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2014 DIGILAW 483 (RAJ)

Kachru Lal v. State of Rajasthan

2014-02-14

AMITAVA ROY

body2014
JUDGMENT 1. - The judgment and order dated 21.11.1989 and 23.11.1989 passed by the learned Sessions Judge, Ajmer in Sessions Case No. 105/1986 convicting the appellant under Section 376 IPC and sentencing him to suffer five years' rigorous imprisonment and to pay fine of Rs. 200/ - and in default, to undergo rigorous imprisonment for further two months and also convicting him under Section 451 IPC and sentencing him with imprisonment & fine, constitute the subject matter of scrutiny in the present appeal. 2. The prosecution was set in motion on the basic of a telephonic information conveyed by the Medical Officer, JLN Hospital, Ajmer to the effect that one Meera Bai w/o Mishrilal had been brought to the hospital by her mother with 60% burns and that in course of her treatment, she (Meera Bai), when interrogated, had disclosed that a couple of days before, the appellant had committed forcible sexual intercourse with her in her house and as because of this incident, her husband and her other family members assaulted and humiliated her, she being unable to bear the shame and insult, had tried to commit suicide by setting herself on fire. On this, a case was registered under sections 451 and 376 IPC against the appellant and a charge - sheet was laid against him on completion of the investigation under the said provisions of law. The appellant denied the charges and trial followed. Before that, Meera Bai expired. The prosecution at the trial examined the sister in law of the deceased viz, Smt. Bhanwari, Mishrilal husband of the victim, the doctors who had treated her and had performed the post mortem examination and the investigating officer, amongst others. The appellant reiterated the denial of charges in course of his examination under Section 313 Cr.P.C. He was, however, convicted and sentenced as above. 3. PW 1 Smt. Bhanwari stated on oath that she was sister in law of the deceased and that her house at the time of the incident was located near that of Meera Bai. She deposed that on the date of the incident, she having heard the sound of weeping of the deceased, went to her house, which was bolted. As she knocked, the door was opened by the appellant. The witness stated that both the appellant and the deceased looked disoriented and dishevelled. She deposed that on the date of the incident, she having heard the sound of weeping of the deceased, went to her house, which was bolted. As she knocked, the door was opened by the appellant. The witness stated that both the appellant and the deceased looked disoriented and dishevelled. The witness claimed that the deceased complained to her that the appellant had forcibly raped her to which the (appellant) acknowledged his mistakes. The witness further stated that the deceased thereafter narrated the incident to her other sister in law and that about eight days therefrom, she doused herself in kerosene oil and set herself on fire to commit suicide. This witness denied the suggestion on behalf of the defence that from six months before the incident, the appellant and the deceased were living together. 4. PW 2 Smt. Nirmal Gupta, who was a doctor at the JLN Hospital, Ajmer, on 11.5.1986 and had treated the deceased, stated that at that time, she was in a burnt state. The witness stated that on examination, she could not detect any sign of use of force on her. The doctor also could not, in definite terms, state she had been subjected to forcible sexual intercourse though it was opined that she was used to it. 5. The evidence of PW 3 Smt. Gulabi and PW 4 Smt. Jeevni is that of reported witnesses. It is stated that the deceased had confided in them that the appellant had molested her. 6. PW. 6 Mishrilal, husband of the deceased, deposed that after he had returned home in the night of the incident, his wife disclosed to him that the appellant had violated her. The witness stated that as then there was no relative or friend available, he would take necessary action on the next day. The witness further stated that in the following morning, he went out for his work and on his return home, he found that his wife had set herself on fire. 7. PW 8 Dr. Laxminarayan, who on 15.5.1986 was the Medical Jurist of the JLN Hospital, did perform the post mortem examination of the dead body of Meera Bai. He stated with reference to the report that the death was due to shock as a result of ante mortem burns. 8. 7. PW 8 Dr. Laxminarayan, who on 15.5.1986 was the Medical Jurist of the JLN Hospital, did perform the post mortem examination of the dead body of Meera Bai. He stated with reference to the report that the death was due to shock as a result of ante mortem burns. 8. PW 13 Sugan Chand was on 11.5.1986 posted at the concerned Police Station and on receiving information about the admission of the deceased, he, was detailed for duty thereat. This witness stated that the Medical Officer in, attendance having certified that the victim was then in a fit mental state to make a statement, recorded the same, as made. This witness proved the statement recorded by him. 9. Learned counsel for the appellant has argued that the evidence on record would demonstrate without any ambiguity that the appellant had been i framed in order to shield the family members of the deceased and, thus, on this count alone, he deserves to be acquitted. Pointing out the time lag between the alleged act of forcible sexual intercourse and the suicidal attempt by the deceased by setting herself on fire, learned counsel has submitted that it, by no means, can be construed that this desperate act of hers was a result of ravishment by the appellant. Pointing out that no charge under Section 306 IPC had been levelled against the appellant, learned counsel has argued that the deceased indeed ended her life due to unbearable torture by the husband and the in laws and that the appellant had been falsely implicated. Learned counsel has argued that the appellant and the deceased were living together much prior to the incident and that her husband and in laws did design this plot to eliminate both of them. 10. Learned Public Prosecutor in reply has submitted that the dying declaration of the deceased if accepted, the charge levelled against the appellant is conclusively proved. According to him, the dying declaration is flawless and, thus, no interference with the impugned judgment and order is called for. 11. The materials on record and the arguments advanced have received due consideration. That the deceased had set herself on fire on 11.5.1986 in a bid to end her life, is a matter of record. Her statement recorded under Section 164 Cr.PC. 11. The materials on record and the arguments advanced have received due consideration. That the deceased had set herself on fire on 11.5.1986 in a bid to end her life, is a matter of record. Her statement recorded under Section 164 Cr.PC. on that date at about 9 PM discloses that a couple of days prior thereto, when she was in her house, the appellant, who was her neighbour, came and outraged her modesty and fled therefrom. She stated that upon having narrated this to her sister in law, the mother of the appellant was confronted therewith, who regretted the incident. She further stated that her mother in law and family members reprehended and ridiculed her, she, having felt terribly ashamed, doused herself in kerosene oil and set herself on fire, which eventually was put off by her sister in law. The statement of the deceased in her dying declaration in the opinion of this court is not categorial enough to conclude that he (appellant) had been accused of committing forcible sexual intercourse with her. To reiterate, PW 1 Smt. Bhanwari, her sister in law, had stated in her testimony that the suicidal attempt had been made by - the victim about eight days after the date on which the victim was molested by the appellant. It passes one's comprehension as to why no report was lodged with the police of the incident of commission of rape on the deceased, if true, before the victim had to be admitted to the hospital with severe burn injuries. Had this allegation of rape by the appellant on the deceased been true, there was no reason not to lodge any report in connection therewith with regard to seriousness of the offence with the police immediately thereafter. No explanation is forthcoming from the prosecution to explain this omission on the part of the family members of the deceased. This assumes significance in absence of any charge under Section 306 IPC against the appellant. In this context, the suggestion of the defence that the appellant and the deceased used to live together six months before the incident, is of considerable significance. Further, the medical evidence does not indicate any sign of use of forcible sexual intercourse on the deceased. This assumes significance in absence of any charge under Section 306 IPC against the appellant. In this context, the suggestion of the defence that the appellant and the deceased used to live together six months before the incident, is of considerable significance. Further, the medical evidence does not indicate any sign of use of forcible sexual intercourse on the deceased. The indifferent and passive conduct of the husband of the deceased on being reported about the incident of rape, the same night as is evident from his testimony, also renders the case of the prosecution on this charge untrustworthy. No husband having been made aware of such a serious offence, would have acted so indifferently and refrained from taking any action and wait, till she would set herself on fire. The material on record as a whole, thus, cast a serious doubt on the veracity of the prosecution case vis-a-vis the charge levelled against the appellant. The plea of his false implication, therefore, cannot be ruled out. 12. In the opinion of this court, the appellant is, thus, entitled to the benefit of doubt. The impugned judgment and order, therefore, is unsustainable in law and on facts and is interfered with. 13. The appeal is, thus, allowed. The appellant is acquitted of the charges and his bail bonds stand discharged. The office to remit the record to the learned court below.Appeal allowed. *******