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Rajasthan High Court · body

2021 DIGILAW 2060 (RAJ)

Idan Ram v. State

2021-10-29

RAMESHWAR VYAS, SANDEEP MEHTA

body2021
JUDGMENT Sandeep Mehta, J. - The instant appeal under Section 378 CrPC has been preferred by the appellant Idan Ram Soni, the complainant (victim?s father), for assailing the judgment dated 17.01.2020 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, Jodhpur District in Sessions Case No.78/2018, whereby the learned trial court acquitted the respondent Bhagirath Singh from the offences punishable under Sections 363, 366-A, 376 IPC and Section 3 read with Section 4 of the POCSO Act and acquitted respondent Ranu Singh from the offences punishable under Sections 363 and 366-A IPC. 2. Briefly stated facts relevant and essential for disposal of the appeal are noted hereinbelow:- The appellant herein lodged a written report (Ex.P/7) at the Police Station Shergarh on 22.10.2017 alleging inter alia that his minor daughter Mst. ?Ch?, the victim, aged 17 years, was present at his house on 21.10.2017. She was induced and taken away at about 11.00 a.m. He suspected that his daughter might have been kidnapped by Bhag Singh and Jaswant Singh with the intention of marrying her off. His daughter had received a call on her mobile phone on 18.10.2017 and this was the basis of suspicion. She had two phones and both were switched off. On the basis of this report, an FIR No.201/2017 came to be registered at the Police Station Shergarh for the offences under Sections 363 and 366 IPC. The respondents Bhagirath Singh and Ranu Singh were arrested and charge-sheet was filed against them after conducting investigation. The trial court framed charges against the accused Bhagirath Singh for the offences punishable under Sections 363, 366-A, 376 IPC and Section 3 read with Section 4 of the POCSO Act, whereas charges were framed against accused Ranu Singh for the offences punishable under Sections 363, 366A IPC. Both the accused denied the charges and claimed to be tried. The prosecution examined 13 witnesses and exhibited 16 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. It would be fruitful to reproduce the language of the charges No.3 and 4, which were framed by the trial court against Bhagirath Singh :- 3. Upon being questioned under Section 313 CrPC and when confronted with the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. It would be fruitful to reproduce the language of the charges No.3 and 4, which were framed by the trial court against Bhagirath Singh :- 3. The trial court appreciated the evidence available on record and came to a conclusion that the school record relied upon by the prosecution to prove the age of the victim was unreliable. The victim was definitely major as on the date of the incident. She voluntarily went away from her father?s house and the accused Bhagirath Singh did not subject her to forcible sexual assault. The trial court took note of the previous police statement of the victim (Ex.D/1), with which she was confronted extensively during her cross-examination. In this statement, the victim stated that she had been married to one Ashok in the year 2013. However, she was not satisfied with her husband and that he was not worthy of her (due to his inability to procreate). He was provided treatment, but was of no avail. She talked to her parents about this infirmity in her husband, on which they told her that she was on her own and could do as she pleased. On this, she contacted Ranu Singh and left her father?s house on the day next to Deepawali, i.e. 21.10.2017, for going to Haridwar. She came down to Jodhpur, from there she went to Jaipur in a Roadways bus. From there, she moved on to Haridwar via Delhi. She stayed at Haridwar for one night and then proceeded to Ahmedabad. On the way, she got down at Sirohi Road. In the meantime, the police found her and took her back to her father?s house. The statement of the victim was also recorded under Section 164 CrPC (Ex.P/4) and she was extensively confronted with the said statement during cross-examination. In this statement, she reiterated the allegation that her husband Ashok was not worthy of her and was of no use (imputation of impotency). She came in contact with one Bhagirath Singh, who used to threaten her saying that he would malign her and also that she would be killed. About 6 to 7 months ago, Bhagirath made her to sleep with him and indulged in a wrong act with her. She came in contact with one Bhagirath Singh, who used to threaten her saying that he would malign her and also that she would be killed. About 6 to 7 months ago, Bhagirath made her to sleep with him and indulged in a wrong act with her. Ranu Singh used to talk to her frequently. She left her father?s house of her own volition on 21.10.2017 and called Ranu Singh. However, she could not contact him. She went to Haridawar. Ranu Singh contacted her and instigated her to reach Ahmedabad. She proceeded and in midway, she got down at Sirohi Road, where the police caught her. 4. When the victim Mst. ?Ch? was examined on oath as P.W.3, she entirely changed the story and alleged that she had come to her father?s house from the matrimonial home. Bhagirath Singh called her out of the house. He and Ranu Singh were waiting there. They boarded her on to a car and took her to Jodhpur. From there, she was made to sit in a bus to Haridwar. On the way, the accused tried to rape her. Then she stated that both Bhagirath Singh and Ranu Singh subjected her to rape after she was taken away from her father?s house. 5. It is relevant to state here that in this statement, the girl did not utter a single word that Bhagirath Singh subjected her to rape 6-7 months before lodging of the report. When confronted with the previous statements (Ex.P/4 and Ex.D/1), she stated that these statements were partially true and partially false. She was confronted with her Bhamashah Card wherein, her date of birth was recorded as 01.02.1994. She also disowned her age as recorded in Ration Card and Job Card (Ex.D/3 and Ex.D/4). After appreciating the evidence available on record, the trial court held that the victim was major on the date of the incident and that she was not kidnapped by the accused persons; that she herself went away from her father?s house of her own free will and volition. The allegation that the victim was subjected to sexual assault about 6-7 months before lodging of the FIR by both the accused was doubtful and that her statement was full of improvements and embellishments. The allegation that the victim was subjected to sexual assault about 6-7 months before lodging of the FIR by both the accused was doubtful and that her statement was full of improvements and embellishments. She tried to improve upon the version set out in her previous statements and also imputed the act of sexual assault against Ranu Singh, whereas no such allegation was made by her in her previous two statements (Ex.P/4 and Ex.D/1). There was no allegation in either of these two statements that the two accused persons accompanied the victim when she went away from her father?s house and till reached Haridwar. Thus, finding the allegations of victim to be full of contradictions and embellishments, her testimony was found to be unreliable and accordingly, the accused were given benefit of doubt and were acquitted by the impugned judgment. 6. After appreciating the evidence available on record, we are not in the least convinced with the contention of Shri Godara that the testimony of the victim is reliable or that the guilt of the accused can be founded thereupon. The appreciation of evidence as undertaken by the trial court and the findings recorded in the impugned judgment while acquitting the accused Bhagirath Singh and Ranu Singh by giving them benefit of doubt is apposite and does not warrant any interference in this victim?s appeal, which is not fit to be admitted. Hence, the same is dismissed at the stage of admission. 7. Record be returned to the trial court.