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2019 DIGILAW 2298 (RAJ)

Jal Singh v. State of Rajasthan

2019-08-27

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Appellant has filed this appeal challenging the judgment/order dated 09.07.2015 passed by the trial Court, whereby, appellant was convicted and sentenced qua offence punishable under Sections 376(2)(F) and 302 of Indian Penal Code, 1860 (hereinafter referred as 'IPC) and Sections 3(1)(XII), 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as the 'Act'). 2. Prosecution case was set in motion on the basis of the report lodged by complainant Hemraj. As per the report Exhibit P-1, complainant had reported that on 15.12.2012 at about 8.00-9.00 p.m., his daughter Priyanka aged about 11 years had gone with Mohan and Sonam, who were children of his brother Kamal Kishore to attend the fair. However, Priyanka did not return home till the next morning. Then, he alongwith his family members tried to trace his daughter but could not do so and at about 9.00 a.m. they found the dead body of his daughter in the fields of Mahesh Sharma on 16.12.2012. His daughter had been raped and murdered by some person. On the basis of the said report lodged by the complainant at about 12.30 p.m., formal FIR No. 46 was registered on 16.12.2014 at about 1.20 p.m. at police Station Lagra, District Karauli under Sections 376 and 302 IPC. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charges were framed against the appellant under Sections 376(2)(F) and 302 IPC and Sections 3(1)(XII), 3(2)(V) of the Act. Appellant did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined twenty-four witnesses during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') prayed that he was innocent and had been falsely involved in this case. Appellant examined one witness in his defence. 6. Trial Court vide judgment/order dated 09.07.2015 ordered the conviction of the appellant with regard to charges framed against him. Hence, the present appeal by the appellant. 7. Learned counsel for the appellant has submitted that as per the prosecution witnesses PW-5 Mohan and PW-6 Sonam, Priyanka had gone with them to attend the fair and at about 10/11.00 p.m., Priyanka had told them that she was feeling sleepy. Appellant was present there and told her that he would drop her home and then Priyanka left with the appellant. Appellant was present there and told her that he would drop her home and then Priyanka left with the appellant. The said fact had been disclosed by them to their parents, when they got up in the morning. As per PW-5 Mohan, he had got up at 10.00 a.m. on 16.12.2012, whereas, PW-6 Sonam had got up at about 9.00 a.m. on 16.12.2012 and came to know that Priyanka had been found dead. However, in the report lodged by the complainant at about 12.30 p.m. on 16.12.2012, the name of the appellant was not disclosed. Appellant had been later falsely involved in this case by the complainant party on 17.12.2012. From the cross-examination of PW-5 Mohan and PW-6 Sonam, it was evident that father of PW-5 Mohan and PW-6 Sonam had also gone to attend the fair. It was not believable that the uncle of the deceased had allowed her to go with the appellant and if he had done so, he would immediately told his brother that deceased had left the fair with the appellant. 8. Learned State counsel has opposed the appeal and has submitted that the statements of PW-5 Mohan and PW-6 Sonam being natural inspire confidence and their statements were liable to be believed. 9. Present case relates to rape and murder of Priyanka aged about 11 years. Exhibit P-30 is the post-mortem examination report of the deceased. The said report has been proved by PW-20 Dr. Vijay Singh. A perusal of the post-mortem report reveals that the cause of death of the deceased was asphyxia due to throttling. There was evidence of recent and forceful sexual intercourse. 10. In order to connect the appellant with the crime, prosecution case rests on the testimony of PW-5 Mohan and PW-6 Sonam. 11. PW-5 Mohan and PW-6 Sonam are brother and sister and are children of Kamal Kishore, who is the brother of complainant Hemraj. 12. PW-5 Mohan has deposed that Priyanka was his cousin sister. About 7/8 months back at about 7/8.00 p.m., he had gone to the fair alongwith Sonam and Priyanka. At about 10/11.00 p.m., they had gone to answer the call of nature and thereafter, Priyanka said that she was feeling sleepy. Appellant was present there and told Priyanka that he would drop her home and then she left with the appellant. About 7/8 months back at about 7/8.00 p.m., he had gone to the fair alongwith Sonam and Priyanka. At about 10/11.00 p.m., they had gone to answer the call of nature and thereafter, Priyanka said that she was feeling sleepy. Appellant was present there and told Priyanka that he would drop her home and then she left with the appellant. They returned home at about 3.00 a.m. after enjoying the fair and they slept. At about 10.00 a.m., he got up and came to know that Priyanka had died. He told his parents that Priyanka had left the fair with the appellant. Dead body of Priyanka was recovered from the fields of Mahesh Sharma. The said witness in his cross-examination deposed that he had gone to the fair alongwith Sonam and Priyanka. Apart from them, his father and many other persons from the village had gone to the fair. He and his father had left their house after informing at home and he alongwith his father had enjoyed the fair up to 3.00 a.m. He had not told his father at night time about the fact that Priyanka had gone with the appellant. When Priyanka had gone with the appellant, his father was not present at the spot but was enjoying the fair. After answering the call of nature, they had come and sat alongwith their father. At night time, his father also did not know whereabouts of Priyanka. When he had got up in the morning, dead body of Priyanka had been found. His statement was recorded by the police after three days. 13. PW-6 Sonam has corroborated the statement of PW-5 Mohan. In her cross-examination, she deposed that her father had also attended the fair but had gone separately to the fair. She had not told her father about the fact that Priyanka was feeling sleepy. While returning home from the fair, the house of her uncle falls on the way but they had not inquired about the whereabouts of Priyanka from her (Priyanka's) mother. They had taken Priyanka with them and had met their father in the fair but they had not told anything to their father. Rather, they had not told their father that Priyanka was accompanying the appellant. 14. They had taken Priyanka with them and had met their father in the fair but they had not told anything to their father. Rather, they had not told their father that Priyanka was accompanying the appellant. 14. Complainant while appearing in the witness box as PW-2 deposed that on 15.12.2012 at about 7/8.00 p.m., his daughter Priyanka had gone to the fair alongwith Sonam and Mohan, who were children of his brother Kamal Kishore. Priyanka was aged about 11 years. Priyanka did not return home at night and they searched for her in the morning but could not find her. At about 9.00 a.m. dead body of his daughter Priyanka was recovered from the fields of Mahesh Sharma. Police reached the spot and he lodged the report. When police had reached, Mohan and Sonam had told them that in the evening, appellant was standing with them and Priyanka had said that she was feeling sleepy and appellant had told her that he would drop her home. They did not know what had been done to her by the appellant. In his cross-examination he deposed that he had searched for his daughter alongwith brother Kamal Kishore and his children. When he met his brother and his children, at that time, nothing had been disclosed to him by his brother or his children. When somebody went to answer the call of nature, dead body of Priyanka was recovered. He admitted in his cross-examination in report lodged by him it was not stated that Mohan and Sonam had told them that appellant had taken Priyanka on the pretext of dropping her home as she was feeling sleepy. At the time of preparation of Panchnama, it was not in his knowledge that Priyanka had gone with the appellant. 15. PW-23 Ramveer Singh deposed that on the day when the report was lodged, he had not made any enquiry from Mohan, Sonam and Kamal Kishore. 16. Thus, from the above facts, it is evident that brother of the complainant had also gone to attend the fair. However, brother of the appellant has not been joined as a witness. From the cross-examination of PW-5 Mohan, it is evident that PW-5 Mohan alongwith his sister Sonam and cousin sister Priyanka had gone to attend the fair and his father had also gone to attend the fair. However, brother of the appellant has not been joined as a witness. From the cross-examination of PW-5 Mohan, it is evident that PW-5 Mohan alongwith his sister Sonam and cousin sister Priyanka had gone to attend the fair and his father had also gone to attend the fair. PW-5 has deposed that after they had answered the call of nature, they had come and sat alongwith their father. In case, Priyanka had left with the appellant, under normal circumstances, PW-5 Mohan and PW-6 Sonam would have informed their father that Priyanka had left with the appellant. In the morning, when Priyanka could not be traced, it was expected that PW-5 Mohan and PW-6 Sonam would have told the complainant that Priyanka had left with the appellant at about 10/11.00 p.m. Complainant has admitted that when they were looking for Priyanka, at that time, his brother Kamal Kishore as well as his children were with him. He also stated in his examination-in-chief that PW-5 Mohan and PW-6 Sonam in the presence of police officials stated that appellant had taken Priyanka with him. However, name of the appellant as the person, who had taken Priyanka with him, is not mentioned in the report Exhibit P-1 and consequently, name of the appellant as an accused is not mentioned in the FIR. It is only on 17.12.2012, i.e., on the next day, name of the appellant was disclosed by the complainant vide Exhibit P-5. Statements of PW-5 and PW-6 were recorded on 18.12.2012. Kamal Kishore brother of the complainant, who was also present at the fair, was not joined as a witness by the prosecution. 17. In the facts and circumstance of the present case, the delay in naming the appellant as an accused by the complainant party gains significance and the statements of PW-5 Mohan and PW-6 Sonam are rendered doubtful with regard to the involvement of the appellant in the crime. PW-5 Mohan and PW-6 Sonam are closely related to the deceased. Father of PW-5 Mohan and PW-6 Sonam is the real brother of the complainant and mother of PW-5 Mohan and PW-6 Sonam is the real sister of the mother of the deceased. As per PW-5, brother of the complainant was also present in the fair and if that be so, his conduct is most unnatural as he was not bothered about the well-being of Priyanka aged about 11 years. 18. As per PW-5, brother of the complainant was also present in the fair and if that be so, his conduct is most unnatural as he was not bothered about the well-being of Priyanka aged about 11 years. 18. Recovery of Salwar as well as Chappals of the deceased has been effected at the instance of the appellant from his house, whereas, the dead body was recovered from the fields. This shows that padding has been done with regard to the recovery of the articles of the deceased to strength him the prosecution case. 19. In the facts and circumstances of the present case, we are of the considered opinion that the prosecution case is rendered doubtful and the prosecution has not come with a true and correct version of the incident. 20. It is a settled proposition of law that prosecution is required to prove its case by leading cogent evidence beyond the shadow of reasonable doubt. Accused is presumed to be innocent till prove the guilty. However, in the present case, prosecution has failed to complete the chain and circumstances leading towards the guilt of the appellant. Hence, appellant is liable to be acquitted of the charges framed against him by giving him benefit of doubt. 21. Accordingly, appeal is allowed. Impugned judgment/order of the trial court dated 09.07.2015 are set aside. Appellant is acquitted of the charges framed against him. Appellant, who is in jail, be set at liberty forthwith, if not required in any other case. 22. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant is directed to furnish a personal bond in the sum of Rs. 25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.