Rajasthan High Court - Jaipur
Deva Ram vs State Of Rajasthan Through Pp on 20 September, 2018
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 1025/2013
Devaram S/o late Shri Ghasiram, B/c Balai, R/o Village Kolyan,
Police Station Jamvaramgarh, District Jaipur.
(Appellant/appellant at present confined in Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan Through Pp
----Respondent
Connected With S.B. Criminal Appeal No. 1026/2013 Smt Shakuntala W/o Shri Heera Lal B/c Balai R/o Village Ladipura Police Thana Jamwaramgarh District Jaipur. (Accused/appellant at present in Central Jail, Jaipur)
----Appellant Versus State Of Rajasthan Through Pp
----Respondent S.B. Criminal Appeal No. 1710/2017 Vishram @ Basram S/o Bachhuram @ Babu Lal B/c Gurjar , R/o Tholai, Police Station, Jamwa Ramgarh, Distt. Jaipur. Accused Appellant Is Confined In Central Jail, Jaipur
----Appellant Versus State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. Vijay Choudhary in CRLA
No.1025/2013 & CRLA No.1026/2013
Mr. B.M. Gurjar in CRLA
No.1710/2017
For Statement : Mr. Sudesh Saini, PP
For complainant(s) : Mr. G.L. Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
(2 of 11) [CRLA-1025/2013]
20/09/2018
1. Appellants Shakuntala and Devaram have preferred these appeals aggrieved by judgment dated 25.09.2013, and order dated 26.09.2013, vide which they have been convicted by Additional Sessions Judge No.2, Jaipur District, Jaipur in Sessions Case No.08/2013 (17/2011). Appellants Devaram and Shakuntala have been sentenced for two years rigorous imprisonment and fine of Rs.2,000/- and two months simple imprisonment on non payment of fine for offence under section 344 IPC, for offence under Section 366-A IPC, they have been sentenced for six years rigorous imprisonment and fine of Rs.3,000/-, on non payment of fine to further undergo three months simple imprisonment, for offence under Section 376 I.P.C. they have been sentenced for seven years rigorous imprisonment and fine of Rs.5,000/-, on non payment of fine to further undergo four months simple imprisonment, for offence under Section 376 (2)(g)/109 ten years rigorous imprisonment and fine of Rs.10,000/-, on non payment of fine to further undergo six months simple imprisonment. Appellant Vishram @ Basram has preferred a separate appeal aggrieved by judgment and order dated 11.07.2017 passed by Additional Sessions Judge No.2, Jaipur District Jaipur, whereby appellant has been convicted for offence under Section 344 and 376(2)(g) IPC and has been sentenced two years rigorous imprisonment and fine of Rs.3,000/- for offence under Section 344, on non payment of fine to further undergo two months simple imprisonment, ten years rigorous imprisonment for offence under Section 376(2)(g) and fine of Rs.10,000/- and on non payment of fine to further undergo six months simple imprisonment.
(3 of 11) [CRLA-1025/2013]
2. As all the appeals arise out of single complaint lodged by the prosecutrix, for the sake of convenience all the appeals are decided by this common order.
3. In brief, the factual matrix of the case are that a complaint was lodged by the prosecutrix on 05.05.2010, which was sent to the Police Station for registration. F.I.R. was consequently registered on 02.06.2010 against nine persons. Police after due investigation submitted charge-sheet against six persons and kept the matter pending under section 173(8) Cr.P.C. against two persons.
4. It is alleged in the complaint that on 18.04.2009, when mother of prosecutrix was caught by her husband Heeralal when she was talking on mobile with someone, a dispute took place between the two and mother of prosecutrix who is appellant- Shakuntala in this case left her matrimonial home alongwith prosecutrix and deceased on 25.04.2009. It is mentioned in the complaint that after going to different places, they reached Merta City and stayed at Prince Hotel where Devaram and Sadhu Ram committed rape with her sister and prosecutrix. Police recovered them the next morning. She alongwith her mother and sister were taken by her maternal uncle but she could not inform her maternal uncle about the incident. It is mentioned in the complaint that appellants Shakuntala and Devaram took the prosecutrix and her sister to village Koliyan from there they took them to Heerawala, Jamwaramgarh. They took a room on rent there also both the sisters were subjected to rape then the prosecutrix and her sister were taken to Brahmpuri, there also Devaram raped the prosecutrix and her sister. Appellants Shakuntala and Devaram then took the prosecutrix and her sister (4 of 11) [CRLA-1025/2013] to Kunda, Amer where they were kept in confinement for one month. From there they were taken to Heerawala and were kept in the house of Sadhu Ram and Mangilal where they were forced into prostitution and Babulal Gurjar, Raju Meena, Chanda Meena, Sitaram Gurjar and Raju Meena gang raped them on the instigation of Shakuntala and Devaram.
5. It is also alleged that Shakuntala and Devaram stayed together as husband and wife. Appellant Devaram committed rape with the prosecutrix and her sister. He used to call Vishram and Babu Gurjar and they also raped them. It is mentioned that sister of prosecutrix was fed up with her life and she committed suicide on 06.03.2010. Prosecutrix then returned back to her father. Police after due investigation filed charge-sheet against Devaram, Shakuntala, Sitaram, Chanda @ Gulab Chand, Raju and another Raju. Matter was kept pending under Section 173(8) Cr.P.C. against Babulal and Basram.
6. Trial Court after recording the statement in Sessions Case No.08/2013 acquitted Raju @ Rajesh s/o Nanagram, Raju s/o Prabhu Ram, Sitaram s/o Heea Lal and Chanda Lal @ Gulab Chand S/o Ram Ratan. Shakuntala and Devaram were convicted and they have been sentenced as herein above mentioned.
7. A supplementary charge-sheet was submitted against Basram and Babulal and a Sessions Case No.12/2015 was registered. The facts of that case are akin to the facts in Sessions case No.08/2013. Both Basram and Babulal were charged for offence under Section 344, 376(2)(g) IPC. Appellant Basram and Babulal denied the charges and sought trial. Prosecutrix did not identify Babulal on which he was acquitted, however, Basram was convicted for offence under section 344, 376(2)(g) IPC and was (5 of 11) [CRLA-1025/2013] sentenced as herein above mentiond aggrieved by which the present appeal has been preferred.
8. It is contended by counsel for the appellants that there is an inordinate delay in lodging of complaint. As per the complaint, rape was initially committed by Sadhu Ram and Devaram at Prince Hotel in Merta City on 28.04.2009, whereas, complaint has been lodged on 05.05.2009 i.e. almost after one year of the alleged incident.
9. With regard to delay, reliance has been placed on "Ramdas and Ors. vs. State of Maharashtra" (2007) 2 Supreme Court Cases 170, wherein the Apex Court held that delay in lodging of report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case. The Apex Court gave benefit of doubt to the accused in a case under Section 376 IPC when F.I.R. was lodged after eight days of the alleged occurrence, for which no satisfactory explanation was rendered.
10. It is contended that complaint was lodged against nine persons. Police initially submitted charge-sheet against six persons. Trial Court acquitted four and convicted appellant Shakuntala and Devaram, thereafter, supplementary charge-sheet was filed against appellant Vishram @ Basram and Babulal. Trial Court acquitted Babulal. It is argued that out of nine persons against whom there was allegation of gang rape, five persons have been acquitted. Charge-sheet was not filed against Sadhu Ram. It is argued that the case of appellant-Devaram and Vishram is akin to that of the persons who were acquitted.
11. It is contended that complainant-prosecutrix in this case when she was recovered by the police on 29.04.2009, from (6 of 11) [CRLA-1025/2013] Merta City did not level any allegation with regard to rape by appellant-Devaram.
12. Further it is contended by counsel for Devaram that since Devaram was helping Shakuntala in her matrimonial dispute and had even lodged complaint to the Chief Minister and was pursuing case of Shakuntala, father became inimical to appellant and used the prosecutrix as a tool to lodge a false case against appellant. In this regard my attention has been drawn toward Ex.D-12, complaint sent to the Chief Minister, which is a complaint lodged against Anoop Singh for not properly investigating the case filed by Shakuntala against her husband and the order passed against Anoop Singh for dereliction of duty. Police Personnel was punished in departmental inquiry hence, the entire police station became enimical toward him.
13. It is also contended that prosecutrix met her father after commission of suicide by her sister and a separate complaint was filed by her father Heera Lal at police station Chandwaji after seventeen days of suicide. Therein also there was no allegation with regard to rape against the appellant Devaram and Vishram @ Basram. It is also contended that there was no mark of injury on the person of prosecutrix so as to establish that any forcible act was committed against her.
14. It is also contended that there are material contradiction in the statement of the prosecutrix. Reliance has been placed on "Narender Kumar vs. State (NCT of Delhi)", (2012) 7 Supreme Court Cases 171, wherein Apex Court has held that conviction can be based on sole testimony of prosecutrix without any corroboration, if it inspires confidence. If Court finds the version of prosecutrix improbable and devoid of trust, same is (7 of 11) [CRLA-1025/2013] to be rejected. It was also observed that the statement suffers from serious infirmities, inconsistencies and deliberate improvements on material point, reliance cannot be placed thereon.
15. Reliance has also been placed on "Krishan Kumar Malik vs. State of Haryana" (2011) 7 Supreme Court Cases 130, wherein accused was acquitted as there were several lacunae in the evidence of prosecutrix and story was not corroborated by any other evidence. There were discrepancies and omissions in F.I.R. Name of accused was not mentioned even when prosecutrix was aware of his name. Court held that such omissions shake credibility of the prosecutrix.
16. It is contended that the allegation levelled against mother are at the face of it false as mother herself had filed a complaint at police station with regard to threat against her daughter which was signed by prosecutrix herself and in that report, prosecutrix had given statement that she is under threat of some boys. Therein also there was no allegation with regard to rape. This F.I.R. was lodged on 10.01.2010 which is Ex.D-9 and the statement of prosecutrix recorded in that complaint is Ex.D-8.
17. It is contended that in the missing persons report filed by the father of prosecutrix also statement of prosecutrix was recorded which is Ex.D-12, wherein she did not level any allegation with regard to kidnapping against Devaram and there was no allegation that she was subjected to rape by Sadhu Ram and Devaram. That statement was recorded immediately after she was recovered by the police on 29.04.2009. Concocted story has been cooked up by the prosecutrix after more than thirteen months of the alleged incident.
(8 of 11) [CRLA-1025/2013] 18. Counsel for the complainant and learned Public
Prosecutor have opposed these appeals. Their contention is that prosecutrix is a witness of sterling worth. There is no reason why she would implicate her mother. It is also contended that when prosecutrix has levelled allegation of gang rape, the burden shifts on the accused under the 113A of the Evidence Act.
19. I have considered the contentions.
20. In the present case, complaint has been lodged on 05.05.2010 i.e. after an inordinate delay. Prior to lodging of this complaint by the prosecutrix, a complaint was lodged by her father on 23.03.2010. In the complaint filed by father of prosecutrix, there was no allegation of rape.
21. Yet another piece of evidence which is very relevant is filing of complaint by Shakuntala at Police Station, Jamvaramgarh on 10.01.2010 Ex.D-9 regarding harassment of her younger daughter by few boys. This complaint bears signatures of the deceased. Thereafter statement of the deceased was also recorded which is Ex.D-8, wherein also she has levelled allegation against some boys. The allegation that appellant Shakuntala forced her daughters to have relations with others appears to be a false allegation to implicate Shakuntala.
22. It is also important to note that when the first missing person report was lodged, by the father of the prosecutrix. Shakuntala alongwith her two daughters was recovered by the police. Statement of prosecutrix was recorded as Ex.D-12, wherein she mentioned that she left house of her father and after going to different places i.e. Gatwara, Shahpura, Ajeetpura, Chomu, Ganganagar, reached Merta city where a boy named Surendra got a room booked for them at Prince Hotel. It is (9 of 11) [CRLA-1025/2013] specifically mentioned in her statement that no untoward incident took place with them at Prince Hotel. Prosecutrix has now built up a case that two rooms were taken at Prince Hotel and during night appellant-Devaram and Sadhu Ram committed rape with the girls. The allegations are now levelled after a lapse of more than a year which cannot be believed.
23. Further not reporting to her father about rape when the first complaint was filed and now levelling allegation against eight persons with regard to rape out of whom police did not submit charge-sheet against Sadhu Ram and others except Devaram and Basram stand acquitted by the Court below shows that the prosecutrix has cooked up a case. She herself has admitted that she had her grievance only against Devaram and Shakuntala and name of others have been added to make a good case. Court below has clearly erred in relying of statement of such witness who has not explained the reason for the inordinate delay for lodging of F.i.R. and prosecutrix who has herself deposed that she has named some persons who have not committed any wrong just to make it a good case is bad in law.
24. The allegation has also been levelled against Babulal, Vishram Gurjar, Devaram, Sadhu Ram Gurjar, Chanda Meena, Raju Meena and another Raju Meena with regard to rape. In cross- examination, this witness refused to identify Babulal Gurjar and, consequently, he was acquitted by the Court. Other co-accused also stand acquitted. Prosecutrix in her cross-examination has admitted that portion marked as A to B in statement recorded under Section 161 Cr.P.C.. Ex.D-1 was given by her to the police. In portion A to B, prosecutrix has mentioned that except Shakuntala and Devaram, no one has done any forceful or wrong (10 of 11) [CRLA-1025/2013] act with her and that she has named other persons to make a good case. This witness thus looses credibility and from her own versions, it is apparent that she can implicate anyone for making out a good case.
25. As far as accused-Basram is concerned, since prosecutrix herself has mentioned that she has named the other persons to make out a good case, the conviction of Basram is bad in law. Other co-accused against whom there was allegation of rape stand acquitted.
26. The statement of prosecutrix shows several lacunae. There are serious contradiction in her statement and she has made material improvement after filing of the belated complaint. Applying "Rai Sandeep Alias Deepu vs. State (NCT of Delhi)", "Narender Kumar vs. State (NCT of Delhi)", "Krishan Kumar Malik vs. State of Haryana" and "Ramdas and Ors. vs. State of Maharashtra", conviction cannot be sustained
27. In view of the above the appeals are allowed. The judgment and order passed by the trial Court is quashed and set aside. Appellants are acquitted of the charges levelled against them. They are in jail, they be set at liberty forthwith, if not required in any other case or for any other purpose.
28. Appellants are directed to furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on (11 of 11) [CRLA-1025/2013] receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
29. Record of the Court below be returned forthwith.
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