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2020 DIGILAW 256 (RAJ)

Prem Singh v. State of Rajasthan

2020-01-28

SANDEEP MEHTA

body2020
JUDGMENT : Sandeep Mehta, J. 1. The instant appeal has been preferred by the appellant Prem Singh being aggrieved of the judgment dated 01.03.1993 passed by learned Sessions Judge, Churu in Sessions Case No. 18/90 by which, appellant herein was convicted for offence under Section 376 read with Section 511 IPC and was sentenced to undergo three years' RI with fine of Rs. 1,000/- and in default of payment of fine to further undergo four months' SI. Upon realisation of fine, a sum of Rs. 750 was ordered to be paid to the prosecutrix Mst. R. 2. Learned counsel Shri Pritam Solanki urges that conviction of the appellant as recorded by the trial court is absolutely illegal and contrary to the facts and hence, the same deserves to be quashed and set aside. He urges that the statements of the victim Mst. R (PW-2) and her mother Mst. Nanu (PW-1) are totally contradicted by the testimony of Medical Jurist Dr. Jatan Lal Baid (PW-7) and thus, on this ground alone, the appellant deserves to be acquitted of the charge under Section 376 r.w. Section 511 IPC. He urges that the trial court framed charge for the offence under Section 376 IPC against the appellant but finding that the allegation of the prosecution regarding the appellant having subjected the victim to rape, was not corroborated and was rather contradicted by the medical evidence, the trial court, proceeded to acquit the appellant of the charge under Section 376 IPC and instead, convicted him for the offence under Section 376 r.w. Section 511 IPC. Shri Solanki relies upon the judgment rendered by the Hon'ble Supreme Court in the case of Radhu Vs. State of Madhya Pradesh reported in 2007 (6) SC 196 and Sham Singh Vs. State of Haryana (Criminal Appeal No. 544/2018 decided on 21.08.2018) and urges that in case where the evidence of the prosecutrix is totally contradicted by the medical evidence, the test of prudence requires that the court should seek corroboration to her testimony before placing implicit faith thereupon. He thus, urges that the appellant deserves to be acquitted while giving him benefit of doubt. 3. Learned Public Prosecutor on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that the victim Mst. R (PW-2) had no cause to falsely implicate the appellant in this case. He thus, urges that the appellant deserves to be acquitted while giving him benefit of doubt. 3. Learned Public Prosecutor on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that the victim Mst. R (PW-2) had no cause to falsely implicate the appellant in this case. She genuinely stated that she was grazing her cattle when the accused came there, caught hold of her hand, grabbed her mouth and then forcibly subjected her to rape. He urges that the child might not have been able to precisely comprehend the exact nature of sexual violence committed upon her and thus, she appears to have made some exaggerations but by no stretch of imagination, her entire testimony can be discarded as being unreliable. He thus urges that the findings recorded by the trial court in the impugned judgment holding the appellant guilty for the charge under Section 376 r.w. Section 511 IPC and sentencing him as above do not warrant any interference whatsoever and prays that the impugned judgment deserves to be affirmed. 4. I have given my thoughtful consideration to the submissions advanced at the Bar; perused the impugned judgment and have minutely re-appreciated the evidence available on record. Suffice it to say that the prosecution case is primarily based on the evidence of victim Mst. R (PW-2) and her parents Mst. Nanu PW-1 and Ramuram (PW-3) who have given corroborative testimony and the evidence of Medical Officer Dr. Jatan Lal Baid. The victim Mst. R alleged in her evidence that while she was grazing cattle when the accused came around, grabbed her mouth; broke the drawstring of her salwar and forced his private part into her private part, as a result whereof, she started bleeding. Her clothes also got stained with blood. She lost her consciousness as a result of the brutal assault. Mst. Nanu (PW-1) stated that Mewaram brought her daughter to home and at that time, she was totally unconscious. As per this witness, the girl gained consciousness on the next morning. 5. Ramuram (PW-3) also gave similar evidence. Mewaram PW-6 alleged that he heard the cries of Mst. R on which, he ran towards the source of the noise. He reached near Mst. R and saw that she was crying and was holding her salwar up with her hands. On inquiry, Mst. 5. Ramuram (PW-3) also gave similar evidence. Mewaram PW-6 alleged that he heard the cries of Mst. R on which, he ran towards the source of the noise. He reached near Mst. R and saw that she was crying and was holding her salwar up with her hands. On inquiry, Mst. R told Mewaram that the accused had forced himself on her. The witness also stated that he saw Prem Singh running away towards his field. A suggestion was given in defence to the witnesses that the cattle being grazed by the victim entered into the field of Prem Singh and caused damage. Prem Singh slapped the girl and that is why a false case was foisted against him. If at all the version of the prosecution witnesses more particularly the victim is to be believed, manifestly, injuries corresponding to the alleged forcible sexual assault were bound to be noticed when she was subjected to medical examination. However, on perusal of the testimony of the Medical Jurist Dr. Jatan Lal Baid (PW-7) and the medical examination report (Ex. P/6), it is clear that not a single mark of injury was noticed on the person of the victim when the Medical Officer conducted the medical examination. Her hymen was found to be intact and no injuries were noticed on her private parts. The Doctor gave a positive conclusion that there was no possibility of intercourse having been performed upon the girl. 6. In this view of the matter, I am of the firm opinion that the testimony of the prosecutrix Mst. R is totally contradicted by the medical evidence as deposed by the Medical Jurist Dr. Jatan Lal Baid (PW-7), who totally ruled out the possibility of victim having been subjected to rape. The defence contention that a false case has been foisted upon the appellant cannot be brushed aside by simply observing that the victim and her family would not be persuaded to level such allegations against the accused, unless the case was true because lodging of such a case would put the reputation of the entire family at stake. Other than the fact that Mewaram (PW-6) alleged that he saw the victim crying and the accused running away from the place of occurrence, no other independent witness is available to corroborate the evidence of the victim Mst. R (PW-2). Other than the fact that Mewaram (PW-6) alleged that he saw the victim crying and the accused running away from the place of occurrence, no other independent witness is available to corroborate the evidence of the victim Mst. R (PW-2). This sequence of events was also likely if the accused had simply slapped the girl. Considered in light of the significant contradictions and infirmities noticed above in the prosecution case and more particularly, the fact that the evidence of the victim Mst. R is contradicted by the medical evidence, this Court feels that it would not be safe to affirm the conviction of the appellant as recorded by the trial court. The situation existing in the case at hand is somewhat identical to that considered by the Hon'ble Supreme Court in the case of Radhu (Supra) and Sham Singh (Supra) relied upon by the appellant's counsel. It appears that the accused must have slapped the victim because her cattle strayed into his field and caused damage and this incident has been blown up out of proportion by arraigning the appellant for the offence of rape. 7. As a consequence, the appeal deserves to be and is hereby allowed. The impugned judgment dated 01.03.1993 passed by the learned Sessions Judge, Churu in Sessions Case No. 18/1990 is quashed and set aside. The appellant is acquitted of the charge under Section 376 r.w. Section 511 IPC. He is on bail. He need not surrender. His bail bonds are discharged. 8. However, keeping in view the provisions of Section 437-A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs. 40,000/- 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. 9. The record be returned to the trial court.