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2015 DIGILAW 129 (RAJ)

Banwarilal v. State of Rajasthan

2015-01-15

RAGHUVENDRA S.RATHORE, V.K.MATHUR

body2015
JUDGMENT : Hon'ble MATHUR, J.—This appeal under Section 374(2) Cr.P.C. arises out of the impugned judgment and order dated 26.7.2008 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur, in Sessions case No. 79/2007. 2. The learned trial Court has convicted the appellants-accused Banwarilal and Seduram for the offence under Section 376(2)(g) IPC and sentenced them for ten years R.I. with a fine of Rs. 5,000/- and in default of which to further undergo two months R.I.; for the offence under Section 366A IPC ten years R.I. with a fine of Rs. 1,000/- and in default of payment to further undergo one month R.I.; for the offence under Section 363 IPC for seven years R.I. with a fine of Rs. 1,000/- and in default of payment to further undergo one month R.I.; for the offence under Section 3(2) (v) of SC/ST (Prevention of Atrocities) Act, 1989 for life imprisonment with a fine of Rs. 5,000/- each and in default of payment to further undergo two months R.I. 3. However, the accused Arjunlal has been acquitted for the offences u/Sec. 363, 366A, 376(2)(g) IPC and Section 3(2)(v) SC/ST Act by the trial court. Facts 4. The brief facts of the case are that on 26.9.2007, prosecutrix (PW.2) aged 15 years had stated on which a Parcha Bayan (Ex. P.1) was recorded at Police Station, Manoharpur, Jaipur that on 25.9.2007 her parents had gone to Bairath Court attending a court date in a case of land dispute. She was at the house alongwith her two younger sisters and three younger brothers. In the afternoon, at about 3-4 PM, Banwari Brahamin son of Kaluram resident of Guda came and told that her Bhua Gyarsi is to b called upon as her father is being sent to jail by her Bhua and Phupha. She had after informing her younger brothers and sisters gone with Banwarilal and on the way two persons more persons sat on the motorcycle and started talking to each other, referring their names as Sedu and Arjun. When they reached Sidh Ashram Ghuwali Mandir near big nala and jungle, motorcycle was stopped and all of them got down. They told her that now they will go on foot. Thereafter, Sedu Yadav who is from Achrol took her in the nala and others remained on side of the nala. When they reached Sidh Ashram Ghuwali Mandir near big nala and jungle, motorcycle was stopped and all of them got down. They told her that now they will go on foot. Thereafter, Sedu Yadav who is from Achrol took her in the nala and others remained on side of the nala. Sedu committed sexual intercourse with her and thereafter Banwari also. They were seen by the persons who were grazing the cattles and who raised hue and cry. Thereafter the accused persons ran away. The prosecutrix was stopped by the persons. Subsequently Payal Baba and some other persons came and on an enquiry made, she told that she is a brahmin and resident of Manoharpur. She went with Payal Baba and other persons to the temple where after taking food went to the residence of Payal Baba. On next day morning, when her father alongwith other persons came searching that she went with them and narrated the incident to her mother, who had then told to her father. She had gone with her father, to the police station where her Parcha Bayan (Ex. P.1) was recorded and then a FIR No. 136/2007 (Ex. P.2) was registered under Section 363, 366, 376(2)(g) IPC and under Section 3(1)(xii), 3(2)(v) SC/ST Act at police station Manoharpur, Jaipur. 5. On conclusion of investigation, challan came to be filed against the accused persons Banwarilal, Seduram and Arjunlal under Section 363, 366, 376(2)(g) IPC and 3(1)(xi)3(2)(v) SC/ST Act, in the Court of Judicial Magistrate, Shahpura. The case was then committed to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur. 6. The learned trial court framed charges against the accused persons for the offences under Section 363, 366A, 376(2)(g) IPC and 3(2)/(v) SC/ST (Prevention of Atrocities) Act, who denied the charges and claimed for trial. 7. In support of its case, the prosecution had examined 12 witnesses and produced 17documents which were duly exhibited. The appellants-accused were examined under Section 313 Cr.P.C., wherein they had stated that they had been falsely implicated in the present case on account of the dispute with Gurjars and enmity regarding money transactions. They produced DW-1 Kaluramand four documents in their defence. 8. The learned trial Court acquitted the co-accused Arjunlal from all the charges levelled against him and convicted and sentenced the appellants vide judgment and order dated 26.7.2008. They produced DW-1 Kaluramand four documents in their defence. 8. The learned trial Court acquitted the co-accused Arjunlal from all the charges levelled against him and convicted and sentenced the appellants vide judgment and order dated 26.7.2008. This appeal has been filed by the appellants Banwarilal and Seduram for setting aside the conviction and sentence awarded by trial Court. Contentions of learned counsel for the parties 9. The learned counsel for the appellants-accused Banwarilal and Seduram has submitted that the learned trial court had erred in passing the impugned judgment as the prosecution had failed to prove its case beyond reasonable doubt. Further, it has been submitted that the statement of the prosecutrix is not trustworthy; the accused Seduram was not known to her and no identification parade was conducted in this respect. 10. He has further stated that Dr. Nirmala Sharma (PW.11) did not find any injury on the private parts of the prosecutrix and as per her report no definite opinion of rape could be given. He has further submitted that the accused Seduram had been identified by the prosecutrix, for the first time, in the Court and such an identification has no meaning. The evidence of the prosecutrix is not trustworthy and cannot be relied upon to hold the appellants-accused guilty. There is no evidence to prove the commission of any offence under Section 3(2)(v) SC/ST Act and the appellants deserve to be acquitted of all the charges against them. In support of his contentions the learned counsel for the appellants has relied on the case of Krishan Kumar Malik vs. State of Haryana, (2011) (7) SCC 130 and Ramdas and Others vs. State of Maharashtra, 2007(1) SCC (Criminal) 546. 11. On the other hand, the learned Public Prosecutor has supported the impugned judgment passed by the trial court. Further, it has been submitted that the names of the appellants-accused Banwarilal and Seduram have been mentioned in the first information report and the accused Banwarilal was known to the prosecutrix. She has identified both the appellants in court. It is established from the medical evidence on record that the prosecutrix, at the time of incident, was below 18 years of age. Her statement is trustworthy and of sterling quality to show that a case of gang rape against the appellants-accused had been established beyond reasonable doubt. She has identified both the appellants in court. It is established from the medical evidence on record that the prosecutrix, at the time of incident, was below 18 years of age. Her statement is trustworthy and of sterling quality to show that a case of gang rape against the appellants-accused had been established beyond reasonable doubt. The learned Public Prosecutor, therefore, submitted that there is no illegality and infirmity of the judgment passed by the learned Trial Court and the same deserves to be affirmed by this Court. Findings of the Court 12. We have perused the statement of the prosecutrix (PW. 2). She has stated that when the accused Banwari had come to our house, her younger brothers and sisters were with her and mother and father had gone to attend a court date at Virat Nagar. Banwari informed that her father and mother had been locked up in the police station and they are to be released by calling her Bhua. It has been further stated that the name of Bhua is Gyarsi and she stays at Gaurd. The accused Banwari took her on a motorcycle and on the way two more persons accompanied them on motorcycles. They took her to the jungle where Banwari and one other person tied her hands and legs with ropes and took off her clothes. The accused Banwari and his companion raped her. Thereafter, a shepherd came there who took her to an old persons house. Thereafter her father and other persons brought her home. She narrated the incident to her mother. At the police station a Parcha Bayan (Ex. P.1) was recorded which bears her thumb impression. The prosecutrix identified Banwari and pointed out the accused Seduram in the court, as the persons who had raped her. She has also stated that the accused persons were requested not to rape her but they were not to listen her. 13. The prosecution witness Parmanand (PW.1) who is the father of the prosecutrix has stated that the age of her daughter is 13-14 years and she never went to School for studies. On the date of incident, he had gone alongwith his wife to Virat Nagar for attending a court date. 13. The prosecution witness Parmanand (PW.1) who is the father of the prosecutrix has stated that the age of her daughter is 13-14 years and she never went to School for studies. On the date of incident, he had gone alongwith his wife to Virat Nagar for attending a court date. He reached his house at 3-4 PM, when his children told him that the accused Banwarilal had come and took away the prosecutrix on a motorcycle on a pretext that she has to go to her Bhua. He had then phoned Kalu, the father of Banwari and told him that Banwari has taken the prosecutrix to her Bhua. He found Banwari at Kalu's house and during police interrogation Banwari stated that he had left the prosecutrix at Shyama Ki Dhani and there were two other persons. Parmanand alongwith other persons went to Shyama Ki Dhani where he found the prosecutrix at the house of Ramchandra Pyala. He had then taken her to his residence. The prosecutrix narrated the incident to her mother. His wife informed him that the prosecutrix was subjected to sexual intercourse and thereafter Parmanand took the proscutrix to the police station, where her Parcha Bayan (Ex.P.1) was recorded. 14. The prosecution witness Smt. Meera (PW.10), who is the mother of the prosecutrix, has stated that the prosecutrix is her eldest child and she is aged 14 years. On the date of incident, she had gone alongwith her husband to Virat Nagar for attending a court date. When they returned home the children told them that Banwari had taken the prosecutrix alongwith him on the pretext that her father had been sent to jail and her Bhua has to be called. So that her father could be released. They searched for the prosecutrix during the night and no the next morning. She was found at the house of Ramchandra Pyala. The prosecutrix told her mother that two persons had taken her to the jungle and raped her. Mother had then informed about the incident to her husband whereafter a report was lodged to the police station. 15. The prosecution witness Dr. Satish Chandra Agnihotri (PW.7) had on 29.9.2007 medically examined the accused Banwarilal and Seduram and his reports are (Ex.P.8) and (Ex. P.10) respectively. He had opined that it could not be said that Banwarilal and Seduram were impotent and they were competent to perform sexual intercourse. 15. The prosecution witness Dr. Satish Chandra Agnihotri (PW.7) had on 29.9.2007 medically examined the accused Banwarilal and Seduram and his reports are (Ex.P.8) and (Ex. P.10) respectively. He had opined that it could not be said that Banwarilal and Seduram were impotent and they were competent to perform sexual intercourse. 16. The prosecution witness Dr.Bhagwan Sahai (PW. 9) has stated that on 29.9.2007 he had medically examined the prosecutrix regarding her age and his report is (Ex. P.13). The X-rays of the prosecutrix showed that all Epiphysis around elbow joint had fused, Epiphysis of lower end of radius and ulna were not completely fused; upper end of ulna and Fibula were not completely fused and Epiphysis Iliac crest Ischeal Tuberosity has appeared but not fused. It has been further stated that after examining the X-ray report, his opinion was that the radiological age of the prosecutrix was above 16 years and below 18 years. 17. The prosecution witness Dr. Nirmala Sharma (PW.11) has stated that she had medically examined the prosecutrix on 27.9.2007 regarding rape and her report is (Ex. P.14). It has further stated that nothing was suggestive that the prosecutrix was a virgin and the opinion regarding rape was reserved as it would be given only after chemical examination. 18. In Ranjit Hazarika vs. State of Assam: (1998) 8 SCC 635 , the Hon'ble Supreme Court has held as under: "....Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is ever more reliable. The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is ever more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding..." 19. In State of Punjab vs. Gurmeet Singh (1996) 2 SCC 384 , the Hon'ble Apex Court has held as under:- "(A) rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murdered destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such case with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or in sufficient discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out and otherwise reliable prosecution case." 20. In State of Rajasthan vs. N.K. (2000) 5 SCC 30 , the Hon'ble Apex Court as held as under: 11. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probability just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, is the court of the facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. However, is the court of the facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Reference may be had to a long chain of decisions, some of which are Rameshwar, Sidheswar Ganguly, Madho Ram, State of Maharashtra vs. Chandraprakash Kewalchand Jain, Madan Gopal Kakkad, Narayan, Karnel Singh, Bodhisattwa Gautam and Gurmeet Singh. We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words: "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 21. In Visveswaran vs. State AIR 2003 SC 2479, the Hon'ble Apex Court has held as under:- "The approach required to be adopted by courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies, which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 22. Thus, the evidence of the prosecutrix (PW.2) is clear that the two appellants-accused Banwarilal and Seduram committed sexual intercourse on her without her consent and forcibly. This evidence of the prosecutrix is corroborated by the Parcha Bayan (Ex. P.1) which was recorded on the very next day without any delay, on the basis of which FIR (Ex. P.2) was registered at police station Manoharpur, District Jaipur. The name of Seduram has been specifically mentioned in the Parcha Bayan which the prosecutrix had come to know from the other accused. Further the accused Banwari and Seduram have been rightly identified by the prosecutrix in the court, as they had committed rape on her. 23. The accused Banwarilal, who was known to the prosecutrix earlier, had taken the prosecutrix on the pretext that her father and mother are in custody and they have got to be released. The prosecutrix has given a vivid account in her Parcha Bayan as well as in her statement, in the sequence of events leading to her ravishment. The prosecutrix "disinclination" to narrate the details of sexual exploitation to Payal Baba and other persons soon after the incident was quite natural and probable. She had been subjected to lengthy cross-examination but her statement regarding sexual assault by the accused Banwarilal and Seduram had remained unimpeached. Minor discrepancy or variation in evidence will not make the version of the prosecutrix doubtful. 24. It is also proved from the statement of Dr. Bhagwan Sahai (PW.9) that the age of the prosecutrix, at the time of incident, was below 18 years. The prosecutrix had rightly identified the accused in the court and the test identification parade for the accused Seduram was not required since Seduram was named in the first information report. Thus, the evidence of the prosecutrix inspires confidence, is reliable and trustworthy. 25. The prosecutrix had rightly identified the accused in the court and the test identification parade for the accused Seduram was not required since Seduram was named in the first information report. Thus, the evidence of the prosecutrix inspires confidence, is reliable and trustworthy. 25. The prosecutrix (PW.2) has deposed categorically that the appellants-accused Banwarilal and Seduram had sexual intercourse with her without her consent and forcibly. Section 114A of the Indian Evidence Act, 1872 clearly provides that in a prosecution for rape under clause (g) of sub-section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Since the prosecutrix (PW.2) has categorically said that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. In the present case, there is no defence evidence to rebut this presumption. 26. It is clearly established from the evidence brought on record that the accused Banwarilal had induced the prosecutrix to leave the house of her father Parmanand even without informing him and accompany him upon a false pretext of getting her father and mother released from the police station by calling her Bhua and also with an intent to force for sexual intercourse with the other accused Seduram. Dr. Nirmala Sharma (PW.11) has stated that no injury was found on the person of the prosecutrix. However, absence of visible injury in the facts and circumstances of the present case does not make the testimony of the prosecutrix doubtful. 27. The Case Law relied by the learned counsel for the appellants are not applicable in the facts and circumstances of the present case. In Krishan Kumar Malik vs. State of Haryana (supra), the evidence of the prosecutrix had several lacunae, her story was not corroborated by any other evidence and there were serious contradictions in her statements. 27. The Case Law relied by the learned counsel for the appellants are not applicable in the facts and circumstances of the present case. In Krishan Kumar Malik vs. State of Haryana (supra), the evidence of the prosecutrix had several lacunae, her story was not corroborated by any other evidence and there were serious contradictions in her statements. In Ramdas and Others vs. State of Maharashtra (supra) the prosecutrix tried to conceal facts from the court, deviated from the case narrated in the FIR and her explanation about inordinate delay in lodging the first information report was unsatisfactory. 28. Accordingly, in view of the above discussion, the ingredients of the offences punishable under Section 363, 366A, 376(2)(g) IPC are clearly made out against appellants-accused Banwarilal and Seduram, beyond reasonable doubt. 29. The learned counsel for the accused submitted that there is no evidence on record against the appellants-accused to prove the commission of any offence under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act. In this respect, we may observed that the prosecution has not led any evidence whatsoever to prove the commission of offence under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act. The mere fact that the prosecutrix happened to be a girl belonging to Scheduled Caste does not by itself attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to Nayak Community, there is no other evidence on record to prove that the offence under the said enactment was committed because of the fact that the prosecutrix is a member of the Scheduled Caste. The conviction of the appellants under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act 1989 must, therefore be set aside. 30. To sum up, none of the grounds raised against the legality and properity of the impugned conviction under Section 363, 366A, 376(2)(g) IPC has any merit or substance. A very natural and trustworthly version of the prosecutrix was, therefore, rightly accepted by learned trial court. The convictions in question accordingly deserve to be maintained, as well merited. 31. Consequently, the appeal filed by the appellants-accused Banwarilal and Seduram is partly allowed. The impugned judgment dated 26.7.2008 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur in Sessions case No. 79/2007 is modified. The appellants-accused are acquitted of the offences under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. 31. Consequently, the appeal filed by the appellants-accused Banwarilal and Seduram is partly allowed. The impugned judgment dated 26.7.2008 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur in Sessions case No. 79/2007 is modified. The appellants-accused are acquitted of the offences under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. The appellants-accused Banwarilal and Seduram are convicted for the offence under Section 363, 366A, 376(2)(g) IPC and the sentences imposed by the Trial Court, for these offences, on the appellants-accused are maintained. The appellants-accused shall serve the remaining sentence.