Tola ram And Ors vs State Of Rajasthan

These three appeals arise out of the judgment dated 22.12.2014 passed by the learned Additional Sessions Judge (Woman Atrocities Cases), Bikaner in Sessions Case No.25/2013, whereby the appellants Tola Ram and Nema Ram were convicted and sentenced as below, whereas the accused Asu Ram was acquitted of the charges :

Name of the Offence for appellant convicted which Sentence awarded

Tola Ram and Section 376 (2) (g) IPC Nema Ram Life term imprisonment alongwith a fine of Rs.10,000/- and in default of payment of fine, further to undergo six months' additional simple imprisonment

Section 342 IPC   One month's simple imprisonment

Section 323 IPC   One month's simple imprisonment

D.B. Criminal Appeal No.216/2015 has been preferred by the accused-appellants Tola Ram and Nema Ram for assailing their conviction and the sentences awarded to them by the trial court as above, whereas D.B. Criminal Appeal Nos.127/2015 and 678/2016 have been preferred by Hadmana Ram (complainant) and the State of Rajasthan respectively for assailing the acquittal of the accused Asu Ram by the very same judgment. As all the three appeals arise out of a common judgment, they are being decided together.

Brief facts relevant and essential for disposal of the appeals are noted hereinbelow:

The complainant Hadmana Ram lodged a written report (Ex.P/1) at the Police Station Bichhwal, District Bikaner on 05.09.2011 alleging inter alia that on the previous day, i.e. on 04.09.2011, he, alongwith his sister-in-law Mst. 'S' wife of Mangilal Nayak (hereinafter referred to as 'the victim') had gone to Bikaner for purchasing household articles. They got delayed at Bikaner, upon which they decided to go back to their Dhani at Khara. For this purpose, both of them boarded a taxi from Bikaner and got off at Baburam Swami's hotel near Mahalaxmi Petrol Pump. While alighting from the taxi, they saw Tola Ram S/o Jetha Ram, Nema Ram S/o Deepa Ram and another man sitting on a cot outside Baburam's hotel. After getting off from the taxi, both started walking towards their field. They sensed that they were being followed by someone, on which they turned around and saw Tola Ram, Nema Ram and their companion following them. They had crossed the field of Moola Ram and were moving towards their Dhani, when suddenly, Tola Ram, Nema Ram and their companion surrounded them. Nema Ram and the unknown man caught hold of the complainant Hadmana Ram, whereas Tola Ram forced the victim down on the ground and raped her. Thereafter, Nema Ram also raped the victim. The first informant alleged that he was continuously restrained by two assailants while the third took turns and subjected the victim to rape. It was further alleged that while the third person was forcing himself upon his sister-in-law, the complainant somehow managed to escape from the clutches of Tola Ram and Nema Ram and started running towards Chhaganaram's Dhani while calling for help. On hearing his perfervid cries, persons from the nearby Dhanis were alarmed. Someone used a torch to throw light in the direction from where the complainant was shouting for help. On hearing the commotion, the complainant's cousin Narayan (P.W.3) and brother Om Prakash (P.W.5) came there. They confronted the three accused, who snatched the victim's bor (ornament worn on the head) and ran away.

On the basis of this report, FIR No.164/2011 was registered at the Police Station Bichhwal for the offences under Sections 341, 323, 382, 376 and 34 IPC. The case was assigned to P.W.13 Sumer Singh, SHO, Police Station Bichhwal, who carried out the requisite steps of investigation, viz. inspection of the place of incident, etc. The victim was subjected to medical examination by a medical board, which issued the medico-legal report Ex.P/12. Dr. Indubala (P.W.7), who was one of the members of the board, conducted physical and gynaecological examination of the victim and took note of two abrasions on the private parts of the body of the victim :

(1) Abrasion of size 7 cm. X 0.5 cm. On right labia majora with clotted blood.

(2) Abrasion 1 cm. X 0.5 cm. On periurethral region with clotted blood.

Another abrasion of size 1 cm x 0.5 cm. was noted just below the lower lip left to midline with fresh clotted blood.

The board reserved its opinion regarding recent sexual intercourse upon the victim for the chemical analysis report of the vulvo-vaginal swabs and smears preserved for this purpose.

When the victim was examined during the course of investigation, she named Asu Ram as the third assailant. The Investigating Officer, proceeded to arrest all the three accused, i.e. Tola Ram, Nema Ram and Asu Ram. They were also medically examined by a Medical Jurist, who issued reports to the effect that all the three accused were competent to indulge in sexual intercourse. Investigation was concluded and charge-sheet was filed against the three accused for the offences under Section 341, 342, 323, 376 (2)(g) read with Section 34 IPC in the Court of the Chief Judicial Magistrate, Bikaner. As the offence under Section 376 (2)(g) IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Bikaner, from where it was transferred to the Court of Additional Sessions Judge, Woman Atrocities Cases, Bikaner for trial. Charges were framed against the accused for the above offences, to which, they pleaded not guilty and claimed trial.

The prosecution examined as many as 13 witnesses and exhibited 20 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the allegations posed by the prosecution, the accused denied the same and claimed to be innocent. A defence theory was projected by the accused claiming that the victim had eloped with her brother-in-law Hadmana Ram (the informant) and both did not return for a significant period of time, on which, the villagers remonstrated. Being agitated with the reaction of the villagers, the complainant party feeling peeved foisted the false case against the accused persons in order to wreak vengeance. No witness was examined in defence.

After hearing and considering the arguments advanced by the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court, delivered the judgment dated 22.12.2014, whereby the appellants Tola Ram and Nema Ram were convicted and sentenced in the terms above, whereas the accused Asu Ram was acquitted of the charges. These three appeals have been preferred for assailing the impugned judgment.

Mr. Sanjay Mathur, learned counsel representing the accused-appellants Tola Ram and Nema Ram vehemently and fervently urged that the entire prosecution case is false and fabricated. He put forth the pertinent submissions noted below for assailing the impugned judgment seeking reversal thereof and sought acquittal of the accused-appellants :

(1) That the FIR is highly delayed as the incident took place in the late hours of 04.09.2011, whereas the FIR (Ex.P/1) came to be lodged at the Police Station Bichhwal as late as at 03.00 p.m. on 05.09.2011 despite the police station being located at a distance of only 7 kms from the place of incident. As per Mr. Mathur, multiple means of transportation were available for proceeding from the place of incident to the Police Station Bichhwal, yet the complainant party delayed lodging the FIR by almost 20 hours. This time, as per Mr. Mathur, was utilized for concocting a case and for falsely implicating the accused appellants for trumped up charges because they had openly objected to the illicit affair of the complainant and the victim.

(2) That there are grave contradictions in the statements of Hadmana Ram (P.W.2) (the first informant) and Mst. 'S' (the Victim) regarding the place of incident. As per Mr. Mathur, if the statements of these two witnesses are closely scrutinized with reference to the site inspection plan (Ex.P/3), it would be pellucid that the witnesses spoke blatant lies while deposing on oath regarding the place and manner of the incident. Mr. Mathur further submitted that there is a grave discrepancy in the prosecution evidence regarding the place where the victim and the complainant were proceeding after stepping off from the taxi at Baburam's hotel. He urged that the prosecution witnesses admitted that taxis, which were plying from Bikaner towards the destination of the complainant and the victim, usually went right upto the Dhani of Mangilal, who is the husband of the victim. Thus, as per Mr. Mathur, there was no rhyme or reason for the complainant and the victim to have alighted from the taxi at the Mahalaxmi Petrol Pump and the entire story was concocted by the prosecution to somehow or the other to implicate the appellants in this patently false case.

(3) That no independent witness from the neighborhood was examined by the prosecution so as to lend credence to the flimsy story put forth in the sworn testimony of the complainant and the victim. As per Mr. Mathur, the complainant alleged in the FIR that he raised an alarm, on which, a commotion was caused by the people in Chhaganaram's Dhani. Mr. Mathur urged that no one from the Dhani of Chhaganaram was examined in support of this assertion made by the complainant and thus the entire prosecution case becomes doubtful for lack of independent corroboration.

(4) That no injuries were found on the body of the victim, which creates a significant doubt on the truthfulness of her testimony. As per Mr. Mathur, since the victim was allegedly ravished by three persons on rough ground, injuries associated with such violence were bound to show on the body of the victim. As per Mr. Mathur, no significant marks of injuries were noticed by the medical board when the victim was subjected to medical examination. Thus, as per the learned defence counsel, the entire prosecution case needs to be discarded as being unsubstantiated. (5) Mr. Mathur further submitted that the fact that the respondent Asu Ram was not named in the FIR and the prosecution tried to introduce him as an accused in the subsequently recorded statement of the victim, gives strong indication about the fervent efforts of the prosecution to falsely implicate the persons, who were righteously expostulating against the illicit affair between the victim and the first informant.

On these grounds, Mr. Mathur implored the court to accept the appeal, set aside the impugned judgment and acquit the accused appellants of the charges.

Per contra, learned Public Prosecutor and Mr. H.S. Shrimali, learned counsel representing the complainant Hadmana Ram, vehemently and fervently opposed the submissions of Mr. Mathur. They urged that the evidence of the material prosecution witnesses is natural and trustworthy. Neither the victim nor the first informant Hadmana Ram, had any reason to foist a false case of rape and thereby put the reputation of their family at stake. They urged that the case involve gangrape of a woman hailing from a conservative family with a rural background. In such cases, the concept of family honor, often acts as a hindrance in initiating police action. The learned Public Prosecutor and the complainant's counsel also pointed out that no significant suggestion was given by the defence counsel during cross- examination of Hadmana Ram (P.W.2), regarding the alleged delay in lodging of the report. The incident took place in the dead of the night and the complainant party hails from a rustic rural background and therefore, it would have been difficult for them to approach the police station in the night time. However, they reached the Police Station Bichchwal at 12 PM the very next day. Thereafter, the report was drafted and was lodged with the police without any undue delay. Thus, they contended that there was no delay whatsoever in lodging the First Information Report. They further contended that the theory of false implication put forth by the defence counsel by asserting that the complainant and the victim were suspected to be indulged in an extra-marital affair, which was exposed and that is why, the report was lodged as a measure of counterblast, is absolutely conjectural and fictitious. The defence could have examined witnesses from the village to fortify this assertion, if at all the false implication theory so advanced was to be probabalized. They further contended that had there been an iota of truth in the defence theory regarding the allegations in the FIR being false, the natural reaction would have been to approach the Investigating Officer and to persuade him to investigate this angle. On the contrary, not even the faintest of suggestion was given to the Investigating Officer Sumer Singh (P.W.13) that rumours were rife that the victim and the complainant were indulged in an illicit relationship. They further urged that the factum of the victim having been sexually violated by multiple assailants, is duly corroborated by the medico-legal report (Ex.P/12), which was proved by Dr. Indubala (P.W.7). They pointed out that an abrasion was found on the lower lip of the victim in addition to the two abrasions found existing on her private parts, which thoroughly corroborate the testimony of the victim that she was sexually violated by multiple assailants. Regarding the perfervid contention of Mr. Mathur that there exist discrepancies in the prosecution evidence regarding the place of incident, they contended that the non-existent discrepancies attempted to be harped upon by Mr. Mathur regarding the place of incident and the impact thereof on the prosecution evidence is totally misplaced and inconsequential. They endorsed that the witnesses hail from a rural background and the misleading/ambiguous questions put to them in cross-examination might have confused them on this issue. However, as per them, no significant discrepancy is manifested regarding the place of incident when the statements of the complainant (P.W.2) and the victim (P.W.4) are closely analyzed. Learned Public Prosecutor and the complainant's counsel further urged that the acquittal of the accused-respondent Asu Ram as recorded by the trial court on the sole ground that his name was not mentioned in the FIR was absolutely unjustified. They submitted that accused-respondent Asu Ram was resident of the same village as the convicted co- accused persons. He was seen running away from the place of incident by numerous witnesses, who reached the spot on hearing distressful cries of the complainant. Thus, inquries were made and it was established that the third accused was none other than Asu Ram, on which, the victim bonafide named him in her statement recorded under Section 164 CrPC. The learned Public Prosecutor and the complainant's counsel fervently contended that the learned trial court was absolutely unjustified in acquitting the accused-respondent Asu Ram of the charges because as per them, there is no doubt regarding his involvement in the offence. They urged that acquittal of Asu Ram as recorded by the trial court suffers from perversity and deserves to be set aside.

Mr. Manish Dadhich, learned counsel representing the respondent Asu Ram urged that the name of this accused was neither mentioned in the written report (Ex.P/1) nor in the first statement of the victim (Ex.D/2) recorded during investigation on 05.09.2011, as well as the investigational statement of Hadmana Ram, even though both of them claimed that they learnt from the villagers on the very day of the incident, i.e. on 05.09.2011, that the third assailant was none other than Asu Ram. Thus, learned counsel Mr. Dadhich urged that the omission of the name of accused Asu Ram in the FIR carries far too much significance so as to be ignored, and his acquittal as recorded by the trial court vide the impugned judgment does not call for any interference whatsoever. On these grounds, learned counsel Mr. Dadhich pleaded for dismissal of the appeals preferred by the State as well as by the complainant.

We have given our thoughtful consideration to the submissions advanced by the learned counsel for the parties, have minutely perused the impugned judgment and carefully re- appreciated the evidence available on record.

Law is well-settled by a catena of Supreme Court judgments that in a case of gangrape, the evidence of the victim, if reliable and inspires confidence, does not require corroboration from any other source.

The most significant fact, which this court is persuaded to note at the inception, is regarding the absolute lack of animosity or ill-will between the complainant party and the accused party. The entire evidence will have to be appreciated keeping this important facet in mind. A perusal of the statements of Bega Ram (P.W.1) (father-in-law of the victim), Hadmana Ram (P.W.2) (the first informant) and Mst. 'S' (P.W.4) (the victim), makes it clear that other than vague suggestions given to these witnesses regarding the conjectural theory of false implication on account of rumours in the village that there existed an immoral relationship between the complainant and the victim, no concrete material whatsoever was brought on record by the defence so as to even remotely probablize the theory of false implication as being tenable.

The victim (P.W.4) categorically alleged in her testimony that she was sexually tormented by three accused persons consecutively while she was returning to her Dhani with the complainant. On a closer re-appraisal of her statement and a comparative analysis thereof with the evidence of complainant (P.W.2), it is clear that the so-called discrepancies and contradictions amongst these two statements sought to be highlighted by the defence counsel are totally insignificant and trivial. The theory disputing the place of incident sought to be projected from the statements of complainant (P.W.2) and the victim (P.W.4) and the site inspection plan (Ex.P/3) is totally untenable, considering the fact that neither the complainant nor the victim were confronted with this document in their cross- examination. The narration about sequence of multiple sexual assault, made by the victim Mst. 'S' (P.W.4) in her statement on oath, is consistent with the evidence of the complainant (P.W.2).

Mr. Mathur had vehemently and fervently argued that there is incongruity regarding the purpose, for which the complainant and the victim had gone to Bikaner, but after a close examination of their sworn testimony, we find that both the statements are consistent with each other. The victim Mst. 'S' (P.W.4), categorically alleged in her testimony that they had gone to Bikaner for purchasing household goods. The fact that she also went and took medicines from a doctor cannot be termed to be a material improvement so as to discredit the substractum of her entire testimony. While returning, she and her brother-in-law Hadmana Ram boarded a taxi and got down at Baburam's hotel and were proceeding towards their field. The three accused followed them surreptitiously. While they were walking towards their field and had reached about 100 meters from the field of her uncle-in-law Moola Ram, the accused-persons surrounded them. Both the victim and the complainant were beaten. Tola Ram forcibly pushed the victim down on the ground. Asu Ram and Nema Ram caught hold of Hadmana Ram. The accused persons gave them death threats. Tola Ram first subjected the victim to rape. Thereafter, Nema Ram came around while Tola Ram and the other man restrained her brother-in-law. Nema Ram sexually violated her and then Asu Ram also subjected her to rape. Her brother-in-law somehow escaped from the clutches of Tola Ram and Nema Ram and raised an alarm while rushing towards the Dhani of Meghwals. Narayan (P.W.3) and Omprakash (P.W.5) came there and confronted the accused persons, on which, they ran away snatching her gold bor (ornament worn on forehead) in the process.

The close family members were informed and the report was lodged on the next day at about 12:00 to 1:00 p.m. No cross- examination was conducted from the victim regarding the so- called delay in lodging the FIR. The primary thrust of the questions put to the victim in cross examination was that whether her bangles were broken and whether her clothes got torn during the incident. The victim stated that her clothes were torn by scuffling and snatching and she received injury on her lower lip. Evidently, the victim could not have been in a position to see the injuries, which she received on her vaginal region.

The evidence of Hadmana Ram (P.W.2), the first informant, is consistent with the evidence of the victim and corroborates her testimony to the hilt. Nothing significant was elicited in the cross examination of both the witnesses which can caste a doubt on their evidentiary worth. Therefore, we are of the confirmed view that in the instant case, not only does the statement of the victim inspire confidence but also, the same is fully corroborated by the evidence of the first informant Hadmana Ram.

The Medical Jurist, Dr. Indubala (P.W.7), stated in her testimony that she examined the victim on 05.09.2011 at 05.50 p.m. and noticed the injuries, which we have already been described above. Swabs were collected from the vulva and vagina of the victim. In cross-examination, the doctor refuted the defence suggestion that the injuries No.1 and 2 (on the vaginal area) could be self-inflicted. It may be stated here that as per the FSL report (Ex.P/20), human semen was detected on the inners (patloon) worn by the victim and the innerwear of all the three accused. The presence of injury on the lower lip and the abrasions on the private parts of the victim, who was a married woman, corroborates to the hilt her version that she was sexually violated by multiple men. Consequently, the contention of Mr. Mathur that no injuries were caused to the victim in the incident and this so called lack of injuries impeaches the credibility of her testimony, is absolutely fallacious and untenable.

The contention of Mr. Mathur that the evidence of the victim lacks corroboration from the other evidence, is also untenable for the simple reason that the victim's testimony is thoroughly corroborated by the evidence of Hadmana Ram (P.W.2) and the medical evidence as deposed by Dr. Indubala.

The witness Narayan (P.W.3) also corroborated the testimony of the complainant and the victim, inasmuch as he, stated that he and Omprakash (P.W.5) both reached the place of incident on hearing loud cries for help and in the flash of torch light, they saw Tola Ram, Nema Ram and Asu Ram running away from the spot. Asu Ram was not wearing any clothes at that time. They asked Hadmana Ram as to what had happened, on which, he gave them the details of the sexual assault on the victim. The deposition made by the independent witnesses Narayan (P.W.3) and Omprakash (P.W.5), who could not be swayed despite grilling cross-examination, lends strong corroboration to the evidence of the victim and the complainant.

The defence theory regarding the victim and Hadmana Ram being involved in an extra-marital affair was categorically refuted by both of them and also by Mangilal (P.W.11), who fervently denied the suggestion that Hadmana Ram had taken his wife to Ramdevra. On a perusal of entire cross-examination conducted from Mangilal, it is clear that not even the faintest of suggestion was given to him by the defence counsel that his wife (the victim) was involved in some kind of affair with Hadmana Ram. Another significant fact emerging from the cross-examination of this witness is that no suggestion was given to him regarding animosity between the accused persons and his family.

On a close scrutiny of the testimony of the Investigating Officer Sumer Singh (P.W.13), it is clear that no complaint was made to him or any superior police officer by the accused party during the investigation regarding they having been falsely implicated in this case. If at all there was a shred of truth in the defence theory, that the villagers remonstrated on account of the alleged illicit affair between complainant and the victim and that the false FIR was lodged by the complainant party as a face saving measure and to wreak vengeance, then the villagers would have definitely rallied to save the accused persons from the so called false prosecution. In addition to the fact that no such suggestion was given to the Investigating Officer in his cross-examination, the defence failed to examine even a single witness from the village to corroborate this conjectural theory of false implication. Therefore, we are convinced that the prosecution has proved its case as against accused-appellants Tola Ram and Nema Ram beyond all manner of doubt by leading cogent convincing evidence more particularly that of the victim and the complainant, which finds corroboration on material aspects from other sets of evidence, which we have discussed supra.

Regarding the acquittal of the accused-respondent Asu Ram by the impugned judgment and the appeals filed thereagainst by the State and the complainant, we are of the view that the omission of the name of Asu Ram in the FIR as well as in the initial statements of the witnesses examined during investigation by the Investigating Officer on 05.09.2011 leaves room for doubt that he might have been roped into the case purely on the basis of suspicion. Law is well-settled on the principle of Criminal Jurisprudence that suspicion howsoever strong cannot take place of proof. We are duly satisfied that it is not the case wherein no two views are possible regarding the culpability of the accused- respondent Asu Ram for the offence. From a threadbare perusal of the prosecution evidence, acquittal of the accused-respondent Asu Ram is definitely one of the permissible views and that too, a more acceptable one. Therefore, we are not inclined to interfere in the acquittal of accused-respondent Asu Ram as recorded by the trial court by the impugned judgment.

The appreciation of the evidence as undertaken by the trial court while rendering the impugned judgment dated 22.12.2014 convicting and sentencing the accused-appellants Tola Ram and Nema Ram as above and acquitting the accused- respondent Asu Ram is apropos and judicious. The impugned judgment dated 22.12.2014 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.25/2013 does not suffer from any infirmity either factual or legal, warranting interference therein.

Consequently, all the three appeals fail and are dismissed as being devoid of merit.