Puna Ram vs State of Rajasthan

Sandeep Mehta, J.—1. The instant appeal has been preferred on behalf of the appellant Puna Ram being aggrieved of the judgment dated 16.2.2009 passed by the learned Additional Sessions Judge (Fast Track), Abu Road in Sessions Case No. 71/2008 convicting the appellant for the offence under Section 376 IPC and sentencing him to ten years rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo six months additional rigorous imprisonment.

Succinctly stated the facts necessary and relevant for disposal of the instant appeal are noted herein below.

Complainant Heema Ram r/o Patumbari filed a written report at P.S. Sarupganj on 14.8.2008 at 12:30 PM alleging inter alia that he was informed that his niece Mst.P (hereinafter called, ''the victim'') had been subjected to rape by Puna Ram, the appellant herein. He made inquiries from his wife and the victim''s mother who told him that the girl had been sexually ravished and was bleeding excessively and her clothes were stained with blood. He pacified the victim and talked to her on which, she told him that earlier in the day, he left the soap bar at the well Bhadarwa Arath after taking bath. His wife asked the victim to retrieve the soap bar. When she was proceeding towards the well, the accused Punia accosted her and subjected her to rape. The first informant gave a telephonic call to the police station. A constable was sent to the village and the report was handed over to him. On the basis of the aforesaid report, an FIR No. 145/2008 was registered at the Police Station Sarupganj for the offence under Section 376 IPC and investigation commenced. The accused appellant was arrested on 15.8.2008 and was medically examined. The medical officer reported that the appellant was fit and capable of performing sexual intercourse. However, no injury was noticed anywhere on his body including his private parts. The site inspection plan was prepared and a blood stained handkerchief alleged to have been used for cleaning the blood after the act of rape was seized from the scene of occurrence. Blood stained soil and stones were also collected from the scene of occurrence. The victim''s blood stained clothes were also seized. School record pertaining to date of birth of victim was collected as per which, the victim was aged between 9-10 years on the date of occurrence. The victim was subjected to medical examination by a medical board which gave a report to the effect that the victim was not having any injury on her body except on the private parts. On gynecological examination, the medical board did not notice any injury on the thighs, abdomen, breasts or vulva of the victim. No injury was seen on labia, majora and minora. The victim was non-cooperative on which the examination was done under general anesthesia. A tear was seen on her hymen on the lateral side with red margins and bleeding was also present on touch. The vagina of the victim was having a tear measuring 6cm x 1cm x 1cm which was bleeding. The board reserved its opinion regarding rape for receiving FSL report. The FSL report was received on 21.8.2008 as per which, the human semen was detected in the underwear of the accused. The other exhibits did not test positive for presence of human semen.

The investigating officer upon concluding investigation, filed a charge-sheet against the accused appellant for the offence under Section 376 IPC. The case was committed to Court of Additional Sessions Judge (Fast Track), Abu Road for trial. The trial Court framed charge against the accused for the offence under Section 376 IPC. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses in support of its case and exhibited 21 documents. The accused, in his statement under Section 313 Cr.P.C. denied the prosecution allegations and claimed that he had been falsely implicated. He, however, did not lead any defence. The learned trial Judge, upon conclusion of the trial, proceeded to convict and sentence the accused as above. Being aggrieved of the impugned judgment dated 16.2.2009, the appellant has preferred the instant appeal.

Mr. Shambhoo Singh, learned counsel for the appellant vehemently contended that the accused appellant has been falsely implicated in this case owing to enmity. He submitted that the accused and the complainant party both hail from the Kalbi community. A cousin brother of the accused appellant had been murdered 6-7 years ago and owing thereto, friction existed between two groups in the community. The family of the accused appellant had been ex-communicated by community. He contended that the telephonic information given by the first informant at the police station does not contain the name of the accused. He further submitted that the victim was a child aged 9 years at the time of the incident. If at all, the petitioner was rapist then it is necessary that he too would have suffered injuries on his private parts in the incident because penetration upon a child would definitely result into injuries being caused to the offender. He relies upon the judgment of the Hon''ble Supreme Court in the case of Rahim Beg & Anr. v. State of U.P. reported in , AIR 1973 SC 343. He drew the Court''s attention to the following portions of the statements of the prosecution witnesses PW1 Mst. Leela Devi aunt of the victim, PW2 Mst. Magni Devi mother of the victim, PW4 Mst. P the victim herself, PW10 Heema Ram the victim''s uncle and PW12 Sang Singh, S.H.O. P.S. Sarupganj and urged that the witnesses have virtually admitted that they had implicated the accused in this case owing to previous enmity:--

He urged that it is evident from the significant admissions appearing in the statements of the material prosecution witnesses that the accused appellant has been falsely implicated in this case. He thus urged that the conviction of the appellant as recorded by the trial Court is totally illegal, perverse and contrary to the facts and evidence available on record and thus, the appellant deserves to be acquitted while setting aside the impugned judgment of conviction.

Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the victim has given cogent convincing testimony against the appellant. He further submitted that upon being medically examined, severe injuries were noticed on the private parts of the child victim which gives clear proof of the fact that the child was subjected to rape. He submitted that the admissions made by the witnesses regarding the existence of a feud inter se between the parties because of the alleged murder in the family of the accused could not have been a reason for implicating the accused in such a heinous and serious offence of rape upon a child. He thus contended that the appeal is devoid of merit and should be rejected.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the record.

In view of the statement of the medical officer who conducted the victim''s medical examination, it cannot be disputed that the child victim was subjected to rape. The Medical Board clearly mentioned in the medical report that the hymen of the victim was torn, bleeding was seen from her vaginal region and the vagina was also having a tear. The victim was just 9 years old on the date of occurrence and she clearly stated that she was subjected to rape. The allegation is supported by medical evidence as well. Therefore, there cannot be any doubt that the victim was subjected to forcible rape.

However, it remains to be seen as to whether the prosecution succeeded in establishing that the appellant was the perpetrator of the offence. From the tenor of the statements of the witnesses, which have been noted above, it cannot be denied that a dispute was existing in the community owing to a murder which took place in the family of the accused sometime before the incident. On the strength of these admissions, a plea has been set up on behalf of the accused that he was falsely implicated in this case. PW1 Smt. Leela Devi, wife of the first informant and the victim''s aunt admitted in her cross examination that the society had excommunicated Punia''s family owing to the murder and nobody in the community maintained any kind of relation with the family and that is why, Punia''s name had been taken by them as the assailant.

The victim herself, in her cross examination admitted that her family and Punia''s family were not on talking terms from well before the incident. After the incident all her family members collected and conferred and it was decided that Punia had to be implicated in the case. Her grandmother, who was alive at that time, told the family members that they should not file a false case but despite that, her uncle and others got registered the case against Punia. She admitted that her uncle tutored her about what she had to speak in the Court and that is why, she was giving the statement in the Court.

The first informant Heema Ram admitted that he had given a telephonic information to the police station after the incident. The S.H.O. P.S. Sarupganj PW12 Sang Singh stated that when Heema Ram gave the telephonic information, he did not disclose the name of the assailant.

Shri Shambhoo Singh raised a contention that when the appellant was medically examined, no injuries were noticed on his private parts. This circumstance, as per him, was clear indication of the appellant''s innocence. Absence of injuries on the private parts of the assailant in a case of rape upon a minor girl is not an absolute indication of his innocence. Nonetheless, this aspect does hold some relevance as held by the Hon''ble Supreme Court in the case of Rahim Beg & Anr. v. State of U.P. reported in , AIR 1973 SC 343. In the case at hand, no injury whatsoever was found anywhere on the appellant''s body including his private parts upon being subjected to medical examination just a day after the incident. Considered in the backdrop of the facts noticed above, lack of injuries on the private parts of the accused appellant gains significance. Sufficient doubt has been created by the defence during cross examination of the material prosecution witnesses which strengthens the case of the accused appellant that he has been falsely implicated in the case. It cannot be gainsaid that under the law as it stood then, the burden to prove the guilt of the accused beyond doubt was on the prosecution.

As a consequence of the above discussion, this Court is of the opinion that the prosecution failed to prove beyond all manner of doubt that it was the appellant and the appellant alone who committed rape upon the victim. Consequently, he is entitled to be acquitted by giving him the benefit of doubt.

Resultantly, the instant appeal deserves to be and is hereby allowed. The impugned judgment dated 16.2.2009 passed by the learned Additional Sessions Judge (Fast Track), Abu Road in Sessions Case No. 71/2008 is set aside. The accused appellant is acquitted of the charge for the offence under Section 376 IPC. He is in custody. He shall be set at liberty forthwith, if not warranted in any other case.