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2022 DIGILAW 1250 (RAJ)

Bhanwara Ram v. State

2022-04-22

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment and order dated 17.05.1993 passed by the learned Additional District & Sessions Judge, Barmer in Sessions Case No.11/92, whereby the accused-appellant was convicted for the offence under Section 376 IPC and was sentenced to undergo seven years rigorous imprisonment and a fine of Rs.1000/-, in default of payment of which, he was to undergo further three months simple imprisonment. 3. The genesis of the present criminal proceedings lies in a written report lodged by one Bankaram (complainant) on 24.02.1992 before the Police Station, Kotwali Barmer alleging therein that on the preceding day i.e. 23.02.1992, he alongwith his wife (prosecutrix) departed from Dharasar and reached Barmer in the evening at about 07:00 p.m.; from there, both were to reach Dhani Kotda, but due to non-availability of any conveyance, they stayed at the Railway Retiring Room at Barmer. 3.1 It was alleged in the report that at that time at about 08:30 p.m. the present accused-appellant arrived at the Railway Retiring Room and requested the complainant and his wife to accompany him to his room, to which request, after some hesitation, they acceded to, more particularly, in view of the fact that they belonged to the same community. 3.2 The complainant and his wife stayed at the room of the present accused-appellant in the night on 23.02.1992; it was alleged that on 24.02.1992 in the morning, the accused-appellant asked the complainant to accompany him to Krishi Mandi for the purpose of loading some grains (dhaan) in the vehicle, and the complainant did so. Learned Senior Counsel further submitted that thereafter, the present accused-appellant asked the complainant to stay at Krishi Mandi itself, while telling him that he (accused-appellant) would be back within half an hour, but the accused-appellant did not return back. 3.3. Subsequently, one Megha Ram Saran informed the complainant, that the accused-appellant had gone to visit his (complainant’s) wife (prosecutrix) and committed rape upon her, whereupon, the complainant rushed back to his wife, and was told that his wife was subjected to the forcible sexual intercourse by the present accused-appellant. 4. Mr. 3.3. Subsequently, one Megha Ram Saran informed the complainant, that the accused-appellant had gone to visit his (complainant’s) wife (prosecutrix) and committed rape upon her, whereupon, the complainant rushed back to his wife, and was told that his wife was subjected to the forcible sexual intercourse by the present accused-appellant. 4. Mr. J.S. Choudhary, learned Senior Counsel assisted by Ms.Sampatti Choudhary, appearing on behalf of the accused-appellant submitted that on the basis of the aforementioned report, a case bearing No.41/92 was registered against the present accused-appellant for the offence under Section 376 IPC; after investigation, a charge-sheet for the offence under Section 376 IPC was filed; the accused-appellant denied the charge and claimed trial; during the course of trial as many as 12 prosecution witnesses were examined, and the prosecution also exhibited 13 documents in support of its case, which were also examined by the learned court below. 4.1 Learned Senior Counsel further submitted that the testimony of the concerned investigating officer of the case was of much significance as he had conducted the whole investigation, prepared site map/report and filed the charge-sheet, but despite being called for repeatedly, he did not put in appearance before the learned court below to render his evidence and statement, and accordingly, his evidence was closed; thus, in absence of any testimony of the investigating officer, the accused-appellant could not be held guilty for the alleged offence. 4.2 Learned Senior Counsel also submitted that PW-2 Tejgiri, PW-3 Rajesh, PW-5 Megha Ram and PW-11 Heera Ram did not support the prosecution case, which factum also falsifies the finding of guilt against the present accused-appellant. 4.3 Learned Senior Counsel further submitted that PW-1 Dr. Vandana Jain and PW-9 Dr. M.M. Purohit medically examined the prosecutrix on the date of the alleged incident itself, and their report clearly shows that no injury was found on the body of the prosecutrix; such medical evidence, which clearly tilts in favour of the accused-appellant’s case, cannot be doubted on any count. 4.4 Learned Senior Counsel also submitted that no report regarding the recovered apparels in the present case, which were sent for the FSL analysis, had been produced before the learned court below, which also casts a shadow of doubt on the prosecution story; the same fate was met by the swab of the prosecutrix and smear sent for FSL analysis. 4.4 Learned Senior Counsel also submitted that no report regarding the recovered apparels in the present case, which were sent for the FSL analysis, had been produced before the learned court below, which also casts a shadow of doubt on the prosecution story; the same fate was met by the swab of the prosecutrix and smear sent for FSL analysis. 4.5 Learned Senior Counsel further submitted that the root cause of the present criminal proceedings, as launched against the present accused-appellant, was the animosity between PW-4 Moola Ram (cousin brother of the prosecutrix) and DW-1 Taga Ram (real brother-in-law of the appellant), on count of identical business being run by them. Learned Senior Counsel also submitted that the said Moola Ram was the instrumental in lodging of the report by the complainant (husband of the prosecutrix), and Moola Ram extended all possible assistance, even out of way, for wrongful implication of the present accused-appellant in the case; the same was done with the sole motive of settling personal scores with Taga Ram, real brother-in-law of the present accused-appellant. As per learned Senior Counsel, the said aspect is further fortified by the fact that at one point of time, the said Moola Ram, through some other persons, had subjected Taga Ram to assault, and a case in regard thereto was pending in the competent criminal court. 4.5.1 Learned Senior Counsel thus submitted that the wrongful implication of the present accused-appellant is apparent on the face of the record, as the same was done at the instance of Moola Ram (brother of the prosecutrix) on false premises, so as to teach a lesson to Taga Ram (real brother-in-law of the present accused-appellant). 4.5.2 Further as per learned Senior Counsel, the prosecutrix at the time of commission of the alleged offence has not raised any alarm or hue and cry, though subsequent thereto, she has told her husband and other persons about commission of such an offence upon her by the present accused-appellant. 4.5.2 Further as per learned Senior Counsel, the prosecutrix at the time of commission of the alleged offence has not raised any alarm or hue and cry, though subsequent thereto, she has told her husband and other persons about commission of such an offence upon her by the present accused-appellant. Though, as per the settled legal proposition, the evidence of a victim of sexual assault does not require corroboration, but in the singular facts and circumstances of the present case as well as the factum of production of interested witnesses, absence of any independent witness, and having regard to the quality of the evidence available on record, the same cannot be safely relied upon to sustain the conviction of the appellant. Thus, such aspect of the case becomes detrimental to the veracity of the prosecution case. 4.6 Learned Senior Counsel therefore, submitted that the aforementioned factual backdrop clearly reveals that the impugned judgment was passed by the learned court below, without due consideration of the overall facts and circumstances of the case, as also the evidence that was placed before it. Thus, as per learned Senior Counsel, it is a clear case, wherein the present accused-appellant deserves to be acquitted of the charge levelled against him. 5. On the other hand, while opposing the aforementioned submissions made on behalf of the accused-appellant, the learned Public Prosecutor submitted that the learned court below had passed the impugned judgment after duly appreciating all the evidence placed before it and after taking into due consideration the overall facts and circumstances of the case. As per learned Public Prosecutor, the learned court below had done a threadbare analysis of all the evidence placed before it; not only this, the learned court below had made due examination of all the witnesses produced before it, coupled with drawing the finding as to their reliability and non-reliability. 6. As per learned Public Prosecutor, the learned court below had done a threadbare analysis of all the evidence placed before it; not only this, the learned court below had made due examination of all the witnesses produced before it, coupled with drawing the finding as to their reliability and non-reliability. 6. Learned Public Prosecutor further submitted that in view of such a detailed analysis being made by the learned court below regarding each and every aspect material to the case and guilt or innocence of the present accused-appellant, neither it can be said that there is anything on record which can be said to be detrimental to the case of the prosecution, nor there is anything placed on record on behalf of the accused-appellant, which may warrant any interference by this Court, in a well reasoned speaking judgment passed by the learned court below; this is more so when, the offence has been found to be duly proved against the appellant, and the said offence is a heinous crime (rape) against the human body and has been made punishable adequately under the Indian Penal Code (Section 376), as the same is to commensurate with the gravity of the offence, and rightly so. Thus, the learned Public Prosecutor submitted that the learned court below has committed no error, neither on facts, nor on law, which may call for any interference by this Court. 7. Heard learned counsel for the parties as well as perused the record of the case. 8. This Court observes that the examination and cross-examination of the concerned investigating officer is very much necessary; such examination, though would not become the sole basis of the acquittal or conviction of the concerned accused person(s), but the investigation officer’s evidence is pivotal to the adjudication during the criminal proceedings. The evidence of the investigating officer, if found to be cogent, would certainly assist the court to arrive at a just conclusion. In this regard, this Court observes that a piquant situation has arisen in this case that despite repeated summons, the investigating officer did not turn up for rendering his evidence, and the absence of such an important and vital evidence, strikes at the very substratum of the prosecution case. This is more so when, the prosecution has not been able to ensure presence of the concerned investigating officer before the learned court below for evidence. This is more so when, the prosecution has not been able to ensure presence of the concerned investigating officer before the learned court below for evidence. On that count, this Court observes as to how the prosecution can claim that it has been able to prove its case beyond all reasonable doubts. 9. This Court further finds that all the witnesses produced before the learned court below and thereafter examined are the interested witnesses, as no independent witness was produced for examination; in absence whereof, this Court observes that the same is very much detrimental to the case of the prosecution. 10. This Court further observes that the medical evidence clearly indicates that no injury was found on the body of the prosecutrix, so as to become certain about the commission of the alleged offence by the accused-appellant. By no stretch of imagination, more particularly in the peculiar facts and circumstances of the case, coupled with perusal of the record attached to the file of the present case, it can be presumed that as a consequence of the alleged act, no sign of any injury would be visible, particularly on the body of the victim/prosecutrix. This is more so when, even in ordinary course, there ought to have been some telltale marks on the body of the prosecutrix pointing towards the commission of the crime of rape by the accused-appellant. Furthermore, the non-reliable state of the evidence led by the prosecution witnesses, could not amply establish unimpeachable nexus of the present accused-appellant with the alleged offence, as the necessary corroborations in the present case are very much absent. Further, the presence of the semen of the accused-appellant on the apparels etc. of the prosecutrix, as an incriminating evidence, was not established by the evidence available on record. These aspects also strike at the very root of the prosecution case, and thus, it is difficult to conclude, without any manner of doubt, that the incident had occurred in the manner, as projected by the prosecution. 11. Though not completely, but being further evident from the materials on record that at all relevant times, their existed enmity between the two factions, for one reason or the other, and thus, it is clear that the appellant has been falsely implicated in this case. 12. 11. Though not completely, but being further evident from the materials on record that at all relevant times, their existed enmity between the two factions, for one reason or the other, and thus, it is clear that the appellant has been falsely implicated in this case. 12. In the aforementioned backdrop, the accused-appellant's assertion of having been falsely implicated in this case cannot be lightly brushed aside. Furthermore, having regard to the state of evidence on record, it cannot be concluded that the prosecution has been able to prove the charge against the accused-appellant beyond all reasonable doubts. 13. For the foregoing observations and reasons, this Court is not inclined to sustain the conviction of the accused-appellant in this case. 14. Resultantly, the present appeal is allowed. Accordingly, the conviction of the appellant as recorded vide the impugned judgment dated 17.05.1993 passed by the learned Additional District & Sessions Judge, Barmer in Sessions Case No.11/92 is quashed and set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail, in pursuance of the order passed by this Hon’ble Court on 14.07.1993 in S.B. Cr.Misc. Bail Application No.180/1993; he need not surrender. His bail bonds stand discharged accordingly. All pending applications also stand disposed of. Record of the learned court below be sent back forthwith.