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2021 DIGILAW 1792 (RAJ)

Dinesh Sharma v. State Of Rajasthan

2021-09-22

PANKAJ BHANDARI

body2021
JUDGMENT 1. The appellant has preferred the instant appeal aggrieved by the judgment and order dated 2.6.2016 whereby the appellant has been convicted for offence under Section 376 of IPC and sentenced to 7 years rigorous imprisonment with fine of Rs.10,000/-, and to further undergo 3 months rigorous imprisonment on non-payment of fine. 2. Briefly stated the facts of the case are that an FIR was lodged through a complaint by Hemant Kumar Yadav, husband of the victim stating therein that on 20.4.2010, the accused clicked obscene photographs and made obscene video clips of his wife and committed rape with her, while she was unconscious. Thereafter, on the threat of making the video clips public, he raped her at Karan Restaurant, Nehru Bazar, Jaipur; Milan Guest House, Janta Store, Bapu Nagar and at various other places. Prior to the present complaint, the accused filed a complaint alleging therein that he is being blackmailed by the prosecutrix and a compromise was arrived at between the parties and the SIMs of the accused as well as complainant's wife were destroyed. The present complaint was filed on 11.1.2011 and FIR was registered on 19.1.2011. The police, after due investigation, submitted the charge-sheet on 22.6.2013. The accused was charged for offence under Section 376 IPC. On behalf of the prosecution, 10 witnesses were examined as PW-1 to PW-10 and Exhibit-P1 to Exhibit-P13 documents were exhibited. Explanation of the accused was recorded under Section 313 Cr.P.C. in defence. Exhibit-D-1 to Exhibit-D-3 were exhibited. The trial Court after hearing the arguments, has convicted and sentenced the accused as aforesaid, aggrieved by which, the present appeal has been filed. 3. It is contended by learned counsel for the appellant that as per the FIR, first instance took place on 20.4.2010. The complaint was lodged on 11.1.2011 i.e. after an inordinate delay of more than 8 months. It is also contended that earlier, a complaint was lodged by the appellant against the complainant's wife with regard to blackmailing, in which a compromise took place between the parties and the SIMs were broken. At that time also, the victim did not make any complaint with regard to rape. 4. It is also contended that earlier, a complaint was lodged by the appellant against the complainant's wife with regard to blackmailing, in which a compromise took place between the parties and the SIMs were broken. At that time also, the victim did not make any complaint with regard to rape. 4. It is also contended that from the document Exhibit-P11 - call details, which is produced on behalf of the prosecution, it is evident that number of calls were made by the victim to the accused and the duration of call is also for about 20 minutes per call. It is further contended that in the complaint (Exhibit-D-2), which was lodged by the appellant, there was specific allegation that the victim is blackmailing and demanding Rs.10,000/-. As many as 85 WhatsApp messages were also sent by the victim to the appellant. It is contended that the fact that WhatsApp messages were sent and received by the appellant is admitted by the complainant and the victim. 5. It is contended that present complaint has been lodged to extort money. It is also contended that except statement of the victim, there is no other evidence to establish that the victim was raped by the appellant. It is further contended that no obscene material has been recovered or produced before the Court below to establish the fact that the victim was raped on the threat of making the obscene photos public. It is further contended that neither any record from the hotel was seized nor any witness was produced to establish that the victim stayed with the appellant at the hotel. It is contended that the medical of the victim, which was done after one year of the incident, does not establish commission of the offence of rape. In support of his arguments, learned counsel has placed reliance on Anita Versus State of Rajasthan: 2013 (3) Cri.L.R. (Raj.) 1624 and Amit Kumar @ Vicky Versus State of Punjab (P&H): 2014 (3) R.C.R. (Criminal) 579. 6. I have considered the contentions and perused the record as well as the statement of the witnesses. 7. Complainant - husband of the victim - PW-9 is an important witness, who has lodged the complaint. 6. I have considered the contentions and perused the record as well as the statement of the witnesses. 7. Complainant - husband of the victim - PW-9 is an important witness, who has lodged the complaint. In his examination-in- chief, he has admitted that the appellant's father called him and the appellant at that time told him that his wife is sending wrong messages to him and is calling him at her house. In the cross- examination, this witness had admitted that the appellant had lodged the complaint with regard to blackmailing against the witness and the victim. He has admitted that in that case, a compromise was arrived at between the prosecutrix and the appellant and the SIMs of both the prosecutrix and the appellant were destroyed. He has also admitted that the appellant had informed him that his wife had sent 85 messages to the appellant. This witness has admitted that neither any obscene photograph of the victim was seen by him nor any obscene material is available on record. 8. PW-8 - victim has stated that on 20.4.2010, the appellant gave her pineapple juice and she got unconscious. She has stated that the appellant made some obscene clippings and on threat of making them viral, committed rape with her at her residence and thereafter, took her to different restaurants situated at Nehru Bazar and Janta Store, Bapu Nagar where she was raped. She has admitted that she did not narrate the incident of 20.4.2010 to anyone till 2.1.2011. She has also admitted that when the police came to her house, she did not reveal that she was raped. She has further admitted that the appellant had lodged a case with regard to blackmailing and that a compromise was arrived at between her and the appellant and the mobile SIMs of the appellant and the victim were destroyed. She has also admitted that her husband told her that she had sent 85 messages to the appellant. 9. It is evident that there is an inordinate delay of more than 8 months in lodging of the FIR. It is also evident that a criminal complaint of blackmailing was lodged by the appellant in July, 2010 wherein there was allegation that the victim is sending wrong messages to the appellant and is calling him at her residence. 9. It is evident that there is an inordinate delay of more than 8 months in lodging of the FIR. It is also evident that a criminal complaint of blackmailing was lodged by the appellant in July, 2010 wherein there was allegation that the victim is sending wrong messages to the appellant and is calling him at her residence. A compromise was arrived at between the victim and the appellant in that case and in July, 2010 itself, SIMs were broken. It is clear that the victim did not lodge any complaint with regard to rape and did not inform her husband or any of her relatives with regard to the commission of offence till January, 2011. Exhibit-P-11 is the call details, which goes to show that many calls were made by the victim to the appellant and the duration of each call was about 20 minutes. Further from the call details, it is evident that even prior to 20.4.2010, victim was making calls to the appellant. This goes to show that the victim was having some relationship with the appellant at her own free will. Neither any record of the restaurant has been produced nor any witness has turned up to establish that the victim went with the appellant to the restaurant. 10. The inordinate delay in lodging of the FIR coupled with the fact that prior complaint was lodged by the appellant alleging that he was being blackmailed by the victim and that the victim has sent him 85 vulgar messages and is calling him at her residence and in that case, a compromise was arrived at between the victim and the appellant and SIMs were broken, also gives an indication that the present complaint was filed with some ulterior motive. In the complaint, which was filed by the appellant, the victim could have narrated the incident of rape to the police and her husband, but she remained silent, which goes to show that the allegation of the appellant that he was being blackmailed, was a true allegation and it is only for this reason that the victim entered into a compromise with the appellant. The prosecution has not produced any vulgar or obscene material to establish that the appellant was blackmailing the victim. The prosecution has not produced any vulgar or obscene material to establish that the appellant was blackmailing the victim. At the time when the allegation was levelled against the victim, the fact that the victim was being threatened on the basis of obscene photographs, could have been disclosed by the victim to the police authorities and her husband. The defence of the appellant appears to be more genuine because his complaint was filed almost 5 months prior to the present complaint and there is an inordinate delay of more than 8 months in lodging of the present complaint. 11. The conviction of the appellant for the offence under Section 376 IPC, therefore, cannot be sustained. Learned Court below has not properly appreciated the factum and admission of the prosecutrix and her husband that a prior complaint was lodged for blackmailing by the appellant and that there was allegation that 85 messages have been sent to the appellant. The calls made by the victim to the appellant are even prior to the alleged date of the incident. The Court below has also not properly appreciated the fact of inordinate delay in lodging of the present complaint and the defence of the appellant. 12. This Court accordingly, set aside the judgment and order dated 2.6.2016 and acquit the appellant of the offence under Section 376 IPC. The appeal is accordingly allowed. 13. The bail bonds submitted by the appellant earlier are hereby cancelled. However, the appellant is directed to furnish a bond in the sum of Rs.50,000/-, and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within four weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court. The bail bond will be effective for a period of six months.