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2024 DIGILAW 862 (RAJ)

Kanhayalal v. State of Rajasthan

2024-05-28

SUDESH BANSAL

body2024
JUDGMENT : Sudesh Bansal, J. - This appeal under Section 374 CrPC has been filed, challenging the judgment and order dated 17.08.1990 in Sessions Case No.157/1989 passed by the Sessions Judge, Bundi whereby and whereunder the accused-appellant has been convicted for offence under Section 376 IPC and sentenced to undergo seven years rigorous imprisonment with fine of Rs. 2500/-, in default to further undergo one year rigorous imprisonment. 2. The material and relevant facts, in brief, giving rise to the present appeal are that: 2.1 Alleged incident of rape is of 31.07.1989 and at that point of time, prosecutrix was a married woman of about 22 years, who lodged a report on 01.08.1989 at Police Station Kapren (Ex.P2), stating inter alia, that she went on her field on a day before the incident to guard her farm and when, after getting freshen up in the water body at Dhoklia wadi, she was returning at about 5-6 PM, accused Kanhaya Lal S/o Deva Gurjar, R/o Boyan Ka Khera, Kapren came there and caught her from back and dropped her on the ground; lifted her Ghagra and committed rape with her against her will. It is stated in the report that after committing sexual intercourse by accused, his semen was discharged and her Ghagra became wet. 2.2 It is stated in the report that when she made a hue and cry, her jeth (husband's elder brother) came on the spot from the nearby field; then after looking him, accused Kanhaya Lal fled away from there. 2.3 It is further stated in the report that after the incident of her rape, she went at her home crying and told about the incident to her husband and then she came in the early morning at about 3:30 AM, with her husband namely Gangadhar and one Dwarka Lal at Police Station for registering the case against accused. 2.4 On such report, an FIR No.90/1989 at Police Station Kapren for offence under Section 376 IPC came to be registered. Investigation was commenced. After investigation, charge-sheet was filed before the Judicial Magistrate No.2, Bundi and criminal case was registered. The case was committed to the Sessions Court, where charge for alleged offence was framed against accused. 2.5 The accused appellant pleaded not guilty and claimed trial. 2.6 The prosecution examined as many as 12 witnesses including prosecutrix herself (PW-2), Dr. Investigation was commenced. After investigation, charge-sheet was filed before the Judicial Magistrate No.2, Bundi and criminal case was registered. The case was committed to the Sessions Court, where charge for alleged offence was framed against accused. 2.5 The accused appellant pleaded not guilty and claimed trial. 2.6 The prosecution examined as many as 12 witnesses including prosecutrix herself (PW-2), Dr. Hari Mohan (PW-1), Dwarka Lal (PW-3), who went with prosecutrix to lodge the FIR and is author of written report (Ex.P2), Mohan (PW-6), who is jeth of prosecutrix and stated to come at the spot after hearing hue and cry of the prosecutrix as much as is a star witness of prosecution being an eye witness of the incident. In documentary evidence, the medical report of prosecutrix, FSL report, site map etc. were exhibited. 2.7 After concluding prosecution evidence, examination of accused was made under Section 313 CrPC, who denied the evidence of prosecution and claimed that he has falsely been implicated for the alleged offence in the present case. 2.8 After conclusion of trial, the trial Court after relying upon the statement of prosecutrix (PW-2) and her medical report proved by Dr. Hari Mohan (PW-1), arrived at conclusion that the accused appellant is guilty for committing offence under Section 376 IPC vide judgment dated 17.08.1990 and convicted and sentenced him as mentioned hereinabove. 2.9 Hence, in such backdrop of facts, accused-appellant has preferred this appeal. 2.10 During course of hearing of the appeal, sentence awarded against appellant was suspended vide order dated 05.11.1990, taking note of the fact that during course of criminal trial also accused appellant was released on regular bail. 3. Heard learned counsel for appellant, learned Public Prosecutor and perused the record. 4.1 Learned counsel appearing for and on behalf of accused-appellant would contend that the solitary statement of prosecutrix (PW-2) are not sufficient to prove the guilt of accused appellant for the alleged offence beyond reasonable doubt and her statements are not of that much sterling worth to convict the appellant for offence under Section 376 IPC. 4.1 Learned counsel appearing for and on behalf of accused-appellant would contend that the solitary statement of prosecutrix (PW-2) are not sufficient to prove the guilt of accused appellant for the alleged offence beyond reasonable doubt and her statements are not of that much sterling worth to convict the appellant for offence under Section 376 IPC. Learned counsel pointed out several contradictions and discrepancies in the version of prosecutrix and states that there is no coherence in the manner of incident as narrated by the prosecutrix in the report (Ex.P2), in her statements recorded under Section 161 CrPC (Ex.P1), in her statements recorded before the Court and with the site map (Ex.P8), prepared during course of investigation for the place where incident of rape was allegedly happen. 4.2 Learned counsel contended that the case of prosecution does not find corroboration from the evidence of prosecution and physical injuries allegedly found on body parts of the prosecutrix and proved by the Dr. Hari Mohan (PW-1), do not suggest to draw an inference of forcible rape of prosecutrix; there are no injuries on the private part of prosecutrix nor any injury marks on the back and hips nor there is any sign that prosecutrix protested her sexual intercourse by the appellant, if at all was made, hence, the possibility of having consensual sex between both may also not be ruled out. He submits that both parties were in close proximity of age and belong to same caste and community and resident of same village. The husband of prosecutrix has not turned up to adduce his evidence to support the prosecution case. The star witness of prosecution (PW-6), who is stated to be eye witness has been declared hostile by the prosecution and he has not supported the case of prosecution for committing forceful rape of prosecutrix by the appellant. 4.3 Learned counsel contended that the trial Court committed manifest, illegality and perversity in recording findings of conviction of appellant merely on the basis of sole evidence of prosecutrix, which itself does not inspire confidence and the conviction of appellant made on that basis is not sustainable. 4.3 Learned counsel contended that the trial Court committed manifest, illegality and perversity in recording findings of conviction of appellant merely on the basis of sole evidence of prosecutrix, which itself does not inspire confidence and the conviction of appellant made on that basis is not sustainable. 4.4 Learned counsel contended that the FSL report also does not corroborate the sexual intercourse by the appellant with prosecutrix; no human semen was detected in the vaginal swab of prosecutrix nor there is any report to match the spots of semen on the Ghagra of prosecutrix. 4.5 Learned counsel contended that in the alternative, if the entire circumstances, scenario as shown in the site map and the evidence of prosecution on record is considered holistically, firstly the evidence of prosecution falls short to establish the case of prosecution of committing rape of prosecutrix by appellant beyond reasonable doubt and alternatively, as per evidence of prosecution, possibility cannot be ruled out that the prosecutrix lodged the report against the appellant because her Jeth Mohan Lal (PW-6) had seen them together in the bay of village. 4.6 Therefore, his submission is that the impugned judgment of conviction is liable to be quashed and accused appellant deserves to be acquitted of the charge of offence under Section 376 IPC. 5. Learned Public Prosecutrix supported the case of prosecution and the impugned judgment of conviction and prayed to dismiss the appeal. 6. Heard. Considered. 7. The factual matrix of the case which has discern from the record is that the allegation against the appellant to commit rape of prosecutrix is of dated 31.07.1989 at about 5-6 PM at Village-Boyan Ka Khera in bay of Dhoklia Wadi, report of which was lodged by the prosecutrix on the next day i.e. on 01.08.1989 early in the morning at about 3:30 AM at Police Station Kapren. Prosecutrix and accused both are resident of Village Boyan Ka Khera and belong to the same caste and community who are not unacquainted with each other. This fact clearly reflects from the written report of prosecutrix wherein accused has been indicated with his name, father's name and place of incident. From the record, it appears that at the time of alleged incident, prosecutrix was about 22 years of age and accused was about 26 years of age, thus, both fall almost in the same age group. 8. From the record, it appears that at the time of alleged incident, prosecutrix was about 22 years of age and accused was about 26 years of age, thus, both fall almost in the same age group. 8. The prosecutrix has make out a case against the accused that he committed sexual intercourse with her forcefully against her will and when she made a hue and cry, her Jeth Mohan Lal immediately came on the spot and after seeing Mohan Lal, accused fled away from the spot. According to prosecutrix, after the incident of her rape, she went at her home crying and narrated her woe to her husband; then she went police station to register the report along with her husband Gangadhar and one Dwarka Lal, who is her dharambhai. 9. In the written report of prosecutrix dated 01.08.1989, apart from thumb impression of prosecutrix, thumb impression of her husband Gangadhar and her dharambhai namely Dwarka Lal, who authored the report, are also find place. The fact that at the time of incident of rape, Jeth of prosecutrix namely Mohan Lal came at the spot and saw the accused to commit sexual intercourse with prosecutrix by applying force, is mentioned in the written report (Ex.P2) as also has been stated by prosecutrix in her statements recorded under Section 161 CrPC (Ex.P1), as much as prosecutrix has made clear statement in her evidence recorded during trial that her Jeth Mohan Lal saw them laying up-down and after seeing her Jeth, accused fled away from the spot. Jeth of prosecution, Mohan Lal in his statements recorded under Section 161 CrPC (Ex.P7) has also stated that when he heard hue and cry of prosecutrix, who is wife of his younger brother, he immediately reached at spot and noticed that accused Kanhaya Lal was committing sexual intercourse with brother's wife forcefully by putting her on the ground under his pressure. He stated that when he pushed Kanhaya Lal, he immediately fled from there. Thus, Jeth of prosecutrix namely Mohan Lal is an eye witness of the incident of rape and is star witness of prosecution. 10. It is noteworthy that Mohan Lal appeared as witness of prosecution (PW-6), but has not supported the case of prosecution and was declared hostile. In his cross-examination as well, nothing has come on record to prove the allegation of rape of prosecutrix by the appellant. 10. It is noteworthy that Mohan Lal appeared as witness of prosecution (PW-6), but has not supported the case of prosecution and was declared hostile. In his cross-examination as well, nothing has come on record to prove the allegation of rape of prosecutrix by the appellant. Thus, the star witness of prosecution, who is eye witness of incident, has turned hostile and it is not case of prosecutrix that he has any ill motive against her. 11. It is also worthy to note that the husband of prosecutrix, to whom she states to narrate her woe after the incident of rape, and who allegedly went with prosecutrix at police station to lodge the report, has not appeared as witness of prosecution to support the case of prosecution. Thumb impression of husband of prosecutrix is available at mark "H" on the written report dated 01.08.1989 (Ex.P2). Prosecutrix changed her version in court statements that after the incident, she went home and stated that her devar Rajaram and dharambhai Dwarka Lal went with her to lodge the report. Rajaram has also not appeared as prosecution witness, nor his presence at police station finds place in the record. 12. As far as Dwarka Lal (PW.3) is concerned, he is author of the written report (Ex.P2) whose signature also finds place on the report at mark "A" to "B", but he seems to be an implanted witness of prosecution and his evidence is based on hearsay evidence. Dwarka Lal PW-3 has tried to prove the site map (Ex.P8), but he is not witness of site map, rather the site map was allegedly prepared in presence of Mohan Lal it means Jeth of prosecutrix, but Mohan Lal has been declared hostile and he has not proved the site map. It is not the case of prosecution that the site map was prepared on instructions and in presence of prosecutrix. 13. Thus, there is no other evidence of prosecution, to support the prosecution case except the statements of prosecutrix herself along with her injury report. From perusal of the impugned judgment, it appears that the trial Court has recorded findings of conviction of appellant for the offence of rape, basically relying upon the sole evidence of prosecutrix and her injury report. 14. From perusal of the impugned judgment, it appears that the trial Court has recorded findings of conviction of appellant for the offence of rape, basically relying upon the sole evidence of prosecutrix and her injury report. 14. Having perused the evidence of prosecutrix (PW-2), same does not inspire confidence to establish the forceful sexual intercourse by the appellant with her against her wish. There are several infirmities in her evidence, which may not be treated as an evidence of sterling worth to establish the offence beyond doubt. There is contradiction in the manner of incident, timings as also about the place where she was subjected to rape by the accused. In the report (Ex-P2), it is stated that when after getting freshen up in the water body at Dhokliya Wadi, she was returning to her home, accused attacked on her from back and pushed her on the ground and committed rape, whereas in her statements under Section 161 CrPC, she stated that when she came for getting freshen up, accused came there and caught her in his hands and dropped her on the ground and committed rape. In her cross-examination during course of trial, she stated that when she was sitting for being freshen up near the water body, at that time accused caught her in sitting position and just laid her on the ground and committed rape. Perusal of site map (Ex-P8) suggest that the place F, where accused caught the prosecutrix is different than the place A, where her rape was committed. As per site report, place A is about 8-9 feet away from place F. Thus, according to the scenario as depicted in the site map, accused and prosecutrix moved about 7-8 feet away from the spot F, whereas prosecutrix does not state so. Thus, there is no coherence in her evidence having compared with the manner of incident as depicted in the site map (Ex.P8). 15. In addition, apparent contradiction in statements of prosecutrix is reflected that initially her version was that after the incident, she went at home and narrated the story of rape to her husband and then went to police station to register the criminal case along with her husband and one Dwarka Lal, but in the cross-examination, she changed her version that her Devar Rajaram and Dwarka Lal went with her at police station to lodge the report, directly after the incident. 16. Statements of prosecutrix in respect of making protest by her to the forceful sexual intercourse by the appellant also suffer from discrepancy. On asking the manner of protest, she narrated that she abused the accused, somewhere she narrated that she pushed him back and somewhere she narrated that she kicked the accused. She admits wearing glass bangles, but not a single glass bangle was broken. 17. Having considered the medical report of prosecutrix, there are no injury marks on her private parts whereas she stated in her evidence that accused brutally pinches and bite on her breast as also on her inner portion of thighs. She states to show her private parts to the Doctor before her medical examination. In the medical report of prosecutrix (Ex.P1), there are no abrasion, bruises or other slightest of injury marks either on her private parts or on her back, hips and at other body part which touched to the ground, as according to case of prosecution, the incident of rape was allegedly committed on the open ground in the bay. The injury of swelling, blue marks as has been noted in the injury report and on her various body parts like inside elbow of left hand, on the upper portion of right leg in lower side, abrasion on the inner side of thigh of right leg, a blue mark on the portion in between back and hips etc. do not match with the incident of forceful sexual intercourse with a woman on the open ground in the bay. Thus, injuries, which have been observed by Doctor in her medical examination as has been noted in the medical report and proved by Doctor (PW.1), hardly has any nexus with the incident of rape. Looking to the living status of prosecutrix, who states to usually indulged in work of guarding her farm and is a rustic villager, such minor injury at different place of her body part may not be treated as abnormal. All such injuries have not been observed to be recent nor medical report indicates the period of injury is how much old. The trial Court has committed perversity in connecting such injuries with the incident of rape without matching the nature of injuries, period of injury as how much old and places where such injuries have been observed by the Doctor. The trial Court has committed perversity in connecting such injuries with the incident of rape without matching the nature of injuries, period of injury as how much old and places where such injuries have been observed by the Doctor. Thus, evidence of Doctor (PW.1) hardly supports any help to the case of prosecution establishing the fact that prosecutrix was subjected to rape by the appellant. 18. It may also be noticed that in the vaginal swab of prosecutrix, the FSL does not fortify sperms of the accused nor there is evidence to show any sperm/ semen of accused on the vaginal smear of prosecutrix. Prosecutrix is a married woman, who states to went at her home after the incident and met with her husband in the night, therefore, from that angle the evidence of having swelling on her vaginal part, rupture of hymen and other connecting evidence to show sexual intercourse on her may not be connected and linked to establish the offence of rape by accused-appellant on the prosecutrix. As per FSL report, no semen was detected in the vaginal swab and vaginal smear. 19. It is also worthy to note that there is no report of FSL that any semen of appellant was found on the Ghagra of prosecutrix, which was seized on the next day and according to prosecutrix her Ghagra became wet by the discharge of semen of appellant. In the fard Japti of Ghagra (Ex-P3) one of witness is Motilal, yet PW-7 Mangi Lal appeared as witness of fard japti of Ghagra, but has turned hostile, though, PW-3 has proved fard japti. Prosecutrix also stated that her lugdi was torn during course of subjecting her to rape, however, no lugdi has been seized. There is no clarification as to when, how and who shaved the pubic hair of prosecutrix. Prosecutrix states to shave her pubic hair by nurse before the medical examination, but no such hair have been seized. Thus, the case of prosecution is not clearly established by all connecting evidence, which must have come on record. The gap and lacuna in prosecution evidence give benefit of doubt in favour of accused. 20. Prosecutrix states to shave her pubic hair by nurse before the medical examination, but no such hair have been seized. Thus, the case of prosecution is not clearly established by all connecting evidence, which must have come on record. The gap and lacuna in prosecution evidence give benefit of doubt in favour of accused. 20. It is true that the evidence of prosecutrix in a case of rape is of the same value as that of an injured person and conviction of a rape accused can be made on the basis of the sole testimony of the prosecutrix. But the sole testimony of the prosecutrix must be trustworthy, without suffering from any infirmities and contradictions. The testimony of the prosecutrix must be appreciated in the background of the entire case and the testimony is beyond doubt or of high quality, free from any contradictions, unassailable and unimpeachable, than only the prosecutrix can be treated as sterling witness, and her solitary evidence may be sufficient to prove guilt of accused for rape and to convict him. Reference of celebrated judgments passed in case of State of Punjab v. Gurmit Singh [ 1996 (2) SCC 384 ], Ganesh v. State [ 2020 (10) SCC 573 ] and Rai Sandeep @ Deeput v. State of NCT of Delhi [ 2012 (8) SCC 21 ] would be suffice to support the aforesaid view of this Court. 21. On appreciation of evidence of prosecution, in the opinion of this Court, statements of prosecutrix are not of that sterling worth that on the basis of solitary evidence of prosecutrix, the offence of Section 376 IPC be held proved against the appellant beyond reasonable doubt more so when her medical report and FSL report do not support the case of prosecution to subject the prosecutrix to rape by the appellant. Learned trial Court has recorded the evidence of guilt by drawing, inferences on the basis of surmises and conjectures. The contradictions and discrepancies in the evidence of prosecutrix as well as the true nature of medical report of prosecutrix and the report of FSL, which do not corroborate the incident of rape, have not been taken into consideration in their true perspective. The contradictions and discrepancies in the evidence of prosecutrix as well as the true nature of medical report of prosecutrix and the report of FSL, which do not corroborate the incident of rape, have not been taken into consideration in their true perspective. The trial Court has committed error of fact and law in convicting the appellant on the basis of solitary evidence of prosecutrix supported with her medical report, though, the solitary evidence of prosecutrix suffer from several infirmities noted above and neither inspire confidence, nor is trustworthy to establish the offence of rape against appellant beyond reasonable doubt. The offence of rape does not stand establish beyond reasonable doubt by the evidence of prosecution, yet the trial Court convicted the appellant. 22. In case of Narendra Kumar v. State (NCT of Delhi) [ (2012)7 SCC 171 ], the Apex Court held that if statement of prosecutrix suffers from serious infirmities, inconsistencies and deliberate improvements on material points, no reliance can be placed thereon. In case of Sadashiv Ramrao Hadbe v. State of Maharashtra [ (2006)10 SCC 92 ], the Apex Court held that if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are high improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. In case of Santosh Prasad @ Santosh Kumar v. the State of Bihar [ (2020)3 SCC 443 ], the Apex Court held that the solitary version of the prosecutrix cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt. In case of Prem v. State of UP, Criminal Appeal No.520/ 1999, decided on 6-9-2023, the Allahabad High Court found that there were contradictions in evidence of witnesses, no spermatozoa was found in the private part of prosecutrix, there was family dispute between prosecutrix and accused, no injury was found on private part or the body of prosecutrix, the delay in filing report was not explained, therefore, the court held that evidence of victim cannot be treated as gospel truth, and the conviction of accused was set aside. 23. 23. On appreciation of entire evidence of prosecution, this court finds that the solitary evidence of the prosecutrix cannot be treated to that of confidence in the category of sterling witness or so as to prove the case of committing rape of the prosecutrix by the appellant against her wish. The narration of the story by prosecutrix is not liable to be accepted as gospel truth, since the evidence of the prosecutrix is not free from contradictions and infirmities. Further, evidence of prosecutrix does not find any corroboration either by ocular or medical evidence, nor by the site inspection submitted by the Investigation Officer and as much as the eye witness of incident PW-6 has turned hostile. 24. In such view of the matter, as per principle of law, expounded by the Apex Court in cases of Narendra Kumar (supra), Sadashiv Ramrao Hadbe (supra), Santosh Prasad (supra) and Prem (supra), the conviction of appellant for offence under section 376 IPC merely on the solitary evidence of prosecutrix is not liable to be affirmed. The solitary evidence of the prosecutrix does not fall within the category of sterling worth to prove the offence of appellant. The prosecution case is not established against the appellant beyond reasonable doubt and the accused appellant is entitled to get benefit of doubt. The learned trial court has committed error of fact and law in convicting the appellant, without noticing gaps and lacunas of prosecution evidence. Therefore, the conviction of appellant under section 376 IPC is not sustainable in eyes of law. 25. As a result, the present appeal succeeds and is hereby allowed. The conviction and sentence of the appellant for the offence under section 376 IPC are hereby quashed and set aside. 26. The appellant is on bail, he need not to surrender. His bail bonds are discharged. 27. Record of the trial court be sent back.