The State of Rajasthan vs Kalu Ram

Sunil Kumar Garg, J.—This appeal has been filed by the State of Rajasthan against the judgment and order dated 16.5.1996 passed by the learned Sessions Judge, Merta in Sessions Case No. 25/1994 by which he acquitted the accused respondent of the charge for the offence u/s 376 I.P.C. and another accused Om Prakash of the charge for the offence u/s 376/34 I.P.C.

It may be stated here that though the learned Sessions Judge acquitted two accused persons, but this Court vide order dated 2.5.1997 granted leave to appeal to the State of Rajasthan only against the present accused respondent Kalu Ram.

The facts giving rise to this appeal, in short, are as follows:

On 5.5.1992 at about 9.00 AM, PW-3 Sohanlal lodged a report Ex.P/3 with the Police Station, Degana District Nagaur stating inter-alia that on 4.5.1992 at about 7.30/8.00 PM, his wife Chouthi, PW-6 (hereinafter referred to as the prosecutrix) was coming to Choukha-Ki-Dhani from Chudiyawas after grinding the wheat and at that time, his son Rameshwar (PW-5) was also with her. It was further stated in the report that when the prosecutrix PW-6 Chouthi was coming to Chouka-Ki-Dhani from Chudiyawas, the present accused respondent Kalu and one more person encircled her and after putting her Dabba of flour on the ground, they took her to some other place with an intention to commit rape with her and, thereafter, accused respondent Kalu committed rape with the prosecutrix PW-6 Chouthi against her will and also torn her clothes and Lehanga and also bite her at some places and, thereafter, prosecutrix PW-6 Chouthi made hue and cry, but since there was darkness at that place, nobody came there. It was further stated in the report that PW-5 Rameshwar, who was also with the prosecutrix PW-6 Chouthi at that time, ran away from the scene after being frightened and came to his Dhani and told PW-3 Sohanlal that prosecutrix PW-6 Chouthi was raped by the accused respondent and when PW-3 Sohanlal went towards the place of occurrence, prosecutrix PW-6 Chouthi met him on the way and she also narrated the whole story to him.

On this report, police registered the case and chalked out regular FIR Ex.P/10 and started investigation.

During investigation, on 5.5.1992 Lehanga belonging to the prosecutrix PW-6 Chouthi was seized through seizure memo Ex.P/2 in presence of witnesses PW-2 Bagdaram and PW-1 Bannaram. The prosecutrix PW-6 Chouthi was got medically examined by Dr. Asha, PW-10 on 6.5.1992 and her medical examination report is Ex.P/8. PW-10 Dr. Asha found the following four injuries on her body:

(1) Multiple, Fine, Linear abrasions, size about 8 cm x1/8th cm on medial aspect of left forearm.

(2) Abrasion 1-1/2 cm x 1/4 cm on left forearm, about 4" above waist joint.

(3) Abrasion 1-1/2 cm x 1/2 cm on middle of antr aspect of left leg.

(4) Abrasion 1x1 /2cm on lateral aspect of left thigh.

PW-10 Dr. Asha opined that prosecutrix PW-6 Chouthi was not raped.

After usual investigation, police submitted challan against the present accused respondent Kalu and another accused Om Prakash for the offence u/s 376 and 376/341.P.C. respectively in the Court of Magistrate, from where the case was committed to the Court of Session.

On 29.11.1994, the learned Sessions Judge, Merta framed charges for the offence u/s 376 I.P.C. against the present accused respondent and for the offence u/s 376/34 I.P.C. against another accused Om Prakash. The charges were read over and explained to the accused persons. They denied the charge and claimed trial.

During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statements of the accused persons u/s 313 Cr.P.C. were recorded. In defence, three witnesses were produced by the accused persons. Some documents were also got exibited in defence by the accused persons. Ex.D/4 is the affidavit alleged to have been sworn-in by the prosecutrix PW-6 Chouthi on 11.9.1992, in which she has stated that accused respondent did not commit rape with her. Ex.D/5 is the application dated 6.9.1993 alleged to have been filed by the prosecutrix PW-6 Chouthi in the Court of Addl. Chief Judicial Magistrate, Merta stating therein that the report which was lodged by her husband PW-3 Sohanlal did not contain the true version and the same was false one. Ex.D/6 is the Vakalatnama on which there is thumb impression of the prosecutrix PW-6 Chouthi and for that DW-3 Gopi Kishan was produced and DW-2 Nemi Chahd is the Munshi, who was working with DW-3 Gopi Kishan, Advocate and both have stated that application Ex.D/5 was filed in the Court as per the version given by the prosecutrix PW-6 Chouthl and DW-1 Champalal, Notary Public, who has attested the affidavit Ex.D/4 has stated that the contents of that affidavit were read over and explained to the prosecutrix PW-6 Chouthi, who admitted them to be correct.

After conclusion of trial, the learned Sessions Judge through his judgment and order dated 16.5.1996 acquitted the present accused respondent of the charge for the offence u/s 376 I.P.C. and also acquitted another accused Om Prakash of the charge for the offence u/s 376/34 I.P.C. holding Inter-alia:

(1) That the most important aspect of the statement of the prosecutrix PW-6 Chouthi is that she has nowhere uttered in her statement recorded in Court that sexual intercourse which took place with her by the accused respondent, was against her will or with some force or at the time when sexual intercourse took place with her, she made any hue and cry.

(2) That the version given by the prosecutrix PW-6 Chouthi in her statement recorded in Court did not tally with the version given by her husband PW-3 Sohanlal in the report Ex.P/3 on the points:

(i) That as per the statement of the prosecutrix PW-6 Chouthi recorded in Court, the accused respondent had sex with her thrice, but in the report Ex.P/3, the allegation is that accused respondent committed rape with her only at one time.

(ii) That in cross-examination, prosecutrix PW-6 Chouthi has admitted that because of shame and self-instinct, she did not tell the story to her husband PW-3 Sohanlal about sexual intercourse, which took place with her thrice as she was afraid of the fact that if she would narrate the whole story to her husband PW-3 Sohanlal, he would beat her and she has further admitted that she told her husband PW-3 Sohanlal that she was only beaten by the accused respondent. But, as per the statement of PW-3 Sohanlal and the report Ex.P/3, when he went towards the place of occurrence, prosecutrix PW-6 Chouthi met him on the way and on the way, she told him whole incident that she was raped by the accused respondent.

(iii) That PW-3 Sohanlal states in his statement recorded in Court that he was told by his son PW-5 Rameshwar that accused respondent had raped prosecutrix PW-6 Chouthi, but in his statement recorded in Court, PW-5 Rameshwar states that only scuffle took place between his mother prosecutrix PW-6 Chouthi and the accused respondent.

(iv) That in her statement recorded in Court, prosecutrix PW-6 Chouthi states that she received injuries because of dragging, but the fact that she was dragged and because of dragging she received injuries is not mentioned in the report Ex.P/3.

(v) That in the report Ex.P/3, it is mentioned that accused respondent bite her at various places, but in her statement recorded in Court, that fact is not mentioned by the prosecutrix PW-6 Chouthi.

(vi) That prosecutrix FW-6 Chouthi has stated in her statement recorded in Court that she was dragged, but seeing the site plan Ex.P/1, no such signs are found.

(vii) That the statement of prosecutrix PW-6 Chouthi that she was dragged and because of dragging she received injuries becomes doubtful as in the report Ex.P/3, there is no mention that she was dragged and because of dragging she received injuries.

(viii) That prosecutrix PW-6 Chouthi has stated in her statement recorded in Court that on the spot flour spread, but this fact is not found in the site plan Ex.P/1.

(ix) That prosecutrix PW-6 Chouthi admits that when she was being dragged by the accused respondent, a Tractor passed through on the way and many persons were sitting in the Tractor, but she did not say that she made any hue and cry seeing many persons in the Tractor.

(3) That in the above circumstances, the learned Sessions Judge came to the conclusion that the statement of the prosecutrix PW-6 Chouthi was not reliable and trustworthy.

(4) That the learned Sessions Judge further observed that prosecutrix PW-6 Chouthi was got medically examined on 6.5.1992 and PW-10 Dr. Asha, who examined prosecutrix PW-6 Chouthi for the purpose of ascertaining whether rape was committed with her or not, has stated that she received four injuries and out of four injuries, there were two abrasions on left hand and two abrasions on left thigh. PW-10 Dr. Asha has further stated that these injuries might be self-inflicted one and since they were superficial one, the same could have been caused by another person. PW-10 Asha has categorically stated that prosecutrix PW-6 Chouthi was not raped.

(5) That the learned Sessions Judge has further observed that since prosecutrix PW-6 Chouthi mentioned her age as 42 years, therefore, if a lady of matured age would have been raped forcibly, some sort of injuries on private part and other parts of her body would have been found, but such types of injuries were not found on the body of the prosecutrix PW-6 Chouthi, In these circumstances, the learned Sessions Judge came to the conclusion that medical evidence was not sufficient to corroborate the prosecution case on the point of rape.

(6) That so far as the FSL Report Ex.P/9 where on Lehanga of prosecutrix PW-6 Chouthi, spot of seman was found, is concerned, the learned Sessions Judge observed that since alleged incident took place on 4.5.1992 and the report Ex.P/3 was lodged on 5.5.1992, therefore, it cannot be ruled out that spot of semen would have been found on her Lehanga as her husband PW-3 Sohanlal might have sex with her during that night.

(7) That alleged incident took place on 4.5.1992 and the report Ex.P/3 was lodged on 5.5.1992 and, thus, there is also delay in lodging the report Ex.P/3.

(8) That after discussing the above evidence, the learned Sessions Judge considered the defence evidence and he has come to the conclusion that DW-1 Champalal attested the affidavit Ex.D/4 of the prosecutrix PW-6 Chouthi and since prosecutrix PW-6 Chouthi has admitted that she put thumb impression on Ex.D/4 and in that affidavit Ex.D/4, there is a clear mention of the fact that rape was not committed with her by the accused respondent and she received injuries at the time when she was riding in Chhakra and from this point of view also, the learned Sessions Judge came to the conclusion that whole prosecution case becomes doubtful.

(9) That from the statements of DW-2 Nemichand and DW 3 Gopi Kishan, it appears that the application Ex.D/5 was filed by the prosecutrix PW-6 Chouthi in the court, in which it has been clearly mentioned that the report Ex.P/3 was false one and, therefore, this defence evidence clearly negatives the case of the prosecution on the point of rape.

(10) That learned Sessions Judge has further come to the conclusion that from the evidence on record, it cannot be said that accused respondent had sex with the prosecutrix PW-6 Chouthi against her will. He has further come to the conclusion that if for the sake of argument it is held that accused respondent had sex with the prosecutrix PW-6 Chouthi, that was with her consent.

Aggrieved from the said judgment and order of acquittal dated 16.5.1996 passed by the learned Sessions Judge, Merta, this appeal has been filed by the State of Rajasthan.

In this appeal, it has been argued by the learned Public Prosecutor that the findings of acquittal recorded by the learned Sessions Judge are erroneous and perverse one. The learned Sessions Judge erred in not believing the statement of the prosecutrix PW-6 Chouthi and from the statement of the prosecutrix PW-6 Chouthi and other evidence on record, a case for the offence u/s 376 I.P.C. is clearly made out against the accused respondent. Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal be set aside and the accused respondent be convicted and sentenced for the offence uner Section 376 I.P.C.

On the other hand, the learned Counsel appearing for the accused respondent supported the impugned judgment and order of acquittal passed by the learned Sessions Judge. He has further submitted that the findings of acquittal recorded by the learned Sessions Judge are based on correct appreciation of evidence available on record and therefore, they do not call for any interference by this Court in the appeal filed by the State of Rajasthan.

I have heard the learned Public Prosecutor and the learned Counsel appearing for the accused respondent and perused the record of the case.

The question that arises for consideration is whether the above mentioned findings of acquittal recorded by the learned Sessions Judge, which are based on correct evaluation of all aspects of evidence, are liable to be confirmed one or not.

Before proceeding further, it may be stated here that in Ajit Savant Majagavi Vs. State of Karnataka, the Hon'' ble Supreme Court has held that in an appeal against the order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal agaisnt an order of conviction, but some guidelines have further been formulated by the Hon''ble Supreme Court holding that if the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted and presumption of innocence in favour of accused should be kept in mind and if the order of acquittal is based on reasonable and plausible grounds, the High Court should not disturb it.

The Hon''ble Supreme Court in the latest decision in Kalyan and Others Vs. State of U.P., has held that while hearing appeal against the order of acquittal, the High Court is fully empowered to review the evidence, but it should be slow in disturbing the findings of fact arrived at by the trial court.

In the present case, from perusing the impugned judgment and order of acquittal, it appears that the learned Sessions Judge has very minutely and critically discussed the evidence on record from every point of view, especially he has touched the facts mentioned in the report Ex.P.3 lodged by PW-3 Sohanlal, husband of the prosecutrix PW-6 Chouthi and furthermore, the contradictions which are found in the statements of the prosecution witnesses. The other aspects which he found that they were not favouring to the prosecution have been discussed elaborately. Not only this, the learned Sessions Judge has also discussed the defence evidence which with no exception certainly puts an embargo on the veracity of the prosecution case and creates doubt on the prosecution story. The learned Sessions Judge has given cogent reasons while acquitting the accused respondent of the charge framed against him and it cannot be said that the approach of the learned Sessions Judge in dealing with the evidence is manifestly erroneous and the conclusions drawn are wholly unreasonable and perverse. The findings of acquittal recorded by the learned Sessions Judge are based on correct appreciation of evidence and have been arrived at after taking into consideration all the materials available on record and valid reasons have been assigned therefore, such findings of fact should be maintained by this Court. In other words, the view taken by the learned Sessions Judge cannot be said to be either unreasonable or erroneous one. The appreciation of evidence by the learned Sessions Judge is proper and acquittal recorded by the learned Sessions Judge is justified. This Court is not persuaded to take a different view. Apart from this, normally, Appellate Court does not disturb an order of acquittal in a case where two views of the evidence are possible.

For the reasons stated above, the above-mentioned findigns of acquittal recorded by the learned Sessions Judge are liable to be confirmed and this appeal filed by the State of Rajasthan is liable to be dismissed.

Accordingly, the appeal filed by the State of Rajasthan is dismissed, after confirming the impugned judgment and order of acquittal dated 16.5.1996 passed by the learned Sessions Judge, Merta.