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2016 DIGILAW 632 (RAJ)

Ghisu Singh v. State of Rajasthan

2016-05-05

PANKAJ BHANDARI

body2016
JUDGMENT : Pankaj Bhandari, J. The appellant has preferred this appeal aggrieved by the impugned judgment and order dated 19.12.1989 passed by the learned Additional Sessions Juge, Nagaur, whereby the appellant has been convicted under Section 376 read with Section 511 IPC. 2. Briefly stated the facts of the case are that an FIR was lodged on 03.07.1987 at around 08:40 a.m. alleging therein that on 02.07.1987, Kamla went to the farm and from the farm, she went to the Bagichi for bringing water. When she was returning with the water pitcher, the present appellant Ghisu Singh stopped her and tried to commit rape upon her. Kamla raised alarm, on which the nearby farm owners came running and the appellant ran away from the place of incident. The appellant was arrested on 03.07.1987. 3. After due investigation, the police filed charge-sheet against the appellant. The learned trial court framed charges against the appellant under Section 376 read with Section 511 IPC. The accused appellant denied the charges, upon which the prosecution examined PW-1 Kamla, PW-2 Umi, PW-3 Sohani, PW-4 Sawta Ram, PW-5 Berisal Singh, PW-6 Mal Singh, PW-7 Nanu Singh, PW-8 Sukharam, PW-9 Boduram, PW-10 Mangeram, PW-11 Dr. Pradeep Parakh, PW-12 Bhanwara Ram and PW-13 Kuljeet Singh. The statement of the accused appellant were recorded under Section 313 Cr.P.C. The statements of DW-1 Shivbux Singh, DW-2 Indra Singh and DW-3 Sawaidan were recorded in defence by the accused-appellant. The learned court below vide the impugned judgment, convicted the accused-appellant under Section 376 read with Section 511 IPC and sentenced the appellant for two years imprisonment and fine of Rs. 500/- and on non-payment of fine, the appellant was to further undergo imprisonment for three months. Aggrieved by which the present appeal has been preferred by the appellant. 4. Counsel for the appellant has vehemently opposed the impugned judgment passed by the learned trial court. His main contention is that there are serious lacunae in the prosecution version. Kamla, the prosecutrix, is stated to be carrying water pitcher when she was returning from Bagichi towards her farm and on the farm of the accused, she was pulled down and the accused tried to commit rape with her. His main contention is that there are serious lacunae in the prosecution version. Kamla, the prosecutrix, is stated to be carrying water pitcher when she was returning from Bagichi towards her farm and on the farm of the accused, she was pulled down and the accused tried to commit rape with her. It is argued that since Kamla was carrying water filled pitcher, if the accused pulled her down, the pitcher should have broken and its remains should have been recovered by the investigating officer on the next day when he visited the site. But no mention whatsoever has been made relating to the water pitcher in Ex.P-1. It is also argued that the dispute arose as prosecutrix was trespassing through appellant's farm and when appellant objected, a dispute took place. It is argued that the prosecutrix did not have a right to move through the farm of the appellant, as during rainy season the appellant had grown crops and the learned court below has erred in coming to the conclusion that Kamla being a female, had a right to pass through the farm of the present appellant. 5. Learned Public Prosecutor, on the other hand, has drawn my attention towards Ex.P-1 and Ex.P-2. His contention is that when the scuffle took place, the glass bangles of the prosecutrix broke and they were recovered from the site by the investigating officer. The fact that there were no injuries on the body of the prosecutrix is explained by the learned Public Prosecutor with the plea that during rainy season when the fields are soft, on falling down on the field, no visible injuries occur. It is also argued that as per custom, people have a right to move through the farm of other persons. The accused has committed the offence. Therefore, his prayer is that the impugned judgment be upheld. 6. I have given my thoughtful consideration to the rival contentions of the parties and have also perused the statements of the witnesses. 7. PW-1 Kamla is the star witness in this case, with whom the incident is stated to have taken place. In her examination-in-chief, she has stated that at around 12 o'clock in the afternoon, she went to the Bagichi to bring water. 7. PW-1 Kamla is the star witness in this case, with whom the incident is stated to have taken place. In her examination-in-chief, she has stated that at around 12 o'clock in the afternoon, she went to the Bagichi to bring water. She was carrying earthen water pitcher in her arm and when she was returning with water pitcher, on seeing her, the accused came running, caught hold of her neck and by crossing his legs into her legs, pulled her down. She has further stated that the accused opened his pant and underwear and tried to remove her lehanga, on which she resisted and pushed the accused. Relating to the pitcher, she stated that the pitcher did not break, but there was a crack in the pitcher. She raised alarm, on which her family members came running and the appellant ran away from the place. This witness has admitted that she did not receive any injuries. In cross-examination, this witness has admitted that there is a different way also available for going to the Bagichi and that way does not pass through the farm of Umaid Singh, who happens to be the father of Ghisu Singh, the present appellant. In cross-examination, she has stated that when the accused pulled her down, the pitcher also fell down, but she did not receive any injury. She has further stated that she is not aware whether the accused put the pitcher down. In cross-examination, she has stated that when Ghisu Singh came towards her, he was not wearing pant. He had already opened the pant and when he came towards her, he was only wearing underwear. This witness has resiled from the statement recorded under Section 161 Cr.P.C. Ex.D-1 and has stated that portion A to B ^^?khlw iSaV igus gq, Fkk vkSj eq>s fups iVd dj mij cSBk** was not stated by her to the police. 8. The contention of the appellant that the story as narrated by the prosecutrix Kamla does not inspire confidence, has force, since if Kamla was carrying a water filled earthen pitcher, and was suddenly pulled down by the accused-appellant, the pitcher ought to have broken by the fall and since Kamla states that the pitcher fell down with her, it cannot be believed that the earthen pitcher filled with water only had a crack and had not broken. The investigating officer PW-10 has not been able to explain the whereabouts of the pitcher. He has, in his cross-examination, admitted that no pitcher was available at the place of occurrence and he has not seen any pitcher. 9. The learned trial court was moved with the fact that everyone, and more particularly, a female has a right to pass through the farm of any other person for carrying water, and that, this is a regular practise. Counsel for the appellant has stated that when the fields are barren then no one objects to the villagers going through the farms, but when the fields are soft and crop is growing, people do not permit others to pass through their farms. The contention is that occurrence took place because Kamla tried to pass through the farm where Bajra was growing and when the present appellant objected he slapped him and the appellant, in retaliation, slapped her. This defence cannot be considered as groundless or a cropped up defence. 10. There is no evidence whatsoever that the farm of the appellant was having a boundary wall and was not visible from the adjoining farms. The contention that at 12 o' clock in the afternoon, the appellant tried to commit the offence of rape with the prosecutrix, does not inspire confidence, moreover, when the prosecution story itself creates doubt, the accused is entitled to the benefit of doubt. It is an admitted position that the prosecutrix was passing through the farm of the appellant and an incident took place, but the incident could not be termed to be one which falls under the provisions of Section 376/511 IPC, and at the most, on objection by the appellant, the scuffle took place between the prosecutrix and the appellant, which has been aggravated and made an offence under Section 376/511 IPC. It is also to be noted that PW-4 Sawta Ram, PW-5 Berisal Singh, PW-7 Nanu Singh and PW-9 Boduram have been declared hostile by the prosecution. All these witnesses have stated that the dispute arose between the prosecutrix and the appellant. None of these witnesses have stated about the appellant attempting to commit rape with the prosecutrix. 11. In totality, the story of the prosecution does not inspire confidence, and thus, the appellant is entitled to benefit of doubt. 12. Consequently, the present appeal is allowed. All these witnesses have stated that the dispute arose between the prosecutrix and the appellant. None of these witnesses have stated about the appellant attempting to commit rape with the prosecutrix. 11. In totality, the story of the prosecution does not inspire confidence, and thus, the appellant is entitled to benefit of doubt. 12. Consequently, the present appeal is allowed. The impugned judgment and sentence passed by the learned Additional Sessions Judge, Nagaur is quashed and set aside. The present accused-appellant is acquitted of the charges under Section 376/511 IPC levelled against him. The bail bonds of the accused-appellant stand discharged.