Rajesh Verma vs State

M.C. Sharma, J—This appeal has been filed against the impugned judgment & order dated 27.8.1991 passed by learned Addl. Sessions Judge, Jaipur, Distt. Jaipur in Sessions case No. 39/1991 whereby he has convicted and sentenced the appellant as under:

"U/s.364 IPC: 04 years RI and fine of Rs. 1000/- in default of payment of fine to further undergo 04 months SI.

U/s.308 IPC: 02 years RI and fine of Rs. 1000/- in default of payment of fine to further undergo 04 months SI."

Briefly stated facts of the case are that an FIR for the offences under Sec. 307, 364,325,342, 323 IPC was registered at P.S. Sodala, Distt. Jaipur alleging therein that complainant was married to Rajesh on 15.11.1984, there was some dispute after said marriage and, as such, she started living with her parents. It was further alleged that on 25.10.1987, she had gone to Bus stand at shopping Centre, Jawahar Nagar to leave her sister Shanti to bus stand and while she was returning, she found that the petitioner was standing near the United Commercial Bank with his Luna. It was further stated that the petitioner tried to talk with her but she did not respond, but later on owing to his sweet talks, the petitioner bluffed the complainant and said that we would sit down at place for talks. It was further alleged that she was taken to his house in Mansarovar and the petitioner talked to her till early hours. Further it is mentioned that in the early morning, the petitioner had taken her in his lap and she had gone to sleep. The petitioner tried to strangulate her but she immediately defied him. In the said struggle, she had bit his palm and the finger with full strength and it was due to it, that the petitioner grip was loosen. Subsequently, the informant raised hue and cry and the neighbours collected and saved her. She had stated that she was beaten by legs and hands by which she sustained many injuries including the injury on the back bone.

After usual investigation, police filed challan against the petitioner for offence under Sec. 364 and 308 IPC before the concerned Magistrate where the charges were framed. The petitioner denied the charges and claimed to be tried. The prosecution examined as many as 02 witnesses and got exhibited certain documents. Statement of appellant under Sec. 313 Cr.P.C. was recorded. After hearing both the sides, the learned trial court has convicted and sentenced the appellant as indicated above vide judgment dated 27.8.1991.

Against the said judgment dated 27.8.1991, this appeal has been preferred by the accused appellant.

Learned counsel for the appellant has contended that no case is made out against the petitioner for offence punishable under Sec. 364 IPC as the ingredients of offence under Sec. 364 IPC have not been complied with by the prosecution. It is further submitted that Mst. Shashi had gone with the petitioner with her consent, therefore, the provisions of Sec. 364 IPC is not attracted in the present case. It is also submitted that no case for offence under Sec. 308 IPC is made out against the petitioner. In fact there are material contradictions between the statements recorded to the police under Sec. 161 Cr.P.C. and statements given before the Court by Smt. Shashi. The statements of prosecution witnesses examined to prove the prosecution case, have been recorded after lapse of considerable time. He has also submitted that the Medical evidence has been tampered with at the behest and under the influence of Dr. N.K. Patni who holds a responsible position in the SMS Hospital where Mst. Shashi was alleged to have been examined.

It is submitted that the complainant in her statement has deposed that she was taken on 26th from her father''s house to Malviya Nagar for which a criminal case is pending, whereas in the FIR and her statements, she changed the venue, genesis and place and date of occurrence and said that on 25.10.1987 she was taken from the bus stand to Mansarovar. In her cross-examination, she stated that she does not know how the Family Court has recorded that she was taken on 26.10.1987 from her father''s house to Malviya Nagar. She filed two complaints against the petitioner in the Court, one was dismissed summarily and in another, the court sent it for investigation to the police under Sec. 156(3) in which police gave final report. The said F.R. Was submitted before ADJ, Jaipur but he took notice of it. In the final report the police had specifically mentioned that the complaint was false and she should be prosecuted under Sec. 211 IPC. It is contended that the witnesses PW-1 & 2 are husband and wife; whereas PW-3 to 5 are father and sons. Their statements in the court were contradicted by the police statement and they deposed that they did not give such statements in the police. Their statements including the statement of PW-8 Shashi are full of contradictions and cannot be believed. The complainant Shashi in her statement in cross-examination admits that Dr. NK Patni was present at the time of Medical Examination and he comes to the court on every date on behalf of the prosecution to assist in conducting her case. The medical report was made under the influence of Dr. NK Patni. 7. It has been contended that upon the application filed under Sec. 13b of Hindu Marriage Act before the Family Court, a consent decree has been passed by the Family Court vide order dated 22.6.1998, copy of which has been produced by the learned counsel for the appellant today in the court along with written submissions. Relevant portion of the decree is reproduced as under:

It has been submitted that both the parties i.e. Husband and wife are living separately, with their consent, divorce decree has been passed, occurrence took place on 15.11.1984 i.e. 31 years ago and since then the appellant is facing trial, therefore, he is requesting this court that the impugned order dated 27.8.1991 passed by the trial court may be set aside and appellant may be acquitted of the charges leveled against him.

Learned Public Prosecutor for the State has opposed the same and contended that the impugned order passed by the trial court is just and proper. Hence there is no need to interfere with the impugned judgment.

Mr. NK Joshi, learned counsel appearing for the respondent was asked as to whether consent decree has been passed or not, to which he replied and admits that consent divorce decree has been passed in favour of both the parties and he does not dispute this fact. He further admits that both the parties are living separately, and he does not oppose the submissions advanced by learned counsel for the appellant.

I have heard learned counsel for the parties and carefully perused the relevant material on record.

Looking to the facts & circumstances of the case and keeping in mind the arguments of learned counsel for the parties that they are living separately, with their consent, divorce decree was passed which is on record, occurrence took place in the year 1984 i.e. 31 years ago, complainant filed two complaints against the appellant in the court, one was dismissed summarily by the court and in another, the complaint was sent to the police under Sec. 156(3) Cr.P.C. for investigation and police had given final report and in the final report, police has specifically mentioned that complaint was false and complainant should be prosecuted under Sec. 211 IPC, the statements of PW-1 to PW-5 are contradictory by the police statement, their statements including the statement of PW-8 Shashi are full of contradiction, and the fact that the medical evidence has been tampered with at the behest of, and under the influence of NK Patni, who hold a responsible position in the SMS Hospital, Jaipur where complainant Shashi was examined, I think it just and proper to quash and set aside the impugned order dated 27.8.1991.

In the result, the appeal is allowed. The impugned orders dated 27.8.1991 and 29.8.1991 convicting and sentencing the appellant respectively are hereby quashed and set aside. The appellant is acquitted of the charges leveled against him. The appellant is on bail. He need not to surrender and his bail bonds stand canceled.