Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1574 (RAJ)

Ram Chandra v. State of Rajasthan

2017-07-14

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT : Mohammad Rafiq, J. 1. This appeal is directed against judgment dated 28.04.2012 passed by Additional Sessions Judge, Fast Track No. 2, Sikar Headquarter-Srimadhopur (for short 'the trial court') whereby accused-appellant Ram Chandra has been convicted for offences under Sections 363, 366A and 376 IPC and sentenced under Section 363 IPC to seven years' simple imprisonment and fine of Rs. 5,000/-, in default of payment thereof, he was to further undergo six months additional simple imprisonment; under Section 366A IPC, to ten years simple imprisonment and fine of Rs. 5,000/-, in default of payment thereof, to further undergo six months simple imprisonment and under Section 376 IPC, to life imprisonment with fine of Rs. 5,000/-, in default whereof, to further undergo six months simple imprisonment. All the sentences were ordered to run concurrently. 2. Facts of the case are that a written report (Exhibit P-2) was submitted by Bhagwati (P.W. 1) to SHO, Police Station Srimadhopur, District Sikar that she was a resident of Kanagatwali Tan Gram Kariri. Her father, mother, brother etc. were residing in Village Futala, Police Station Srimadhopur. About three months ago, her brother Ram Chandra, mother Soni Devi and father Tulsaram hatched up a conspiracy and pursuant to that, they asked her (informant) and her husband Kailash that since they have no child in the family, informant and her husband should allow their daughter Suman to stay with them. Believing them, they allowed Suman, who was aged 12 years of age, to stay with them. On 23.08.2011, when the informant came to her parents' house at Futala on the occasion of Rakhi, she did not find Suman there. Her brother Ram Chandra was also not found there. When she enquired from her parents, they informed that Suman had gone for playing with her friends. When Suman did not return for quite some time, she again enquired from them, they informed that they have sent Suman to school. When enquiry was made from the school, Suman could not be found there also. This created doubt in her mind. The informant then informed her in-laws upon which Nand Kishore, Jhabar, Jagdish etc. came to village Futala. All of them pressurized mother and father of the informant to disclose the correct fact about Suman. It was thereupon they were told that Ram Chandra had taken Suman to Chithwadi and did not tell anything more. This created doubt in her mind. The informant then informed her in-laws upon which Nand Kishore, Jhabar, Jagdish etc. came to village Futala. All of them pressurized mother and father of the informant to disclose the correct fact about Suman. It was thereupon they were told that Ram Chandra had taken Suman to Chithwadi and did not tell anything more. When they called Ram Chandra on his cell phone No. 9799084087, he did not firstly give any satisfactory answer but lastly said that he had taken Suman with him and now he had arranged her marriage with someone in lieu of Rs. 2,00,000/-. Then he switched off his cell phone. The informant and members of her in-laws family went to Chithwadi, but neither Ram Chandra nor Suman were traceable there. There they met informant's sister Anchi and her husband Sadhuram, who also threatened the informant of dire consequences and said that they had abducted Suman and sold her for Rs. 2,00,000/- and the informant was free to do whatever she wanted to do. Allegation in the written report was made that Ram Chandra, brother of informant, Soni Devi, mother of the informant, Tulsaram, father of the informant, Anchi Devi, sister of the informant and Sadhuram, husband of Anchi Devi hatched up a conspiracy and in pursuance thereof after abducting Suman, sold her for marriage. Therefore, action be taken against them. 3. On the basis of aforesaid written report, the police lodged FIR No. 284/2011 for offences under Sections 363, 366A and 120B IPC. After completion of investigation, the police submitted charge sheet against the accused-appellant before the Court of Additional Chief Judicial Magistrate No. 1, Srimadhopur. The case was committed to the Court of Sessions Judge, Sikar from where it was made over to the Court of Additional Sessions Judge (FT) No. 2, Sikar Headquarter, Srimadhopur. The trial court framed charges against the accused-appellant under Sections 363, 366A and 376 IPC, which he denied and claimed to be tried. In support of its case, the prosecution examined as many as 11 witnesses and exhibited 12 documents. Defence did not produce any witness or document. The accused-appellant in its examination under Section 313 Cr.P.C. denied allegations and stated that he was working as driver on a trolla of Shahpura, which he used to drive from Jamnagar to Ghaziabad. In support of its case, the prosecution examined as many as 11 witnesses and exhibited 12 documents. Defence did not produce any witness or document. The accused-appellant in its examination under Section 313 Cr.P.C. denied allegations and stated that he was working as driver on a trolla of Shahpura, which he used to drive from Jamnagar to Ghaziabad. On 15.08.2011, i.e. on the date of incident; he was on that route and not in the Village Futala. He had a dispute with uncle of his brother-in-law (gainer) Harphool since 2007. His brother-in-law had brokered the sale of their land and embezzled a sum of Rs. 11,00,000/- out of the sale proceeds and when the accused demanded said money, Harphool even subjected him to beating 2-3 times. Harphool happens to be uncle of father of Suman and present case was registered at his instance due to the enmity. Jhabar, another paternal uncle of Suman wanted to get Suman married with someone else, which was opposed by accused two months before the alleged incident. He too was instrumental in filing of this false case. The trial court, on conclusion of trial, vide judgment and order dated 28.04.2012 convicted and sentenced the accused-appellant in the manner indicated hereinabove. Hence, this appeal. 4. Mr. M.K. Kaushik, learned counsel for the appellant argued that allegation against the accused-appellant of the heinous crime of rape by him with his own minor niece is palpably false and has not been proved by any oral or medical evidence. The informant, Bhagwati (P.W. 1) herself has not supported allegations and was declared hostile. She has completely disowned not only the FIR but also her statement given to the police (Exhibit P-1) and stated that accused-appellant happens to be her brother and that members of her in-laws family subjected her (informant) to beating and pressurized her to make false statement against the accused-appellant. She lodged report under their pressure. She even went to Police Station Shahpura for lodging first information report against them on allegation of beating but police personnel threatened her. Thereafter, she went to police chowki at Amarsar for lodging FIR regarding beating. Learned counsel argued that this witness denied that her daughter ever told her that the accused-appellant, who happens to be her maternal uncle, had committed rape with her. Thereafter, she went to police chowki at Amarsar for lodging FIR regarding beating. Learned counsel argued that this witness denied that her daughter ever told her that the accused-appellant, who happens to be her maternal uncle, had committed rape with her. Suman was also beaten by members of her in-laws family and pressurized to make false allegation against accused-appellant. Phool Chand (Harphool), paternal uncle of her husband sold the land of her father (father of informant) for sale consideration of Rs. 18,00,000/- and embezzled the money. When her father demanded money, Phool Chand (Harphool) under conspiracy got a false rape case lodged against accused-appellant Ram Chandra. 5. Learned counsel argued that Suman (P.W. 2) prosecutrix had made false allegation under pressure of her father and other family members. In fact, she has stated that accused-appellant Ram Chandra took her to Radha Swami Bagh near Chomu in a vehicle and there her marriage was solemnized with one Sunil at his instance. She heard name of the place from the driver of the vehicle. Two brothers-in-law of Sunil and one of his brothers dropped her back to Futala. Police reached Futala on that day with her paternal uncle and recovered her from the house of Tulsaram at Futala. Learned counsel submitted that if the statement of the prosecutrix is read along with her statement under Section 164 Cr.P.C., whole game plan of in-laws of the informant, Bhagwati (P.W. 1) becomes clear. In her statement under Section 164 Cr.P.C., prosecutrix stated that accused-appellant Ram Chandra organized her marriage with a boy named Sunil resident of village Chithwadi in a clandestine manner. This information was not given to her parents and uncles and aunts. Ram Chandra stayed with the in-laws of the prosecutrix, i.e. in the house of Sunil. In exchange of that marriage, he also married Manju, resident of that village and thereafter, got her sisters-in-law i.e. sister of Sunil, Guddi married with his brother-in-law, whose name was Ashok. Ram Chandra left the prosecutrix in her in-laws house. Thereafter, members of her in-laws family dropped her at Ram Chandra's house at Futala. 6. Mr. M.K. Kaushik, learned counsel submitted that whole dispute was that in-laws of informant and father of the prosecutrix wanted to marry the prosecutrix elsewhere which was opposed by accused-appellant who then got her married with Sunil. Thereafter, members of her in-laws family dropped her at Ram Chandra's house at Futala. 6. Mr. M.K. Kaushik, learned counsel submitted that whole dispute was that in-laws of informant and father of the prosecutrix wanted to marry the prosecutrix elsewhere which was opposed by accused-appellant who then got her married with Sunil. Eventually, when the prosecutrix was recovered by in-laws of the informant, they again solemnized her marriage with one Hari, which would become evident from the statement of the prosecutrix in which she admitted that Hansa, her 'nanad' (sister-in-law) told her that name of her husband was Hari. Presently, she was not staying in the house of Hari at Leswa village and had come to the Court from her parents' house at Kanagat Ki Dhani. She went to Leswa only once. It is argued that FIR was registered on 26.08.2011 and medical examination of the prosecutrix took place on 27.08.2011 by Medical Board in S.K. Hospital, Sikar. 7. It is argued that Dr. Mahendra Singh Balara (P.W. 11) has stated that hymen of the prosecutrix was intact and her perineum were healthy. There was no other ailment in the body or any kind of complaint. He has proved medical examination report of the prosecutrix (Exhibit P-8). In the opinion of the Medical Board, she was not accustomed to sexual intercourse. However, the Board opined that report with regard to recent sexual intercourse would be given after receiving report of vaginal swab and slide, which were sealed and sent to Forensic Science Laboratory (FSL). Learned counsel argued that no such FSL report was ever received. Dr. Mahendra Singh Balara (P.W. 11), in cross-examination supported the case of the defence by stating that if any girl aged 11-12 years is subjected to forcible rape, then to sustain injury and bleeding is natural and sometimes if the girl of this age is subjected to forcible rape, the injury may be so serious that stitches would have to be applied. In the medical examination of the prosecutrix, there was no injury on her private parts and hymen was also intact. In the medical examination of the prosecutrix, there was no injury on her private parts and hymen was also intact. Learned counsel for the appellant argued that in the ordinary case of rape, statement of prosecutrix is entitled to weightage but in the facts of the case, it is quite clear that the dispute was not only with regard to money but other dispute is that family members of the prosecutrix namely the father and uncles wanted to marry her with someone else, which was opposed by the accused-appellant. Thereupon, when the accused-appellant organized her marriage with Sunil in a clandestine manner, this was not taken kindly by the complainant party who registered a false case of heinous allegation against the appellant of committing rape with her own niece. 8. Learned counsel submitted that Jhabar, son of Gopiram (P.W. 3), paternal uncle of the prosecutrix; Nanda Ram @ Nand Kishore (P.W. 4), Kailash (P.W. 5) father of the prosecutrix and Nanchi Devi (P.W. 8), mother-in-law of the prosecutrix, i.e. mother of Hari, with whom second marriage of the prosecutrix was solemnized are not reliable witnesses. Nanchi Devi (P.W. 8) stated that Suman was staying in her parents' house whereas Jhabar, son of Gopiram (P.W. 3) stated that Suman stayed in her in-laws house for three months. Jhabar, son of Maliram (P.W. 10) is brother-in-law of Jhabar son of Gopiram (P.W. 3), in other words, Jhabar son of Gopiram, who is paternal uncle of the prosecutrix, is married to sister of Jhabar son of Maliram, who in turn is married to sister of Hari and daughter of Nanchi Devi (P.W. 8). This explains why Jhabar wanted to get prosecutrix Suman married with Hari. Learned counsel submitted that to contract marriage inter-se between the families is common and customary amongst the parties, where already relations in different forms are pre-existing. It is also argued that not only informant in the written report itself admitted but other witnesses have also admitted that Suman came to stay with mother of the appellant, who happens to be her grandmother, being mother of her own mother. Therefore, there is no truth in the allegation that the accused-appellant would abduct his own niece. It is, therefore, prayed that the appeal be allowed and the accused-appellant be acquitted of the charges framed against him. 9. Ms. Therefore, there is no truth in the allegation that the accused-appellant would abduct his own niece. It is, therefore, prayed that the appeal be allowed and the accused-appellant be acquitted of the charges framed against him. 9. Ms. Sonia Shandilya, learned Public Prosecutor opposed the appeal and supported the judgment of the trial court. She argued that in view of the statement of prosecutrix, Suman (P.W. 2) in which she has remained consistent with the allegation made in the previous statement recorded under Section 164 Cr.P.C., the accused-appellant has rightly been convicted for the alleged offences. Mere fact that Dr. Mahendra Singh Balara (P.W. 11) while proving the Exhibit P-8 stated that the prosecutrix was not accustomed to sexual intercourse and that her hymen was intact and perineum were healthy and there were no injuries on her vagina or any other private part of the body, would not lead to inference of the innocence of the accused-appellant. Learned Public Prosecutor referred to various statements of prosecution witnesses as also the exhibits. It is, therefore, prayed that the appeal be dismissed. 10. Having heard learned counsel for the appellant as also learned Public Prosecutor and perused the statement of the prosecution witnesses and other material on record especially statement of the medical officer, Dr. Mahendra Singh Balara (P.W. 11), medical examination report of the prosecutrix Suman (Exhibit P-8), we are inclined to hold that the prosecution has not been able to prove the charges of the alleged offence against the accused-appellant beyond reasonable doubt. Although it is true that in a case of this nature where allegation of such heinous offence is made against uncle of the prosecutrix/victim, the court has, while evaluating the evidence, to give due weightage to the testimony of the victim and see that culprit is brought to the books. But at the same time, the court has to be also cautious of the fact that a person, who is innocent, may not be allowed to become victim of the conspiracy hatched against him which we smell in the present case while examining entire evidence of the case in totality, which we shall discuss hereinafter. 11. But at the same time, the court has to be also cautious of the fact that a person, who is innocent, may not be allowed to become victim of the conspiracy hatched against him which we smell in the present case while examining entire evidence of the case in totality, which we shall discuss hereinafter. 11. In the present case informant, Bhagwati (P.W. 1), mother of the prosecutrix has completely disowned not only the written report submitted by her, but also the statement she gave to the police under Section 161 Cr.P.C. She stated that her in-laws subjected her to beating and pressurized her for lodging false FIR against the accused-appellant and that too, on allegation of rape with his minor niece. It has been alleged by her that she went to Police Station Shahpura and thereafter to Police Chowki, Amarsar, for lodging report against her in laws on allegation of beating. She denied that her daughter ever told her that accused-appellant committed rape upon her. She admitted that her in-laws quarreled with her and pressurized her to make said false allegation against the appellant. She has made further allegation which the accused-appellant repeated in his defence during examination under Section 313 Cr.P.C. that Phool Chand (Harphool) who happens to be husband of elder sister of both informant and accused-appellant and uncle of the informant's husband brokered the sale of land of appellant's father. She alleged that Phool Chand (Harphool) embezzled a sum of Rs. 18,00,000/- out of sale proceeds of that land and when this money was demanded from him, he has involved the appellant in the false case. Accused-appellant in his examination under Section 313 Cr.P.C. has also made similar allegation by stating that Harphool (Phool Chand) was married to her elder sister and he embezzled a sum of Rs. 11,00,000/- out of the sale proceeds. When the appellant demanded the aforesaid money, Harphool (Phool Chand) subjected him to beating 2-3 times. He has also set up a defence that Harphool (Phool Chand) is uncle of father of Suman and also her maternal uncle and present criminal case has been registered due to said enmity. He has also stated that father of the prosecutrix wanted to get Suman married elsewhere which was opposed by him two months before the alleged incident and owing to this, present false criminal case has been registered. 12. He has also stated that father of the prosecutrix wanted to get Suman married elsewhere which was opposed by him two months before the alleged incident and owing to this, present false criminal case has been registered. 12. What appears from the evidence on record is that when Suman started staying with her maternal grandmother, accused-appellant in a clandestine manner got her married with one Sunil of village Chithwadi as he was opposed to her marriage with Hari, younger brother of Jhabar's brother-in-law (looser). Thereafter, appellant himself married with one Manju, a resident of that village. Allegation of the prosecutrix in her statement under Section 164 Cr.P.C. was that thereafter, he arranged marriage of Guddi, sister of Sunil with his own brother-in-law Ashok. Be that as it may, when information of secret marriage of Suman with Sunil was divulged upon members of complainant party, present criminal case was registered against the accused-appellant. Thereafter, when the prosecutrix was recovered on 26.08.2011, on the same day, Jhabar, younger brother of her father got, her married with Hari, who happens to be younger brother of another Jhabar son of Maliram and brother-in-law of Jhabar (P.W. 3). It is in this context that we have to view medical examination report of the prosecutrix conducted by Medical Board in S.K. Hospital, Sikar, which gave following opinion vide Exhibit P-8 : "In our opinion, she is not accustomed to sexual intercourse. However, recent act of sexual intercourse, report will be given after receiving report of vaginal swab and slide from FSL which are sealed and handed over to police for FSL." 13. Aforesaid report has been proved by Dr. Mahendra Singh Balara (P.W. 11), who has stated that hymen of the prosecutrix was intact and her perineum were healthy. There was no other ailment in the body or any kind of complaint. Dr. Mahendra Singh Balara (P.W. 11), in cross-examination supported the case of the defence by stating that if any girl aged 11-12 years is subjected to forcible rape, then to sustain injury and bleeding is natural and sometimes if girl of this age is subjected to forcible rape, the injury may be so serious that stitches would have to be applied. In the examination of the prosecutrix, there was no injury on her private parts and hymen was also intact. In the examination of the prosecutrix, there was no injury on her private parts and hymen was also intact. Such medical examination report of Suman when viewed in the light of all the attaining circumstances, makes the statement of informant Bhagwati (P.W. 1) more inspiring, trustworthy and reliable than that of Suman (P.W. 2) and makes us believe that a conspiracy was indeed hatched up by the complainant party in falsely embroiling the accused appellant in this criminal case. 14. In view of above discussion, present appeal deserves to succeed and is allowed. Impugned judgment dated 28.04.2012 passed by the trial court is set aside. The accused-appellant is acquitted of the charges under Section 363, 366A and 376 IPC. He is in jail and be set at liberty forthwith if not required to be detained in any other case. 15. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Ram Chandra is directed to forthwith furnish a personal 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, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.