Rajasthan High Court - Jodhpur
Mangej Singh @ Manga Singh vs State on 16 September, 2017
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 860 / 2012
Mangej Singh @ Manga Singh
S/o Gurbachan Singh, by caste Jat sikh
R/o Norangdesar, P.S. Hanumangarh Town
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
S.B. Criminal Appeal No. 977 / 2013
Baljeet Kour W/o Mangej Singh @ Manga Singh
by caste Jat Sikh R/o Norangdesar, P.S. Hanumangarh Town
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.S. Gill
Mr. Mahaveer Bishnoi
For Respondent(s) : Mr. M.S. Panwar, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment 16/09/2017 The instant criminal appeals have been filed by the accused- appellants Mangej Singh and Baljeet Kaur Under Section 374 (2) Cr.P.C. against the judgment dated 23.07.2012 passed by (2 of 12) [ CRLA-860/2012] Additional Sessions Judge, Raisingh Nagar in sessions Case No. 29/2011 by which the learned Judge convicted and sentenced the accused-appellants as under:-
Accused-appellant Mangej Singh :
1. U/s 376 IPC- To eight years rigorous imprisonment with a fine of Rs. 2000/-, in default of payment of fine, to further undergo one month rigorous imprisonment.
2. U/s 363 IPC - To three years simple imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo one month simple imprisonment.
3. U/s 366 IPC- To three years simple imprisonment with a fine of Rs. 2000/-, in default of payment of fine, to further undergo two month simple imprisonment.
Accused-appellant Baljeet Kaur :
1. U/s 376 read with 120 (B) IPC- To seven years simple imprisonment with a fine of Rs. 2000/-, in default of payment of fine, to further undergo two month rigorous imprisonment.
2. U/s 363 IPC - To three years simple imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo one month simple imprisonment.
3. U/s 366 IPC- To three years simple imprisonment with a fine of Rs. 2000/-, in default of payment of fine, to further undergo two month simple imprisonment.
All the sentences were ordered to run concurrently. The brief facts of the case are that on 02/07/2011 complainant Gurdeep Singh (PW/2) filed a written statement at police station Muklawa (Ex.P/4) in which he alleged that he was working in Gurudwara Budajohad and he resided in quarters of Gurudwara. On 02.07.2011 he filed a missing report of his (3 of 12) [ CRLA-860/2012] daughter at police station Muklawa. He along with his family members searched the missing girl, but they could not find her. It is alleged that Jangir Singh and Paramjeet Singh both informed him that on 01.07.2011 they saw his daughter alongwith Mangej Singh and Baljeet Kaur. It was further alleged that his daughter has been enticed and induced by Mangej Singh and he wants to marry his daughter. It was further alleged that wife of Mangej Singh was helping the accused Mangej Singh. On this written report a formal FIR (Ex.P./5) was registered for offences under sections 363, 366 IPC. The police started the investigation and the prosecutrix was recovered alongwith the accused appellants Mangej Singh and Baljeet Kaur by the police on 06.07.2011. The statement of prosecutrix was recorded by the police. The police arrested the accused appellants on the next date i.e. 07.07.2011.
After due investigation, police filed a challan against two accused persons namely Mangej Singh and Baljeet Kaur in the Court of Civil Judge (Junior Division) and Judicial Magistrate (First Class) Raisingh Nagar. Later on, this case was transferred to the Court of Additional Sessions Judge, Raisingh Nagar where the charges were framed against the accused appellants.
At the trial, the prosecution examined as many as 11 witnesses in all and exhibited certain documents. Thereafter the statement of the accused persons were recorded under section 313 Cr.P.C. On the defense side, no statement was recorded.
At the conclusion of the trial, the learned Additional Sessions Judge Raisingh Nagar vide judgment dated 23.07.2012 (4 of 12) [ CRLA-860/2012] convicted accused appellants as mentioned earlier. Against this judgment both the accused appellants have preferred the separate appeals.
The learned counsel for the accused-appellants has vehemently argued that a false story has been roped against the accused appellants as no such occurrence has taken place. The statement of prosecutrix (PW/1) shows that no such type of occurrence has taken place. If anything has happened, then it was with the consent of prosecutrix. It was further argued that there are material contradictions and omissions of facts made in the statement of prosecutrix. Counsel has further submitted that the medical report in this regard is also totally negative and the accused appellants are innocent and therefore they are liable to be acquitted.
Per contra, learned Public Prosecutor argued that this is a well proved case against the accused appellants and no lenient view can be taken against the accused appellants.
I have considered the arguments from both the sides and perused the impugned judgment passed by the learned trial court as also gone through the record of the case.
This is not in dispute that FIR for the first time was registered on 06.07.2011 and the occurrence has taken place on 01.07.2011. In the First Information Report, it has been mentioned by the complainant Gurdeep Singh that previously on 02.07.2011 he gave an information to the Police about missing of his daughter but from the perusal of the record it is apparent that (5 of 12) [ CRLA-860/2012] no such type of missing report has been filed. Therefore the version of the complainant was doubtful whether he reported any missing report, before the Police prior to filing of the FIR or not.
In support of prosecution, one school certificate was produced in which the date of birth has been mentioned has 27.03.1994 so as on the date of incident, the age of prosecutrix was 17 years and 4 months.
Although the age of prosecutrix is said to be 17 years and 4 months but it is to be seen whether the conviction of the appellants as recorded by the trial court is sustainable or not.
The prosecutrix (PW-1) in her statement has mentioned that prior to this occurrence, one day Baljeet Kaur called her and when she entered in the house Mangej Singh was present there. He had committed rape with her about 8-9 days ago. After this occurrence on 01.07.2011 again Baljeet Kaur came and called her when she went there Mangej Singh was also present there as before. Both the accused enticed her and took her to Jaitsar. Thereafter they went to Suratgarh and afterwards they went to Dabwali where again Mangej Singh committed rape with her. It has been further stated that on the next day they went to Kalia Mandi, then they came back to Sri Gangangar, post that they went to Ridmalsar and afterwards they came to 3 PS. It is stated that police personnel caught hold of her and brought her to Police station Muklawa. She was accompanied by the accused-appellant. The police took both the accused appellants along with her to police station. But in cross examination she admitted that at Buda (6 of 12) [ CRLA-860/2012] Johad that day there was some festival at Gurudwara where so many people gathered, but she did not narrate the incident to anybody. She went along with the accused persons to Jaitsar, Suratgarh and Dabwali. In the bus there were so many passengers, but she did not raise any hue and cry. She further admitted that when the first incident happened, she had not narrated the incident to her father, mother and not to anyone else. She has further alleged that she travelled with the accused appelalnts for about six days, but she did not shout or raise any hue and cry. The prosecutrix was confronted with her previous statement marked A to B in which she has mentioned that one month ago accused Baljeet Kaur called her but in statement Ex. D/1 she has mentioned that she herself went to the house of accused Mangej Singh where she was abused by accused but this portion was now denied by her. Likewise, she was confronted with the previous statement of being threatened by accused, but the prosecutrix totally denied the same. She was also confronted with her statement regarding rape committed by the accused, but in her previous statement she has not mentioned this fact and stated that she had narrated this incident to the police, but the police has not recorded her statement. In her previous statement, the prosecutrix had stated that accused told her that he will keep her in a very good condition and that's why she went with the accused. However, in her statement, the prosecutrix denied this fact. She further admitted that at village Dabwali and Kaliya Mandi, she and accused both searched for work but no work was (7 of 12) [ CRLA-860/2012] found, then after 2-3 days, they came back to Sriganganagar.
PW/2 Gurdeep Singh, who is father of prosecutrix who lodged the First Information Report, in his cross-examination has mentioned that Jangir Singh and Paramjeet Singh met him on 05.07.2011 but on that day he did not lodge any report and on the next day i.e. on 06.07.2011, he went to police station and lodged the report. He further mentioned that he did not go to any place for searching his daughter. He stated that at 3 PS accused and his daughter were present, but police was not there. He was confronted with his previous statement, in which he has mentioned about rape committed by accused, but he said that he does not know about this fact.
PW/3 Paramjeet Singh who is relative of prosecutirx stated that father of prosecutrix is his maternal father-in-law. He saw the prosecutrix alongwith accused on 05.07.2011 but he did not narrate this incident to any of the prosecutrix's family and for the first time, he narrated this fact to Gurdeep Singh on 05.07.2011.
PW/10 Dr. Badri Ram examined the prosecutrix. In his report, he has mentioned that he did not find any injury either internal or external or on the private parts of the prosecutrix. He further stated for proving whether she has undergone sexual intercourse recently or not, the vaginal swab and smear slides sample for detention of human spermatozoa was sent to Forensic Science Laboratory. In the cross-examination, the doctor has admitted that she was fully mature after examination and he has not found any injury on the body of prosecutirix.
(8 of 12) [ CRLA-860/2012] PW/5 Balwant Singh who is said to be Malkhana Incharge stated that he sent four packets to FSL. He received these packets from the FSL back with some objection by the FSL department.
PW/8 Abdul Qayyum who investigated the matter has stated that he could not find any traces about the incident. PW/9 Dilip Kumar also mentioned that he deposited the sample to FSL but some objection was mentioned by FSL Department upon which he again sent the sample to the FSL. It is relevant to mention that no FSL report has been produced on record by the prosecution.
On scrutiny of evidence, it appears that the conduct of prosecutrix is suspicious and highly doubtful and the story of rape by the prosecutrix is not corroborated by the medical evidence. Further no FSL report has been filed by the prosecution to prove the said offence. There is nothing in evidence to suggest that she either offered any resistance or raised an alarm. On the contrary, it appears that she accompanied the appellants in the bus and also searched for job with him. Thus, it can safely be concluded that the prosecutrix was a willing party to go with the appellant, else she would have certainly offered resistance or have raised an alarm immediately after she became aware of the ill intention of the appellant Mangej Singh. It is evident that she remained with the appellant for 06 days and during this period she never complained to any one about the incident.
The Apex Court in Shyam & Anr. v. State of Maharashtra reported in AIR 1995 SC 2169, while dealing with a case of similar nature, observed as under :
(9 of 12) [ CRLA-860/2012] "....The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier, thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyarn, the appellant on her own and in that sense there was no taking out of the guardianship of her father. The culpability of neither Shyam, A-1 nor that of Suresh, A-2 in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 IPC would thus fail. Accordingly, the appellants deserve acquittal...".
Hon'ble Supreme Court in yet another case of Radhu Vs. State of Madhya Pradesh reported in (2007) 12 SCC 57 has held as under :-
"If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be (10 of 12) [ CRLA-860/2012] a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
... .. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place."
This Court in the case of Kamrujma Vs. State reported in 2008 (2) Cr.L.R. (Raj.) 1753 in similar circumstances of the case, has held as under :-
"After taking into consideration the aforementioned material facts of the prosecution case and the manner in which the alleged incident had taken place, particularly the description given by the prosecutrix (11 of 12) [ CRLA-860/2012] herself, in my view the probabilities factor operate against the prosecutrix. In the case of present nature where the incident has taken place during the day; the prosecutrix went to the room of the accused appellant merely on his call; thereafter the sexual intercourse had been done by the accused appellant, a detailed narrated of which has been given by the prosecutrix herself before the trial court; her going away from the place of incident through the window/ the report not being lodged promptly; and the explanation for delay sought to be given by the prosecution side, is in contradiction to the statement of prosecutrix herself; evidence on record in respect of age of prosecutrix etc, it is difficult to rely upon the prosecution case and same cannot be said to be proved beyond reasonable doubt. In the fact situation, the benefit deserves to be given to the accused appellant."
In view of above discussion, since the testimony of the prosecutrix does not inspire confidence nor it stands corroborated by any medical evidence, therefore the conviction of appellants for offence under Section 376 IPC is not sustainable in the eye of law. The version of the prosecutrix that she was subjected to forceful intercourse without her consent which contains material contradictions, improvements and omissions, also does not inspire confidence and cannot be believed. Even the medical evidence, does not support the prosecution story, inasmuch as Dr. Badri Ram who examined the prosecutrix did not find any external injury on her body and he has not given any opinion in regard to rape. It (12 of 12) [ CRLA-860/2012] must, therefore, be held that no reliance can be placed upon the testimony of the prosecutrix. Thus, the argument of the learned counsel for the appellants that the prosecutrix was a willing party to go with the appellant on her own and the culpability of the appellant, is liable to be accepted.
Considering the above facts and circumstances, I feel that Prosecutrix is not a truthful witness at all. She has been changing her statement upon cross questioning time and again, therefore her testimony cannot be relied upon.
In view of above, both the appeals are allowed. The finding of conviction and sentence recorded by the learned Additional Sessions Judge, Raisinghnagar for offence under Section 363, 366, 376, 376/120B against the accused appellants Mangej Singh @ Manga Singh and Baljeet Kaur is set aside and they are acquitted of the charges. Both the accused appellants are on bail. Their bail bonds stand discharged.
(MANOJ KUMAR GARG)J. bjsh