Rajasthan High Court - Jaipur
Man Singh vs State Of Rajasthan Through Pp on 27 February, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
JUDGMENT
Man Singh Vs. State of Rajasthan
(S.B. CRIMINAL APPEAL NO.517/2012)
S. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 27-6-2012 in Sessions Case No.81/2011 passed by Mr. Rajendra Kumar Sharma, RHJS, Sessions Judge, Alwar.
Date of Judgment: February 27, 2013.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Pankaj Gupta, for the appellant.
Mr. Amit Poonia, Public Prosecutor for the State.
Mr. Prakash Thakuriya, for the complainant.
BY THE COURT:
Challenge in this appeal is to the judgment dated June 27, 2012 of the learned Sessions Judge, Alwar, whereby Man Singh, the appellant has been convicted and sentenced under Section 376/511 IPC to suffer rigorous imprisonment for three years and six months with a fine of Rs.10000/-, and in default of payment of fine to further suffer rigorous imprisonment for six months.
2. It is the prosecution case that with regard to an incident of 29-12-2010, the complainant Chhote Lal filed a complaint on 10-1-2011 before the court of Judicial Magistrate No.2, Alwar, wherein it was stated that on 29-12-010, he took his wife Bina along with her younger sister Suman for treatment by a doctor at Alwar. Since the doctor was not available that evening, needing to stay the night they all went to the room of Rajesh who lived along with Man Singh in a rented room on the 60 ft.road at Alwar. It was admitted that during the night around 1 AM, Man Singh took the complainant's wife on the roof of house, while the complainant along with his sister-in-law was sleeping in the room. When complainant's wife did not return to the room for a while, the complainant came out of the room to the roof and found Man Singh having sex with his wife. Thereupon the complainant raised an alarm, whereupon Suman came out of the room. When admonished Man Singh employed with the police was alleged to have threatened the complainant. It was stated that thereafter around 4.00 AM when the complainant woke up he did not find his wife, Suman and Rajesh in the room. It was alleged that Man Singh had taken them away and since then the whereabouts of his wife were unknown.
On the complaint lodged, the learned Magistrate invoking his powers under section 156 (3) Cr.P.C. sent the complaint to PS Mahila Thana Alwar. Thereupon FIR No.6/2011 was registered and investigation commenced. During the course of investigation, the prosecutrix was recovered from his father's house but denied to be medically examined. She also denied any incident with her having happened as alleged. She later changed her version and after exculpating the appellant in her first statement under Section 161 Cr.P.C. later inculpated him in her 161 Cr.P.C. statement and additional statement under Section 161 Cr.P.C.
Statements of witnesses were recorded and necessary memos were drawn. On completion of investigation challan was filed against the appellant under Sections 376/511 IPC. In due course the case came up for trial before the learned Sessions Judge Alwar. Charge was framed under section 376 IPC against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined 13 witnesses and exhibited 9 documents. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. He got exhibited 13 documents. However no witness in defence was examined. On hearing the final submissions, the learned trial Judge convicted and sentenced the appellant as indicated herein above.
3. Heard learned counsel for the appellant, learned public prosecutor and perused the impugned judgment dated 27-6-2012 including the evidence available on record.
4. Learned counsel for the appellant submitted that the impugned judgment dated 27-6-2012 convicting the accused appellant for an offence u/s.376/511 IPC and the sentence flowing therefrom were vitiated on multiple grounds. It was submitted that the FIR was filed after a delay of 11 days; the only independent witness Pw.12 Shanti did not support the prosecution case; the situs of the offence as set out in FIR was found by the trial court to be false; the prosecutrix in her first two versions following the lodging of the FIR with a delay of 11 days had admitted that the offence as alleged had not at all taken place; the star/ material witness one Rajesh in whose room the complainant was stated to have stayed on the night intervening 29th and 30th December, 2010 was not examined; there were apparent embellishments and improvements by the prosecutrix in the course of her evidence before the trial court over her initial version as per Exhibit D-3 and D-4 and statements first made under section 161 Cr.P.C.; in spite of overwhelming evidence to dislocate the prosecution case, the learned trial court has mechanically relied upon the evidence of prosecutrix Pw.2 Bina and her sister Pw.3 Suman without noting the apparent inconsistencies in the case of prosecutrix herself; the learned trial court has glossed over its own finding that in the trial u/s.376/511 IPC the situs of incident given by the complainant/ Pw.1 Chhotelal, husband of the prosecutrix was incorrect and false, and that the trial court had itself concluded in the impugned judgment dated 27-6-2012 that evidence of Pw.1 Chhotelal was full of embellishments and that he was unreliable. Learned counsel has finally submitted without prejudiced the above contentions, that even otherwise if the whole of the prosecution evidence at the instance of Pw.2 Bina, the prosecutrix, and Pw.3 Suman, her sister were to be taken at face value no offence u/s.376/511 IPC would be made out. Reliance for this purpose has been made to the judgment of the Hon'ble Supreme Court in case of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) [(2006) 8 SCC 560].
5. Learned Public Prosecutor has submitted that the impugned judgment dated 27-6-2012 passed by the trial court is a well reasoned order and the entire defence agitated before the trial court has been considered and rejected for good reasons by the trial court.
6. Article 21 of the Constitution of India places individual liberty amongst the highest on all rights recognized under the Constitution necessary for a dignified existence. Deprivation of liberty by resort to the processes of law is undoubtedly permissible. Processes of criminal law for the deprivation of liberty of a person after finding him guilty have for time immemorial been required to establish the guilt of an accused beyond reasonable doubt. Conclusions based on lopsided emphasis on prosecution evidence without critical appreciation thereof, to the complete exclusion of defence evidence have been unacceptable to the legal processes of criminal law.
From the evidence of Pw.2 Bina, the prosecutrix on record, it is evident that in the first stance the prosecutrix had admitted, subsequent to lodging of the FIR after a delay of 11 days, that no offence as alleged by her husband had been committed. For this purpose a bare look at the documents Ex.D-3 and 4 would suffice. The prosecutrix then alleged to have been raped had also denied for her medical examination for the determination of the alleged rape on her by the accused Man Singh. Thereafter in her statements first recorded u/s.161 Cr.P.C., the prosecutrix again did not support the allegations in FIR lodged by her husband. It is only subsequently in her statements u/s.164 Cr.P.C., and thereafter in the course of her additional statement under Section 161 Cr.P.C. and evidence before the trial court that the prosecutrix proceeded to allege that the accused appellant had attempted to commit rape on her in the intervening night of 29th and 30th December, 2010. However, it is important to note that even at this stage as against the allegations in FIR and the case set up by the husband that the prosecutrix had been raped, the prosecutrix's case was that the accused appellant only attempted rape on her on the ground floor of the house and not on the roof of the house where Rajesh and Man Singh lived as tenants in one room. It is also important to note that Rajesh, who was the star witness to support the prosecution case was not examined, and the land-lady of the house Pw.12 Shanti the landladythe only independent witnessin her evidence did not support the prosecution case and stated that no untoward incident or one of an attempted rape had been committed during the intervening night of 29th and 30th December, 2010 at her house.
Pw.3 Suman, sister of the prosecutrix has no doubt supported the prosecution case before the trial court. However this was in contradiction to her first statement made u/s.161 Cr.P.C. to the police in the course of investigation.
7. Evidence of other witnesses for the prosecution is not relevant to the case because of the fact that admittedly none of them were eye witnesses to the incident nor would their evidence would be covered by Sections 6, 7 and 8 of the Evidence Act as res-gestae evidence in the facts obtaining in the present case.
8. The Hon'ble Supreme Court in case of Tarkeshwar Sahu (supra) has held that in the absence of a clear attempt to penetrate a woman, a conviction u/s.376/511 IPC would be wholly illegal and unsustainable. The evidence of prosecutrix Pw.2 Bina and her sister Pw.3 Suman even at its face value does not indicate that the accused appellant had forced himself over the prosecutrix and was on the verge of forced sexual intercourse with her. The say of the prosecutrix in her evidence before the trial court was that the accused appellant had merely groped all over her body and touched her face. It was also stated that by the prosecutrix that before the accused appellant could proceed further, she raised a hue and cry, whereupon her sister Suman, Pw.3 and the land lady Shanti Pw.12 and her husband Chhote Lal arrived on the scene and prevented the accused appellant in achieving his criminal object of raping her. The action attributed to the accused appellant by the prosecutrix cannot in the context of the evidence of prosecutrix herself entail conviction of accused appellant u/s.376/511 IPC in terms of the enunciation by the Hon'ble Supreme Court in the case of Takeshwar Sahu (supra). The Hon'ble Supreme Court in case of Tarkeshwar Sahu (supra) held thus:-
On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Section 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father Pw 1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the gumti. In this view of the matter no offence under Sections 376/511 IPC is made out.
The accused appellant would thus be entitled to an acquittal in the facts of the case of an offence under Section 376/511 IPC.
9. The question that now remains for consideration is whether from the state of evidence on record, the accused appellant can be found guilty of an offence u/s.354 IPC. For this purpose, the statement of the prosecutrix Pw.2 Bina and her sister Pw.3 Suman should inspire confidence, and the lacunae in the prosecution evidence be satisfactorily explained. This court has to factor into its consideration the 11 days' delay in lodging FIR, the denial of the allegations of Chhotelal by the prosecutrix in writing (Exhibit D-3 and D-4) and corresponding absence of allegations of any offence at the relevant time, the first statement u/s.161 Cr.P.C. of the prosecutrix, the change in the situs of the offence from the roof to the ground floor of the house, the factum of Pw.12 Shanti, the only independent witness, not supporting the prosecution case, the failure of the prosecution to produce the star witness Rajesh.
10. The Hon'ble Supreme Court has indeed held that the maxim falsus in uno falsus in omnibus does not apply in India and a witness cannot be branded as a liar. It has been held that it is the duty of the court to segregate the grain from the chaff. It has however also been held that when falsehood and truth are so intermingled that it is not possible to separate the two, it would be undesirable to rely on such evidence in a criminal case where the guilt of the accused is to be proved beyond reasonable doubt. Effectively what the Hon'ble Supreme Court has stated is that the court should be able to find a ring of truth in the evidence of a witness before placing reliance on his or her testimony in a criminal case. In my considered opinion, keeping in view the aforesaid legal enunciation with regard to appreciation of evidence and reliability, in the context of the facts of the present case it is not possible for this court to segregate the evident falsehood in the evidence of Pw.2 the prosecutrix from the truth (if at all) on the allegation of the accused appellant having groped and touched the prosecutrix all over her body on the intervening night of 29th and 30th December, 2010. For this conclusion, this court has taken into consideration the unexplained delay of 11 days in lodging the FIRand not even by the prosecutrix; writings of the prosecutrix Ex.D-3 and D-4 before the police in the first instance after the lodging of FIR negating allegations of rape and not stating that her modesty had been outraged, and the first statement of the prosecutrix u/s.161 Cr.P.C. which were subsequently overturned and deviated from in statements u/s.164 Cr.P.C. and additional statements recorded u/s.161 Cr.P.C. The inconsistent stands taken by the prosecutrix herself during the course of the investigation and trial renders her evidence very suspect and hence unreliable. This unreliability is further compounded by the prosecutrix having filed an affidavit during pendency of appeal, which was allowed to be taken on record by the order of this court passed on February 6, 2013. It has been stated in the affidavit:-
1. ?? ?? ???? ??? ???? ??????? ?? ?????? ?????? ?? ?? ??. ??. ??. ?????? 6/2011 ?????? 18-1-2011 ?? ?????? 29-12-2010 ?? ???? ???? ????? ???? ????? ???? ??? ????????? ?? ??????? ???? ????? ??!
2. ?? ?? ???? ????? ????? ??????? ???? ???? ?? ?????? ?????? 22-1-2011 ?? ????? ?????? ?????? ???? ?? ???????? ?? ?? ???? ????? ?????? ?? ??? ?? ???? Ex.D/4 SHO ????? ???? ????? ???? ?? ???????? ?? ?? ??? ???? ?? ?? ???? ??? ??? ???? ?? ???????? ????????? ?????? ???? ???? ?? ?? ??!
3. ?? ?? ???? ????? ?? ?????? ?????? 22-1-2011 ?? ??? ???????? ?? ???? ???? 161 Cr.P.C. ??? ???? ???? ?? ????? ?? ???? ????????????? ?? ??? ????? ?? ?? ???? ??? ????????? ?? ??? ??? ????? ???? ???? ???? ?????? ?? ???? ???? ?? ?????? ???? ??? ???? ?????? ?? ???? ?????? ???? ?????? ???? ??????? ???? ?? ???????? ???? ?? ??? ???? ????? ?? ???? ????????? ?? ??????? ???? ???? ?? ??? ????? ???? ???!
4. ?? ?? ???? ?????? ???? ?? ??????????? ?? ???? ? ?????? ?? ???? ??? ???? ?????? 17-10-2011 ?? ???? ????? ?????? ?? ?????? ???? ??????? ???? ?? ???? ?? ??? ????????? ?? ??????? ???? ???? ???!
5. ?? ?? ?? ??? ???? ??? ???? ??? ???? ??? ??? ???? ?? ???? ?????? ?? ??? ???? ?? ???? ?? ??? ??? ????? ???? ???? ??? ?? ??? ???? ??? ?? ????????? ?????? ???? ??? ??? ????? ???? ???? ??? ?? ?? ???? ?????? ?????? ?? ?? ????? Ex.D/4 ?? ???? ?? ????? ???? ???? ???? ?? ???? ?????? ?? ??? ???? ????? ? ??????????? ???? ???? ??? ????????? ?? ???? 376/511 ??. ??. ??. ?? ???? ?????? 517/2012 (??????? ???? ?????) ??? ????????? ?? ???? ????!
11. In [(2008) 10 SCC 69] Lalliram Vs. State of M.P., the Hon'ble Supreme Court has held that where the statement of the prosecutrix are inconsistent and there is no medical evidence of the offence the accused would be entitled to an acquittal. In Suresh N. Bhusare Vs. State of Maharashtra [(1991) 1 SCC 220] the same principle has been enunciated.
12. Consequently, this court in the state of evidence on record cannot uphold the order of conviction of the accused appellant for the offence under Section 376/511 IPC or alternatively even for an offence under Section 354 IPC. Therefore the impugned judgment dated 27-6-2012 passed by the trial court Sessions Judge Alwar is quashed and set aside. The accused appellant Man Singh is acquitted of the offence under section 376/511 IPC. He is on bail, and need not surrender. His bail bonds are discharged.
13. The appeal would stand allowed accordingly.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.