Vs. State of Rajasthan  Insc 513 (3 December 2002)
Shah & B.P. Singh. B.P. Singh, J.
appellant Mohan Lal was put up for trial before the Court of Special Judge,
S.C./S.T. (P.A.CC.), Sri Ganganagar in Criminal Case No. 4 of 1997 charged of
the offences under Section 376 IPC and Section 3(2)(5) of the SC/ST (Prevention
of Atrocities) Act. The learned Special Judge by his judgment and order dated
6th February, 1998 found the appellant guilty of the offence under Section 376
IPC and sentenced him to undergo 7 years rigorous imprisonment and to pay a
fine of Rs.20,000/-, in default of payment of fine to undergo further
imprisonment for one year. The appellant was, however, acquitted of the charge
under Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act.
Criminal Appeal No. 123 of 1998 preferred by the appellant against his
conviction and sentence was dismissed by the High Court of Rajasthan at Jodhpur by judgment and order dated 13th August, 1999. This appeal has been preferred by
case of the prosecution is that prosecutrix K (PW.1) is the daughter of PW.2
resident of village Birdhwal in the district of Sri Ganganagar. The appellant
is also a resident of the same village. On 8th October, 1996 at about 10.00 or 11.00 a.m.
had proceeded with Draupadi, wife of Bhani Ram to cut grass. Draupadi induced
her to accompany her to the house of the appellant, who was his 'Jeth'
(husband's elder brother) on the pretext of collecting her sickle and cloth
sheet, where she was confined in a room belonging to the appellant who was
present inside the room. He confined her in that room for about 3 4 hours and
during this period raped her thrice. At one time she had come out of the room
in the courtyard when she was seen by her brother PW.5 who resided in the
adjacent house, but she was again pushed inside the room by the appellant and
kept confined there for some more time. PW.5 became suspicious having seen a
girl in the courtyard of the appellant. It is not in dispute that the house of
PW.5 is adjacent to the house of the appellant and there is only a fence which
separates the two courtyards. PW.3, brother of PW.5 had come to him and PW.5
asked him to call PW.2, the informant, father of the prosecutrix. After sometime,
PW.2 came to him and he was told that there was a girl in the house of the
PW.3 to keep a watch, PW.2 went to call Parma Nand and Prithvi Ram with whom he
went to the house of the appellant. At that time appellant had left his house but
he found Sulochana and Draupadi, wives of the two brothers of the appellant
sweeping the floor in the courtyard. Prosecutrix was found inside a room and
she was brought out with the help of PW.5, Parma Nand and Prithvi Ram (both not
examined). Prosecutrix was terrified and it took sometimes to pacify her. All
this happened at about 4.00
thereafter narrated the entire incident to her father PW.2. According to the
prosecution, since it was about sun set time and there was no conveyance available
to go to police station at Rajiasar, which was at a distance of about 14 Kms.,
the informant, PW.2 went to the police station next morning after arranging for
a jeep at about 10.00
a.m. At the police
station, the Station House Officer was not available and he was told by the
other policeman present there to bring his daughter so that his report could be
recorded. He, therefore, sent his son back to the village in the jeep and
thereafter prosecutrix, PW.1 came to the police station at about 4.00 p.m. By that time the Station House Officer had come and
he was able to lodge his report Ext. P.1.
the first information report is said to have been recorded at about 4.15 p.m. on 9th October, 1996
at Police Station Rajiasar, the special report was received by the Court at Suratgarh
only at 11 O' clock on 10th
October, 1996. It also
appears that the investigation commenced only on the 11th October, 1996 and the statement of PW.5 was recorded as late as on
13th October, 1996 i.e. 4 days after the lodging of
the first information report. It appears that for about 2 days there was no
investigation and this gave rise to the submission urged on behalf of the
appellant that in fact the first information report was lodged after
considerable delay and only after due deliberations. This explained why the
special report did not reach the Court in time and also explained why the
investigation commenced after 2 days and a very important witness, PW.5 was
examined after 4 days of the lodging of the first information report, even
though there is no explanation for such delay.
prosecution examined several witnesses. The prosecutrix K was examined as PW.1;
her father (informant) as PW.2, her cousins were examined as PW.3 and PW.5. The
prosecutix has described PW.5 as her brother. In fact the trial court has
recorded a finding that PW.5 was not her brother because he is not the son of
PW.2. The trial court, however, lost sight of the statement of PW.2 that PW.3
was his sister's son. It cannot therefore, be disputed that PW.3 and PW.5 are
the cousins of the prosecutrix K. PW.8 - Bhagwant Singh was examined to prove
the recording of the first information report at the police station.
and PW.7, namely Mam Raj Singh and Dharam Pal Singh, are the investigating
officers. Dr. Vijay Prakash Beniwal, PW.6 had medically examined the appellant
and the prosecutrix. The prosecution also placed on record Ext P.14, the report
of the Forensic Science Laboratory, which proves that there was semen on the 'salwar'
of the prosecutrix and 'kaccha' of the appellant.
the trial court it was contended on behalf of the defence that no such
occurrence took place and that the appellant had been falsely implicated. In
the alternative it was submitted that in any event the evidence on record
discloses that the prosecutrix was a consenting party and, therefore, offence
under Section 376 of the Indian Penal Code is not made out. We may notice at
this stage that the prosecutrix herself stated that she was married a year
before the occurrence and at that time her age was 18 years. Later she stated
that her age was 15-16 years at the time of marriage. The courts below have
proceeded on the basis that she was in any case above 16 years of age on the
date of occurrence.
trial court as well as the High Court accepting the evidence of PWs.1, 2, 3
& 5 found the appellant guilty of the offence under Section 376 IPC.
Learned amicus curiae appearing on behalf of the appellant submitted before us
that the courts below have not even closely examined the evidence on record.
The cross-examination of the witnesses, according to him, will disclose that
the prosecutrix K, PW.1 was a consenting party and this was not her first
sexual intercourse with the appellant. He submitted that the courts below on a
very superficial appreciation of the evidence on record, completely ignoring
the statements made by the prosecutrix in course of her cross-examination,
which supported the case of the defence, have placed reliance on her testimony,
which according to him, is unworthy of belief. He submitted that this was a
case where on facts coming to the knowledge of the informant, father of the prosecutrix,
only after discussing the matter with his relatives and others, the informant
lodged a false report on the next day.
assistance of learned counsel for the parties, we have perused the entire
evidence on record since it was submitted that the courts below have not
subjected the evidence to a critical scrutiny. We find that there is substance
in the submission of the learned amicus curiae.
only question which has to be considered is whether the prosecutrix was a
this regard the medical evidence is not of much assistance since the prosecutrix
was a married woman and habituated to sexual intercourse as deposed by Dr. Beniwal,
PW.6. He did not find any injury on the body of the prosecutrix and on her
private parts. One thing is, however, noticeable, namely that according to the prosecutrix
when the appellant tried to rape her, on account of her resistance, her bangles
were broken and injuries were caused to her wrist. No such injury was also
found on the person of the prosecutrix. We have, therefore, to closely examine
the evidence of the prosecutrix and other witnesses.
perusal of the evidence of the prosecutrix -K, PW.1, would show that in her
examination-in-chief she stated that Draupadi, the wife of the brother of the
accused, took her to the house of her brother-in-law on the pretext that she
had to pick a sickle and a cloth sheet which was lying in the courtyard of the
appellant. The prosecutrix accompanied her but as soon as they entered the
courtyard of the appellant, she was pushed into a 'kotha' by Draupadi, who
closed the door from outside. Inside the 'kotha' (room) the appellant was present
who closed the door from inside by fixing the chain. Thereafter he committed
rape on her thrice. When she started weeping, he threatened her saying that if
she reported the matter, he will kill all the ladies of her house.
to the prosecutrix, after having sexual intercourse with her thrice, he opened
the door and looked in different directions to see if someone was present.
Finding an opportunity, she ran out into the courtyard, but she was caught in
the courtyard by the appellant and again brought to the room. After sometime
the accused-appellant went away but the wives of his brothers, namely Draupadi
and Sulochana kept sitting outside the 'kotha'. They also threatened her and
did not permit her to come out from the room. After about an hour, her father
came and she was rescued.
further deposed that on the first occasion when she had run out of the room,
she was seen by her brother (cousin) PW.5. His house was situated in the
neighborhood and PW.5 could see a person standing in the courtyard of the
appellant. After being rescued by her father, she was brought to her house at
about 4.00 p.m. and thereafter on the next day, she
had gone to the police station where the first information report was lodged.
witness was cross-examined at length and confronted with the statement made by
her in the course of investigation, Ext.D.1. The first fact to be noticed is
that in her statement made during the course of investigation, she had not even
mentioned the fact that she was pushed into the room of the appellant by Draupadi.
She had also not stated that after the appellant went away, those two ladies
came and threatened her and did not permit her to go out. She could not give
any explanation as to how such statements were not recorded. She also stated
that she did not assault the appellant with her sickle because he had slapped
her twice or thrice. The story of slapping is not found in her statement made
under Section 161 Cr. P.C. It also appears from the cross- examination that she
did not resist the appellant when he was removing her clothes, and he had
sexual intercourse with her thrice with ease. On account of fear, she did not
make any noise. The appellant committed rape on her easily. She admitted that
her father came to the courtyard of the appellant about half and hour after the
appellant had left and during that period she remained in the house of the
appellant. She denied the suggestion that she hid herself in the room of the
appellant since she suspected that she had been noticed by her cousin, PW.5,
who was a neighbour of the appellant. She denied this suggestion, but when
confronted with the statement, Ext.D.1 made in the course of investigation to
the effect that she hid herself in the 'kotha', she had no explanation to
offer. She further stated that after the appellant had left, she did not raise
an alarm because the two ladies had come there and they kept sitting there for
about half an hour i.e. till the time her father and PW.5 came to the house of
the appellant. Even this is not found in her statement made in the course of
investigation. She asserted that Parma Nand and Prithvi Jat had not come with
her father but she could not say how their names find place in the statement
made by her to the police.
suggested to the witness that she used to meet the appellant even prior to the
incident in question and that she was paid Rs.50/- on earlier occasions as well
by the appellant for having sexual intercourse with her. She was confronted
with her statement under Section 161 Cr. P.C. wherein she had admitted the fact
that the appellant had been giving her fifty rupees.
significant statement which deserves to be noticed is that though the prosecutrix
denied having taken tea with Sulochana and Draupadi, in her statement to the
police she had stated that she had taken tea with them and Mohan Lal. It is
also significant that in her statement made during the course of investigation
this witness had not stated that she had attempted to run away earlier but she
was again pushed inside the room by the appellant. This was the time when she
had been noticed by her cousin, PW.5.
have noticed these omissions and contradictions in her cross-examination only
with a view to test the credibility of this witness because the conviction of
the appellant is based primarily on her evidence. We find that in the course of
investigation, she had not stated that she was forcibly pushed inside the room
of the appellant ; or that the appellant had slapped her and out of fear she
did not raise a hue and cry; or that after the appellant went away, she was not
permitted to leave by the wives of the two brothers of the appellant but on the
contrary she had hidden herself inside the room after having been seen by PW.5.
Moreover her statement in the course of investigation that on earlier occasions
she had been paid Rs.50/- by the appellant and that she had tea with them on
the day of occurrence as well, creates a serious doubt about the truthfulness
of the version of the prosecutrix and we find it unsafe to rely upon her
testimony to convict the appellant. Not only this, the case of the prosecution
even otherwise does not appear to be credible and it appears that the father of
the prosecutrix, PW.2 on discovering that the prosecutrix was involved with the
appellant, after due deliberations, lodged a report implicating the appellant.
undoubtedly is a cousin of the prosecutrix. He lived in the house adjacent to
the house of the appellant and it is the prosecution case that anyone in the
courtyard of the appellant can be seen from the house of PW.5. The case of the
prosecution is that when the prosecutrix first attempted to run away and was in
the courtyard, she was seen by PW.5. The evidence is not clear as to whether
PW.5 had identified the prosecutrix. There is, however, no doubt that the prosecutrix
had seen PW.5. If PW.5 had identified the prosecutrix there is no reason why he
did not immediately come to her rescue seeing that the appellant had forcibly
pushed her inside his room. If he had not identified the girl, as being the prosecutrix,
there appears to be no reason for his asking his brother PW.3 to call PW.2,
father of the prosecutrix.
amicus curiae submitted that prosecutrix having seen PW.5, hid inside the room
of the appellant to avoid identification, and this is what she stated in her
statement in the course of investigation. This only fits in with the case of
the defence that though she was a consenting party, she was afraid that her
cousin, PW.5 may come to know of the clandestine affair and expose her.
it was submitted, called her father because he may have thought that the father
of the prosecutrix should take whatever steps he may consider necessary as his
daughter was involved.
the evidence of PW.2, the informant, it appears that PW.5 did not disclose to
him the fact that the girl he had seen in the house of the appellant was his
daughter, yet PW.2, the informant, called two other persons and only thereafter
entered the house of the appellant. These facts do tend to support the case of
the defence that the prosecutrix having been seen by PW.5 in the house of the
appellant despite best efforts to conceal herself, the latter called her father
and her father alongwith PW.5 and two others thereafter went to the house of
as the last part of the prosecution case is concerned, namely the recovery of
the prosecutrix from the room of the appellant, the evidence supports the case
of the defence that the prosecutrix was hiding behind the ladies when her
father and others came to her rescue. The normal conduct of the prosecutrix in
such circumstances would have been to rush to the persons who came to her
rescue and not to hide behind the two ladies said to be the wives of the
brothers of the appellant.
these facts lead us to seriously doubt the truthfulness of the case of the
prosecution and we are satisfied that the prosecution has failed to prove its
case beyond reasonable doubt.
result this appeal is allowed, the conviction of the appellant is set aside and
he is acquitted of the charge levelled against him. The appellant shall be
released forthwith unless required in connection with any other case.
place on record our appreciation of the useful assistance rendered by Shri Ranbir
Singh Yadav, amicus curiae. We direct that a sum of Rs.750/- shall be paid to
him for rendering assistance to the Court.