Amar Singh vs The State of Rajasthan

Raghuvendra S. Rathore, J.—The accused-appellant has sought to challenge, in this appeal u/s.374 (2) Cr. P.C. the judgment dated 27.06.1985, passed by the learned Sessions Judge, Jhunjhunu, in Sessions Case No. 27/1984, whereby he has been convicted for the offence u/s.376 IPC and awarded sentence of 7 years rigorous imprisonment and a fine of Rs. 100/-, in default of which to further undergo one month''s rigorous imprisonment.

Brief and relevant facts of the case are that a report came to be lodged (9/84), by Smt. Vimla on 25.02.1984 at Police Station, Buhana. The said report was in respect of an incident, which had taken place on 24.02.1984 at about 2.00 P.M. It was stated in the report (Ex.P5) by the prosecutrix Vimla Devi that her family had sown the agricultural field in partnership with the accused. Further it is stated that, at about 2.00 P.M. on 24.02.1984 along with her two nanads (husband''s sisters) Sumer PW6 and Bala PW8, she was uprooting the grass in the filed of one Banwarilal and at that time the accused-appellant came and asked her two nanads to go and work in another field. Thereafter, when her two nanads had gone away, the accused-appellant forcefully took the prosecutrix and committed the offence of rape. It is also stated in the report that at the time when the accused-appellant was committing the offence and a hue and cry was raised, Smt. Nathi W/o. Leelaram Harijan, who was working in the neighboring field, came at the place of occurrence and the accused ran away. It is also stated in the report that Hanuman Singh had also witnessed the occurrence.

During the course of investigation, the medical examination of the prosecutrix was conducted and her clothes as well as the clothes of the accused were seized by the police. On completion of the investigation, challan was filed against the accused person for the offence of rape. Subsequently, on committal of the case, the learned trial court framed charge against the accused-appellant on 21.11.1984 for the offence u/s 376 1PC.

The learned trial court commenced the trial after formulating the points of consideration. The prosecution had, in support of its case, produced 12 witnesses and many documents which were duly exhibited. Thereafter, the statement of the accused-appellant u/s 313 Cr.P.C. was recorded by the learned trial court. The accused had stated that he has been falsely implicated on account of enmity. He further stated that one Mool Singh is the friend of the complainant party and it is because of him that the instant case has been falsely lodged against him. In defence, the accused-appellant produced Hanuman Singh as DW1. On completion of the trial, the learned trial court convicted and sentenced the accused-appellant for the offence as aforementioned.

The learned counsel for the appellant has assailed the judgment passed by the learned trial court on various grounds. He has submitted that the report in the instant case had been lodged after an inordinate delay. According to him, taking into consideration the facts and circumstances of the present case, the delay of 27 hours in lodging report is very much vital. He has further submitted that the prosecution story is falsified on account of the fact that the medical evidence on record shows that the prosecutrix did not sustain any injuries, particularly on the private parts of the body. This alone, as submitted by the learned counsel for the accused-appellant, is sufficient to throw out the prosecution story in respect of the sexual intercourse having been committed on the prosecutrix by force and against will/consent. The learned counsel for the appellant has also emphasized on the point that, it has come on record that the husband of the prosecutrix was very much at home but neither a prompt report had been lodged by him nor he has come before the trial court to support the prosecution story, The learned counsel for the accused-appellant has also submitted that the clothes of the prosecutrix were seized on the next day, for the reasons best known to the investigation agency, though the prosecutrix was very much present before the police since the time of lodging of the report by her.

On the other hand, learned Public Prosecutor has supported the judgment passed by the learned trial court. He has further submitted that the prosecution case is well proved from the evidence on record and it was the accused-appellant who had committed the offence of rape on the prosecutrix Vimla Devi, who is of a tender age. He has also tried to controvert the aforesaid submissions made by the learned counsel for the accused-appellant.

The rival submissions made by the learned counsel for the parties have been thoughtfully considered by the court and the evidence recorded by the trial court has been carefully perused. The incident in this case had taken place on 24.02.1984, during the day at about 2.00 P.M. The report had been lodged on 25.02.1984 at about 5.00 P.M. in the evening by the prosecutrix herself, who is wife of Kishanlal. The learned trial court has itself recorded that the prosecutrix had stated that her husband was away from home for last 10 days, as he had gone to Jaipur for filling-up a form. But the nanad, (husband''s sister Sumer) PW6 has categorically stated that her brother was very much at home. In such circumstances, the delay in lodging the report and the non-appearance of the husband of the prosecutrix before the trial court, certainly becomes crucial.

As per the case of the prosecution, in the first information report itself, the two persons who had seen the occurrence were Smt. Nathi w/o. Leelaram Harijan, who was working in the field which was in the neighborhood and also Hanuman Singh. So far as Smt. Nathi W/o. Leelaram Harijan is concerned, she has not at all supported the prosecution story and as such she was declared hostile. As regards the other eye witness, namely, Hanuman Singh, it is noteworthy that the prosecution has dropped him and did not produce as a witness before the trial court. It was the defence who had brought Hanuman Singh in the witness-box as their witness DW1. He has categorically deposed that the accused-appellant was not seen committing any offence of rape on the prosecutrix. Therefore, it is important to note that the two star witnesses of the prosecution, who had been named in the FIR as eye witnesses, had not supported the story of the prosecution and this certainly casts a shadow of doubt on their case.

So far as the other evidence of the prosecution in respect of the clothes of the prosecutrix, seized during the course of investigation is concerned, it is to be noted that they were seized after long delay, i.e., the next date though the prosecutrix was very much before the investigation agency since the filing of the report. Moreover, the prosecution witness Mohan Singh PW12 has categorically stated that the lehnga of the prosecutrix Vimla was not seized immediately but it was in fact seized on 28.02.1984. Therefore, there are material contradictions in respect of the time of seizure of the clothes of the prosecutrix and the forensic laboratory report received on the basis of the clothes so seized definitely creates a doubt.

The other evidence on record produced by the prosecution is of the family members of the prosecutrix, who are definitely interested persons. There is no doubt about the fact that the prosecutrix is not only grown-up but is a married woman and wife of Kishanlal Harijan.

Therefore, for the reasons mentioned above, the prosecution has, in the instant case, failed to prove its case beyond reasonable doubt. There are reasons more than one which cast a shadow of doubt on the prosecution story in respect of the commission of the offence alleged. In my considered opinion, in such a situation, the benefit should be granted to the accused. Consequently, "the impugned judgment passed by the learned trial court, whereby he has convicted and sentenced the accused-appellant, deserves to be set aside.

In the result, the appeal is allowed. The impugned order dated 27.06.1985 is quashed and set aside. The accused-appellant is acquitted of all the charges levelled against him. He is on bail and his bail bonds stand discharged.