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2020 DIGILAW 219 (RAJ)

Prakash Chand v. State of Rajasthan

2020-01-23

SANDEEP MEHTA

body2020
JUDGMENT : Sandeep Mehta, J. 1. The instant appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellants herein being aggrieved of the judgment dated 01.12.1992 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Udaipur in Sessions Case No. 44/90 whereby the appellants were convicted and sentenced as below:- Offence Under Section Imprisonment Fine Sentence in default of fine 376 IPC 2 Years' RI Rs. 100/- 1 Month's SI 366 IPC 1 Year's RI Rs. 100/- 1 Month's SI 2. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- The oral report of the incident (which was surprisingly not exhibited by the prosecution and was rather exhibited by the defence as Ex. D/3) came to be lodged by the first informant Mst. 'S' at the Police Station Gogunda on 23.02.1987 at 5:00 pm wherein the prosecutrix alleged that a couple of days earlier, she had gone to Village Gogunda to purchase bangles. After having purchased bangles, she started for the village Obra. On the way, a young boy of Mahajan community, resident of village Gogunda came around on a bicycle. He caught hold of her hand. Another Mahajan boy came there on foot. Both these boys forcibly took away the bag being carried by the prosecutrix in which certain silver ornaments were lying. She pleaded with the boys to return the bag on which her mouth was gagged and she was forcibly made to board the bicycle and was taken to the well of a Sunar (goldsmith). Two other boys were present at the well. Another boy of Modi village came there. The Mahajan boys, who had brought the prosecutrix on the bicycle demanded the key of the room but the boys present at the well refused on which the Mahajan boys forcibly snatched the keys. The three boys i.e., the two Mahajan boys and the boy of Modi Village took her inside the room and then tried to rape her. She resisted on which she was beaten. Thereafter, all the three boys subjected her to forcible sexual intercourse one after the other. On the next day also, all the three boys stayed with her inside the room. No one had anything to eat but in the night time, at about 11-12 O' clock, the three boys took her out of the room and took her to the road. On the next day also, all the three boys stayed with her inside the room. No one had anything to eat but in the night time, at about 11-12 O' clock, the three boys took her out of the room and took her to the road. She was boarded on to a truck. She got down from the truck and went home and shared this unfortunate set of events with her sister. She alleged that she did not know the names of the three boys who had raped her and that these boys were having the bag containing her ornaments. On the basis of the report aforestated, an FIR No. 13/87 was registered at the Police Station Gogunda and investigation was commenced. The accused-appellants and the co-accused Bhagwatilal were arrested and were then subjected to test identification proceedings where, the prosecutrix Mst. 'S' (P.W. 7) identified all three correctly. After investigation, a charge sheet came to be filed against the appellants herein and one co-accused Bhagwatilal for the offences under Sections 366 and 376 IPC. The case was committed and transferred to the court of learned Special Judge, SC/ST (Prevention of Atrocities Act) Cases, Udaipur for trial. The trial court, framed charges against the appellants and the co-accused Bhagwatilal for these offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses to prove its case. It may be mentioned here that the prosecutrix Mst. 'S' who was examined as P.W. 7 totally gave up her allegations to the extent of the co-accused Bhagwatilal and was declared hostile to his extent. She resiled from her allegations attributed to the said accused in her police statement and denied the same when confronted with the same by the public prosecutor. The accused appellants and the co-accused Bhagwatilal were confronted with the prosecution allegations when examined under Section 313 Cr.P.C. They denied the same and claimed to have been falsely implicated. At the conclusion of the trial, the learned trial court proceeded to acquit the co-accused Bhagwatilal for lack of evidence but the appellants herein have been convicted and sentenced as above. Hence this appeal. 3. Shri Ravi Bhansali, learned Senior Counsel assisted by Shri Vipul Dharnia, Advocate representing the accused-appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. Hence this appeal. 3. Shri Ravi Bhansali, learned Senior Counsel assisted by Shri Vipul Dharnia, Advocate representing the accused-appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. The prosecutrix was a woman of easy virtue and she implicated the appellants falsely in this case for the purpose of extracting money. When she was examined on oath, she categorically admitted that she had compromised the matter with the co-accused Bhagwatilal after some monetary transaction took place between them and that is why, she gave up her allegations to his extent. He further submitted that the accused were not named in the FIR and their identification by the prosecutrix is tainted because she admitted in her cross-examination that the accused persons were shown to her by the police before the test identification proceedings were held. He thus urges that the appellants too deserve to be acquitted by discarding the testimony of the prosecutrix which is vacillating and unreliable. 4. Per contra, learned Public Prosecutor has vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urges that the prosecutrix had no occasion to falsely implicate the accused persons. The FIR was lodged against unnamed accused. The police arrested the three offenders whereafter Test Identification Proceedings were conducted and the prosecutrix identified all the accused persons correctly. Even in the sworn testimony, the prosecutrix has attributed clear allegations of abduction and rape to the appellants herein and thus, there is no reason to discard her testimony. When the prosecutrix was subjected to medical examination, a large number of injuries were noticed on her body which have been noted in the injury report (Ex. P/10) of the prosecutrix. He thus, urges that the allegations of the prosecutrix are cogent and convincing and are corroborated by the medical report and hence, the appeal should be dismissed. 5. I have given my thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record. 6. It is undoubtedly a very strange case wherein, the prosecution did not care to prove the FIR, which was rather exhibited by the defence as Ex. D/3. The FIR was lodged on the basis of the oral report of the prosecutrix P.W. 7 Mst 'S' and the assailants were not named therein. 6. It is undoubtedly a very strange case wherein, the prosecution did not care to prove the FIR, which was rather exhibited by the defence as Ex. D/3. The FIR was lodged on the basis of the oral report of the prosecutrix P.W. 7 Mst 'S' and the assailants were not named therein. It is indeed a matter of surprise that the prosecutrix remained with the accused for a period of more than 24 hours and she knew their castes but still claim not to know their names. This aspect of the case, throws a significant doubt on the veracity of her evidence. Be that as it may. In the oral report, categoric allegation was levelled against all the three accused of having subjected the prosecutrix to rape. It appears that the accused Bhagwatilal arrested and was identified in the Test Identification Parade, a deal seems to have been struck between him and the prosecutrix who filed an application (Ex. D/2) before learned ACJM No. 2, Udaipur claiming that she did not identify Bhagwatilal as the rapist and that Bhagwatilal had falsely been implicated by police in this case. It may be reiterated that the prosecutrix had correctly identified Bhagwatilal as one of the rapists. However, as the deal had been struck, the prosecutrix totally exonerated Bhagwatilal and did not even allege in her evidence that three persons were involved in the incident. In the sequence of events, as elicited in the cross-examination of the prosecutrix Mst. 'S' (P.W. 7), she admitted that she went to the house of Soni (Goldsmith) where the alleged rape took place, on her foot while accompanying the accused. They walked for a distance of almost half a kilometer. This significant admission by the prosecutrix in her cross-examination clearly indicates that no use of force or coercion was involved in her so-called abduction as was alleged by the girl in the written report and in her sworn testimony. The two boys from whom, the accused allegedly snatched the keys of the room, where the rape was allegedly committed namely Kanna (P.W. 3) and Nathulal (P.W. 4) did not support the prosecution case and were declared hostile. The prosecutrix Mst 'S' (P.W. 7) admitted in her cross-examination that she had entered into a compromise with Bhagwatilal. When given a suggestion that the compromise was based on some monetary transaction, she feigned ignorance. The prosecutrix Mst 'S' (P.W. 7) admitted in her cross-examination that she had entered into a compromise with Bhagwatilal. When given a suggestion that the compromise was based on some monetary transaction, she feigned ignorance. In her cross-examination, initially, the prosecutrix denied that the police showed the accused to her before she went to identify them but to a pertinent question put to her, she admitted that before she was taken to the jail for identifying the accused, the police showed them to her. Therefore, the proceedings of the test identification parade became tainted on this count. Hence, I am of the firm opinion that the evidence of the prosecutrix regarding the manner in which, the incident took place comes under a grave cloud of doubt and her testimony cannot be accepted as totally reliable. In addition thereto, the conduct of the prosecutrix Mst. 'S' in giving up her allegations against one accused i.e., Bhagwatilal on the basis of the compromise also makes her evidence unworthy of credence. The only material evidence which was led by the prosecution to bring home the guilt of the accused was that of the prosecutrix Mst. 'S' (P.W. 7) and no independent corroboration is available so as to support her testimony. 7. As an upshot of the above discussion, I am inclined to acquit the accused appellants of the charges under Sections 366 & 376 IPC while giving them the benefit of doubt. 8. Accordingly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 01.12.1992 is hereby quashed and set aside. They are acquitted of the charges. The accused-appellants are on bail. They need not surrender. Their bail bonds are discharged. 9. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused-appellants are directed to furnish personal bond in the sum of Rs. 15,000/- each and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a special leave petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. Record be returned to the trial court forthwith.