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2016 DIGILAW 1532 (RAJ)

Madan Lal S/o Shri Sita Ram v. State of Rajasthan

2016-10-21

VIJAY KUMAR VYAS

body2016
JUDGMENT : 1. This criminal appeal has arisen out of judgment dated 18.7.1995 passed by learned Additional Sessions Judge, Jhalawar, in Sessions Case No.139/1994, whereby appellant has been convicted and sentenced as follows : u/s 447 IPC Two months' Rigorous Imprisonment with fine of Rs.500/-; in default of payment thereof, to further undergo one month's Rigorous Imprisonment. U/s 376/511 IPC Three years' Rigorous Imprisonment with fine of Rs.500/-, in default of payment thereof, to further undergo one month's Rigorous Imprisonment. All the sentences were ordered to run concurrently. 2. Brief facts giving rise to the appeal are that on 28.3.1993 prosecutrix Nandu Bai Meghwal (PW-4) submitted a complaint (Ex.P-5) against appellant Madan Lal before learned Additional Munsif and Judicial Magistrate Jhalawar alleging inter alia that on 21.8.1993 at about 4.00 PM, she had gone to agricultural field along with her father-in-law, Narayan and brother-in-law, Bhagwan. Narayan and Bhagwan were sitting near the well situated in the field, whereas complainant went into the field, having crop of Maize of height about 6-7 foot, to pluck Chawla legumes grown within the field. When she was plucking the legumes, appellant Madan Lal came there suddenly, caught and laid her down, torn her blouse and started pressing the breast. He lifted her Ghagra (petticoat) to commit rape. He put off his shirt and tried to rape. Complainant started crying loudly, whereupon Kalu Singh, Bhagwan and Narayan came there. On seeing them, appellant fled away leaving his shirt behind. She told the whole incident to Narayan and Bhagwan. Her husband was out of village on that day. In the evening, the appellant came to her house and threatened her and her family members that if they reported to police, he would kill them and raze the quarter situated near well. On receiving the complaint (Ex.P-5), under Section 156(3) Cr.P.C SHO, Police Station Jhalrapatan registered a formal FIR No.210/1993. During investigation, blouse of proscutrix and shirt of appellant were seized. Appellant was arrested and subjected to the medical examination for potency. Revenue record of the agricultural field was obtained. After due investigation, charge-sheet was filed before learned Additional Munsif and Judicial Magistrate, Jhalawar. 3. On commitment, learned trial court framed charges for offences u/s 447, 506 and 376/511 IPC. The accused appellant denied the charges and claimed for trial. Prosecution examined 11 witnesses and exhibited 12 documents. Revenue record of the agricultural field was obtained. After due investigation, charge-sheet was filed before learned Additional Munsif and Judicial Magistrate, Jhalawar. 3. On commitment, learned trial court framed charges for offences u/s 447, 506 and 376/511 IPC. The accused appellant denied the charges and claimed for trial. Prosecution examined 11 witnesses and exhibited 12 documents. Statement of accused was recorded u/s 313 Cr.P.C. He stated the evidence adduced by prosecution to be wrong and false. No evidence was adduced on behalf of defence. After hearing both the parties, learned trial court vide judgment impugned acquitted the accused appellant from charge for offence u/s 506 IPC and convicted for the offences u/s 447 and 376/511 IPC and sentenced as stated hereinabove. 4. Learned counsel for the appellant submits that the incident is alleged to be of 21.8.1993, whereas the complaint was filed before area Magistrate on 23.8.1993 which, in turn, was registered as First Information Report by Police on 26.8.1993. Prosecution has failed to explain sufficiently the delay in reporting the matter to the authorities. 5. Learned counsel further submits that as per prosecution story, crop of maize of the height 6-7 foot was standing in the field and the prosecutrix was forceably caught hold of and laid down on the earth by the appellant. It is very strange that neither the prosecutrix was injured nor the standing crop was damaged, in any manner. The prosecutrix was not sent for examination by the medical officer to ascertain physical assault on her body. 6. Torn blouse of the prosecutrix and shirt left by the appellant on the spot, are alleged to be seized by police but none of these articles were exhibited before the court during trial. Contrary to the complaint (Ex.P-5), Nandu Bai (PW-4) has stated before the court at the end of her examination-in-chief that her blouse was not torn. 7. Learned counsel further submits that eye witnesses Narayan (PW-3) and Bhagwan Lal (PW-7) are relatives of the prosecutrix. But one of them - Narayan has turned hostile. Bhagwan (PW-7) deposed when he reached at the incident, Madan Lal was fleeing away. So far as Kalu Singh (PW-5) is concerned, he has also turned hostile. Bala Ram (PW-8) is also alleged to be an eye witness but he also turned hostile and says nothing about the incident. 8. But one of them - Narayan has turned hostile. Bhagwan (PW-7) deposed when he reached at the incident, Madan Lal was fleeing away. So far as Kalu Singh (PW-5) is concerned, he has also turned hostile. Bala Ram (PW-8) is also alleged to be an eye witness but he also turned hostile and says nothing about the incident. 8. There are many contradictions in the evidence rendered by the witnesses before the trial court. Similarly, there are improvements and omissions in the statements given before court from the earlier statements of the witnesses recorded u/s 161 Cr.P.C. 9. Learned counsel further submits that when there is no corroboration of solitary ocular testimony of Nandu Bai (PW-4) and her statement is also not only contradictory from other witnesses but are also un-natural. Even circumstances available on the spot are not supporting her version. The appellant cannot be held guilty for the offences charged with on such uncorroborated statement of the prosecutrix. 10. Per contra, learned Public Prosecutor submits that the incident took place in the field where crop of maize of the height of 6-7 foot was standing, there was no occasion for others to see the incident. The witnesses Narayan ((PW- 3) and Bhagwan (PW-7) have stated that on hearing the cry of Nandu Bai, they reached and saw the appellant running away. There are no contradictions in statements of these witnesses. 11. Nandu Bai (PW-4) stated before the court that the delay caused in lodging FIR was because of the talks going on for arriving at a compromise. The delay in lodging FIR cannot be construed as fatal for prosecution. Since the FIR was lodged after about 5 days, there was no use of medical examination of the prosecutrix. 12. Learned Public Prosecutor further submits that there is absence of prior enmity between the parties, the story of prosecution, supported by the evidence has rightly been believed to be proved by learned trial court and any indulgence therein by this court is not called for. 13. I have given thoughtful consideration to the rival submissions and perused the material available on record. 14. It is undisputed that the incident is alleged to be of 21.8.1993, complaint of the incident was first of all submitted before the area Magistrate on 23.8.1993 and formal FIR was registered on 26.8.1993. 13. I have given thoughtful consideration to the rival submissions and perused the material available on record. 14. It is undisputed that the incident is alleged to be of 21.8.1993, complaint of the incident was first of all submitted before the area Magistrate on 23.8.1993 and formal FIR was registered on 26.8.1993. It is also undisputed that the prosecutrix was not subjected to any medical examination to substantiate sexual assault on her. On the basis of statement of Investigating Officer - Ram Singh (PW- 11) and site inspection memo (Ex.P-7), it is also undisputed that there was no circumstantial evidence available at the place of occurrence, corroborating the incident. Crop of maize of the height of 6-7 foot at the place of occurrence was found intact and undamaged. 15. As per complaint (Ex.P-5), the cause of delay in lodging FIR was threat given by the appellant, whereas during trial, Nandu Bai (PW-4) has attributed the same to the talks being held for arriving at a compromise. She further states that he denied to compromise and threatened them to stab with knife. In cross examination, she states that talks of compromise continued for three days and during that period accused razed their quarter situated near well in the agricultural field. Only thereupon, they reported the matter. 16. Narayan (PW-3) is a person who reached first of all to the place of incident, stated that on seeing him, Madan Lal fled away from there. He deposed about the incident as narrated by the prosecutrix to him. Kalu Singh (PW-5) has stated that when he was passing through near the place of incident, he did not hear anything. Some people were gathered there and were saying that Madan Lal transgressed. Even after being declared hostile, the witness does not state anything more in cross examination. Bhagwan Lal (PW-7) has given similar statement to that of Narayan (PW-3). Bala Ram (PW-8) has turned completely hostile and say not a word about the incident. 17. It is well settled principle of law that proof in quantity is not required, rather proof of quality is necessary to establish a fact. As per settled principle of law, credible solitary testimony of prosecutrix in the matters of sexual assaults may also be sufficient for conviction. But for this, the evidence of prosecutrix should be sterling worth and credible. It is well settled principle of law that proof in quantity is not required, rather proof of quality is necessary to establish a fact. As per settled principle of law, credible solitary testimony of prosecutrix in the matters of sexual assaults may also be sufficient for conviction. But for this, the evidence of prosecutrix should be sterling worth and credible. In the instant matter, the way in which the assault has been alleged to be made, damage to the standing crops in the field, seems natural. The resistance alleged to be offered by the prosecutrix should have resulted in some physical injuries on the body of prosecutrix. Absence of all these natural happenings, makes the prosecution story doubtful. The delay in lodging FIR further fortifies the suspicion on veracity of the prosecution story. 18. In view of above, finding of conviction recorded by learned trial court is not found sustainable and the appeal appears to be full of force. 19. In the result, the appeal is allowed. The judgment dated 18.7.1995 of learned trial court about conviction and sentence passed against the appellant is set aside. The appellant stands acquitted of all the charges levelled against him. 20. Keeping in view, however, the provisions of section 437-A of the Code of Criminal Procedure, accused appellant Madan Lal S/o Shri Sita Ram is directed to forthwith furnish a person bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.