with her undergarment in hand. According to him, the appellant requested him to mediate and resolve the problem. The witness stated further that as the appellant also tried to flee from the place, he apprehended and took him to the police station. PW-3 Ganpati expressed total ignorance about the incident and was declared hostile. 9. To reiterate, no doctor was examined. The medical report available on record and proved by the Investigating Officer to be Exhibit P-7 issued by the Medical Jurist, MBS Hospital, Kota following examination of the prosecutrix, reveals that no external injury on her body was detected. It disclosed further that there was no positive finding to suggest any sexual assault. The oral and documentary evidence on record, in the opinion of this Court, taken as a whole, does not prove the charge of rape against the appellant. If the version recorded in the written report is to be accepted on its face value, Prabhu Lal (PW-4) and Ganpati (PW-3) were also present when the informant, as claimed by him, had detected the appellant and the victim together in his shed in a naked condition. As referred to hereinabove, neither of these two witnesses did support the informant on this aspect. As referred to hereinabove, neither of these two witnesses did support the informant on this aspect. Further the testimony of the victim is totally belied by the medical report Exhibit P-7. Having regard to her tender age, if the allegation of rape would have been correct, she would have suffered severe injuries on her private parts. 10. On a totality of the considerations as above, in the opinion of this Court, the prosecution has failed to prove the charge against the appellant beyond all reasonable doubt. He is thus, entitled to the benefit of doubt in the attendant facts and circumstances of the case as well as considering the state of evidence adduced by the prosecution. 11. In this view of the matter, the appeal succeeds. The impugned judgment and order is set aside. The appellant is acquitted of the charge. He is thus, set at liberty. The bail bonds stand discharged. The office would remit the records.Appeal allowed. *******