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2017 DIGILAW 1413 (RAJ)

Rajveer Singh v. State of Rajasthan

2017-06-05

M.N.BHANDARI

body2017
JUDGMENT : M.N. Bhandari, J. By this appeal a challenge is made to the judgment dated 03.11.1990 passed by the Additional District & Sessions Judge, Dholpur in Session Case No.53/89, by which the appellant was convicted for offence under Sections 457 and 376 IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs. 200/-, in default of payment of fine to further undergo two months rigorous imprisonment for offence under Section 376 IPC, and sentenced to undergo two years rigorous imprisonment with a fine of Rs. 200/-, in default of payment of fine to further undergo two months rigorous imprisonment for offence under Section 457 IPC. Both the sentences were ordered to run concurrently. 2. Learned counsel for the appellant submits that false allegations of commission of offence under Sections 457 and 376 IPC have been levelled against the appellant. It was out of the revenge. The accused and the prosecutrix's husband were working in the mines and were having rivalry with each other. It is only to settle the aforesaid that a story was concocted about commission of offence. It was stated that the accused-appellant entered in the house of the prosecutrix and committed the offence by pointing a 12 bore katta on her breast. The statements of the witnesses were recorded, however no corroborative evidence exist. No independent witness was examined to support the allegation. The medical report is also not supporting the incidence. No injury on the private or other part of the body of the prosecutrix was found. The prosecutrix was habitual of intercourse. In the manner the incident has been narrated, cannot repose confidence. The charge has not been proved beyond doubt, yet the Court below recorded conviction based on probabilities, whereas the charge has to be proved beyond reasonable doubt. 3. Learned counsel for the appellant has made reference of the statements of the witnesses to show that either they have denied the incidence or otherwise their evidence is based on hearsay statement. It has come that the allegations were levelled out of rivalry between the accused and the prosecutrix's husband. PW7 Harpyari, prosecutrix has supported the incidence, which is not supported by corroborative evidence, thus should not have been relied upon by the Court below. The accused-appellant should have been acquitted of the offence. It has come that the allegations were levelled out of rivalry between the accused and the prosecutrix's husband. PW7 Harpyari, prosecutrix has supported the incidence, which is not supported by corroborative evidence, thus should not have been relied upon by the Court below. The accused-appellant should have been acquitted of the offence. The prayer is accordingly made to allow the appeal and set aside the impugned judgment of conviction and sentence of the accused-appellant for offence under Section 457 and 376 IPC. 4. Per contra, learned Public Prosecutor has opposed the arguments and supported the impugned order. The reference of the witnesses produced by the prosecution has been given to show proof of the offence beyond doubt. The prosecutrix Harpyari supported the allegations and other witnesses have made the statements to corroborate it. In view of the above, interference in the impugned order may not be made. The injuries on the private or other part of the body of the prosecutrix do not exist due to use of katta for commission of offence. The prayer is accordingly made to dismiss the appeal preferred by the accused-appellant, whose sentence was otherwise suspended during pendency of the appeal. 5. I have considered the rival submissions of the parties and perused the record. 6. On 22.01.1988, a written report was submitted by the prosecutrix at Police Station Bari, District Dholpur for offence under Sections 376 and 457 IPC committed in the night 20/21.01.1988. It was alleged that while the prosecutrix was sleeping in her house, then at about 11.00 PM, the accused entered in the house after opening the door. He pointed a 12 bore katta on her and committed the offence. On the basis of the written report, the police registered the FIR and started investigation. After investigation, charge-sheet was filed against the petitioner. The Court below framed charges for offence under Sections 457 and 376 IPC against the accused-appellant. It was denied and he claimed to be tried. In support of the case, prosecution examined as many as 13 witnesses and exhibited several documents. After completion of the trial, the Court below convicted and sentenced the accused-appellant in the manner indicated herein above. 7. PW7 Harpyari, the prosecutrix, supported the allegations made by her. It was stated that the accused-appellant entered in her house and committed the offence against her wishes after pointing a 12 bore gun on her. After completion of the trial, the Court below convicted and sentenced the accused-appellant in the manner indicated herein above. 7. PW7 Harpyari, the prosecutrix, supported the allegations made by her. It was stated that the accused-appellant entered in her house and committed the offence against her wishes after pointing a 12 bore gun on her. He then ran away after commission of the offence. She informed her mother-in-law about the incident. It was however admitted that her husband was also working in the mines and on the day of incidence, he was not available in the house. It was also admitted that she was living separately from her in-laws. She also admitted that one child was sleeping with her on the cot. On the other cot her two children were sleeping. 8. PW9 Kanchania has stated about the incidence, as narrated by the prosecutrix. PW10 Mooli did not support the prosecution case and also did not endorse his police statement Exhibit P11. PW12 Ram Khiladi is the husband of the prosecutrix. He made statement, as was narrated by his wife. It was also admitted that he was working in the mines. PW13 Shiv Devi also made hearsay statement, as narrated to her by the prosecutrix, however she was not knowing about the rivalry between the two. 9. PW5 Dr. Beena Goyal had examined the prosecutrix. She did not report any injury on the private or any part of the body of the prosecutrix. No semen was found. Thus, she did not give report about the commission of rape. 10. PW8 Kaptan also did not support the prosecution case and even denied the statement recorded as Exhibit P10. Other witnesses are of the prosecution itself. PW1 Mukesh Kumar, PW2 Nihal Singh, PW8 Kaptan and PW10 Mooli thus did not support the prosecution case, rather they were declared hostile. The Court below found it to be a case of circumstantial evidence and convicted the accused-appellant even after finding the medical report to be not corroborating the incidence. It was observed that the injury may not have been received due to use of gun for commission of offence. I however find that the evidence does not exist to support the allegation beyond doubt. The 12 bore katta has not been recovered which is said to have been used at the time of commission of offence. It was observed that the injury may not have been received due to use of gun for commission of offence. I however find that the evidence does not exist to support the allegation beyond doubt. The 12 bore katta has not been recovered which is said to have been used at the time of commission of offence. In view of the above, the medical report gets relevance. It does not support the allegation as no injury on private or other part of the body of the prosecutrix was found. Even semen was not found at the time of medical examination of the prosecutrix, as per the statement of PW5 Dr. Beena Goyal. It is also a fact that while the offence is said to have committed, the prosecutrix's child was also sleeping with her on the cot yet he could not know about the incidence. Rivalry between the accused and the prosecutrix's husband has also come on record. 11. In view of the above, other than the statement of the prosecutrix PW7, no corroborative evidence exists because all other witnesses have made the statements about the incidence, as was narrated to them by the prosecutrix herself. The independent witnesses have been declared hostile and thus they did not support the prosecution case. Delay in lodging of the FIR was also material, but it has been ignored by the Court below while convicting the accused-appellant. 12. Taking into consideration the aforesaid, this Court is of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the impugned judgment of conviction and sentence deserves to be quashed and set aside and the accused-appellant deserves to be acquitted of the charges levelled against him. 13. In view of the discussion made above, the appeal is allowed. The impugned judgment dated 03.11.1990 passed by the Court below is set aside. The accused-appellant is on bail. His bail bonds are discharged. 14. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- with one surety in the like amount before the Court below. The accused-appellant is on bail. His bail bonds are discharged. 14. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- with one surety in the like amount before the Court below. The bonds so furnished shall be effective for a period of six months and shall contain an undertaking that in the event of filing of a Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Apex Court.