Rajasthan High Court - Jaipur
Kaptan Singh vs State on 29 January, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
JUDGMENT
Kaptan Singh Vs. State of Rajasthan
(S.B. CRIMINAL APPEAL NO.1051/2008)
S. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 3-9-2008 in Sessions Case No.67/2008 passed by Mr. Dharam Chand Jain, RHJS, Additional Sessions Judge (Fast Track) No.2 Dholpur.
Date of Judgment: January 29, 2013.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Pankaj Gupta, Amicus Curiae, for the appellant.
Mr. Amit Poonia, Public Prosecutor for the State.
BY THE COURT:
This criminal appeal under Section 374 Cr.P.C. has been filed against the judgment dated September 3, 2008 passed by the learned Additional Sessions Judge (Fast Track) No.2, Dholpur, whereby the appellant Kaptan Singh has been convicted and sentenced as under:-
U/s.376 IPC:
Rigorous imprisonment for ten years and fine of Rs.5000/-, in default to further suffer simple imprisonment for six months. U/s.306 IPC:
Rigorous imprisonment for ten years and fine of Rs.5000/-, in default to further suffer simple imprisonment for six months. U/s.342 IPC:
Rigorous imprisonment for one year and fine of Rs.1000/-, in default to further suffer simple imprisonment for one month. All sentences were to run concurrently.
2. The facts of the case are that the complainant Hakim Singh (Pw.14) lodged an FIR (Ex.P-15) on 23-3-2008 at Police Station Maniya stating therein that his daughter Vimlesh had been taken home by one Kaptan Singh (hereinafter `the accused') in the evening of 22-3-2008 on the pretext that Kaptan Singh's wife had called her. It is submitted that thereupon the accused had committed rape on Vimlesh under threat of bodily harm. It was submitted that demeaned by the rape his daughter Vimlesh aged 20 years had committed suicide on the morning of 23-3-2008 by throwing herself in front of a running train.
On the said report an FIR under sections 376 and 306 IPC and other lesser offences was registered against the accused. Body of Vimlesh was recovered from railway track and post mortem was conducted. Vaginal swab, smear slide, saliva slide as also blood slide of the deceased Vimlesh were taken and sent for examination to the Forensic Science Laboratory. Other requisite investigations were conducted and the accused was challaned before the competent court for the offences under sections 376, 306, 342, 107, and 109 IPC. After committal to the court of Sessions the accused was charged for the offences under sections 342, 376, and 306 IPC. The accused denied the charges and required to be tried.
The prosecution in support of its case examined 16 witnesses and exhibited 17 documents. The accused in his explanation under Sec.313 Cr.P.C., denied the charges and stated that the deceased had committed suicide of her own unhappy owing to her first engagement at Mohammadpura having been broken because of a dispute over dowry and then her father seeking to marry her to a man at Mathura much older than her. Three defence witnesses were also relied upon by the accused in trial before the concerned court.
3. The trial court framed three issues. The first issue was whether the accused put the deceased Vimlesh in wrongful confinement in his room? The second issue was whether the accused had committed rape on Vimlesh? The third issue was whether the deceased Vimlesh committed suicide following her rape by the accused?
4. At the outset it will be in order to record that allegations of the prosecution are shocking. However trials are to proceed with presumption of innocence of accused and the accused can only be found guilty of offences alleged from the evidence led before the trial court. In the instant case the trial court has found the accused guilty of the offences under section 376, 306 and 342 IPC. The question in this appeal is whether the conviction of the accused u/s.342, 376 and 306 IPC is sustainable?
5. Learned counsel for the accused submits that the trial court has been swayed only by the gravity of charges without evaluating the prosecution evidence and in fact the lack of it and has wrongly proceeded to convict the accused with no evidence of any probative worth to warrant the holding of the accused guilty of such serious charges. He submits that requisite evidence was not available before the trial court for convicting the accused. It is submitted that the accused and his family are extremely poor, and the appeal before this court filed as a jail appeal is being argued by an Advocate appointed by this court as Amicus Curiae. He submits that apart from loosing his liberty and being sentenced to a term of rigorous imprisonment for ten years cumulatively in respect of various offences found by trial court, the accused and his family have been robed of their social reputation and carry an unjust stigma. Rubbishing the evidence of the star prosecution witness Hakim Singh (Pw.14), the father of the deceased, counsel submits that there were embellishment and improvements in his evidence in court over his version detailed in the written report filed in the first instance. It is submitted that before the trial court it was stated by Hakim Singh that Kaptan Singh took away his daughter to his room and raped her and he was informed of the incident by Sanjay Singh (Pw.10). It is submitted that said Sanjay Singh, whose information formed the genesis of the prosecution case has turned hostile and this by itself makes the entire prosecution case unworthy of credence. It was further submitted that the father of the complainant Ninua Ram (Pw.7) has admitted that the complainant and the accused had a dispute over the land and in view of admission of enmity between the complainant and the accused the trial court ought to have treated the only evidence in the statements of Hakim Singh (Pw.14), father of deceased, and Ku.Sngita (Pw.15) sister of deceased, with caution and care and ought not have held the appellant guilty of sections 342, 376 and 306 IPC without any corroborative evidence medical or otherwise worth the name. It is further submitted that the evidence of Prakash (Dw.1), Pyare (Dw.2) and Dongar Singh (Dw.3) that the deceased was unhappy with her first engagement at Mahmoodpura broken for reasons of demand of dowry and the second engagement to a 40 years old man at Mathura and therefore committed suicide has been overlooked by the trial court without just cause. It is further submitted that the post mortem report (Ex.P-1) of deceased Vimlesh did not establish that the deceased had been raped and on the contrary it was evident from the post mortem report and the statements of Dr.Sangeeta Gupta (Pw.1), who conducted it, that there were no external injury on the body of deceased other than those caused by the train. It is also pointed out that it is an admitted position that there was nothing on record as corroborative evidence of forced sexual intercourse and the whole case of the prosecution is founded upon the bald statement of complainant Hakim Singh (Pw.14), father of the deceased, and Ku.Sangeeta (Pw.15), sister of the deceased. Counsel submits that the aforesaid two witnesses being related to the deceased, being father and sister of the deceased, were interested witnesses and in terms of the rule of prudence which solidify into an essentiality in the present case in the context of admitted enmity between the parties, the accused ought not to have been held guilty by the trial court on the weak evidence before it. Counsel has also pointed out that the FSL report of vaginal swab, smear slide, saliva slide and blood slide were also not received to establish that the deceased had in fact been subjected to any sexual intercourse forced or otherwise by the accused. It has been finally submitted that it was on record of the trial court that the accused lived in a crowded house, as his brothers, their wives and children were living there and with multiple women and children around, it was inconceivable that the rape as alleged would have been committed there by the accused in the evening of 22-3-2008.
6. The learned Public Prosecutor has on his part emphasied the evidence of the complainant Hakim Singh (Pw.14) father of deceased, and Ku.Sangeeta (Pw.15) sister of deceased and stated that both of them have stated that the deceased was perturbed and demeaned by the rape committed by the accused in the evening of 22-3-2008 and thus committed suicide by jumping before running train the following morning. It has been submitted that both the aforesaid witnesses have remained unshaken in their cross examination and there was no occasion for the trial court nor is there any before this court to disbelieve their testimony. It has been further submitted that notwithstanding the statement of Ninuaram (Pw.7), father of the complainant that the accused and the complainant had enmity over a dispute over land, this court should overlook the same as the basis of the false of allegation rape as the trial court did, because no document with regard to land dispute was filled before the trial court in defence by the accused. Further submission of the Public Prosecutor is that there was no evidence on record except the ipse dixit of the accused that he lived in a crowded house where commission of rape in the evening of 22-3-2009 was not likely or could not have been committed. It is submitted that rape had been committed as testified to by the witnesses owing to which the deceased was demeaned and dejected enough to commit suicide on morning immediately following. It is submitted that criminal culpability for offences 376 and 306 IPC would on the evidence attach to the accused and he has rightly been convicted and sentenced by the trial court.
7. Heard learned counsel for the parties and perused the impugned judgment of the trial court including other material available on record.
8. It is evident that the investigation in the present case is perfunctory and no corroborative evidence of rape, such as FSL report have been filled before the trial court with reference to vaginal swab, smear slide, saliva slide and blood slide taken of the deceased at the time of her post mortem. No proof of accused's semen on his clothes or on the clothes of the deceased has been filled. It is also true that according to statements of Dr.Sangeeta Gupta (Pw.1), who conducted post mortem of deceased, she found no external injury on her body particularly the private parts of the deceased, aside of the injuries caused by the train running over her. The doctor also stated before the court that no opinion as to rape could be given. It is also true that prosecution witness Ninuaram (Pw.7) has admitted enmity between the complainant and accused over a land dispute, even though the accused did not place any document of the case in defence evidencing the dispute with the complainant with regard to land. And the prosecutrix having committed suicide, her evidence in any form is not before the court. Yet it is equally true that the evidence of Hakim Singh (Pw.14) father of deceased and Ku.Sangeeta (Pw.15) sister of deceased before the trial court with regard to committing suicide by Vimlesh has remained unshaken and it is not denied that the deceased had died by jumping before the running train the next morning owing to the commission of rape on her by the accused. I find no substance in the submission of the counsel for the appellant that there was delay in the lodging of the FIR by the complainant vitiating the prosecution case, for the reason that the delay was not inordinate and of a mere one day. Delay stands fully explained by the dilemma of a father of an unmarried daughter who had been raped for reasons of apprehension of social opprobrium. Further time was spent in searching of the missing daughter the following morning till finding that she had in fact committed suicide. I also do not find any force in the submission that statements of Hakim Singh (Pw.14) before the court in so far as they explained in detail the allegations beyond the contents of FIR tantamounted to improvements and embellishment of the prosecution case for the reason that it is trite that a FIR is not an encyclopedia of the whole case, but only an initial information detailing the commission of a cognizable offence setting in motion the investigative machinery. The learned trial court has found that the statements of Hakim Singh (Pw.14) and Ku.Sangeeta (Pw.15) were fundamentally in line with their consistent case with regard to the accused having raped the deceased on the evening of 22-3-2008. Minor discrepancies and variations, it has been settled by the Hon'ble Supreme Court as well as this court cannot be termed as embellishment or improvements to fault the prosecution case and benefit an accused with an acquittal. Further the conduct of the accused in running away from the place of incident as found by the trial court on the evidence of Pw.14 Hakim Singh is in the nature of resgestae evidence under Section 8 of the Evidence Actsubstantive in itself. The rape on deceased Vimlesh by the accused from the evidence before the trial court stands proved as found by the trial court. The suicide the following morning was consequent to the rape and would also entail the conviction of accused under section 306 IPC, from the evidence on record. Offence under Section 342 IPC also stands proved against the appellant from the evidence on record. For affirming the judgment of the trial court reliance can be had on the judgments of the Hon'ble Apex Court, State of U.P. Vs. Krishna Master [(2010) 12 SCC 324] and State of U.P. Vs. Dharam Chand Jain [(1987) 2 SCC 641] wherein it has been held that the appellate court should give due weight to appreciation of evidence by the trial court which has the advantage of observing the demenour of the witnesses before it and the general tenor of their evidence.
9. However on the question of sentence, the disquietening absence of evidence such as FSL report of the vaginal swab, smear swab, saliva slide, blood slide taken of the deceased Vimlesh during her post mortem and report with regard to semen of accused on clothes of accused or that of the deceased, as also the evidence of Dr.Sangeeta Gupta (Pw.1) that no opinion of rape could be given, would work as mitigating circumstances. I am therefore of the view that the sentence of ten years rigorous imprisonment each for the offences u/s. 376 and 306 IPC would be excessive in the facts of the case. The ends of justice would be met if even while maintaining the conviction of accused both for the offences u/s. 376 and 306 IPC the sentence is reduced to seven years rigorous imprisonment in respect of each of the two offences. Addressing the sentence for the offence u/s.342 IPC which the trial court has put at one year is redundant as the accused appellant has already spent over five years in jail following conviction by it.
10. Therefore even while maintaining the conviction of accused for the offences under sections 342, 376 and 306 IPC, sentence in respect of offences 376 and 306 IPC is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment with a fine of Rs.500/- for each of the offences. The conviction and sentence for the offence u/s.342 IPC is maintained. All sentences to run concurrently.
11. The impugned judgment of the learned trial court dated 3-9-2008 in Sessions Case No.67/2008 stands modified as indicated above.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.