Rajasthan High Court - Jaipur
Bhika Ram vs State Of Rajasthan on 25 January, 2001
Equivalent citations: 2001CRILJ2123
ORDER Sunil Kumar Garg, J.
1. All these three appeals are being decided by common judgment as they have been preferred by the abovenamed three accused-appellants against common judgment and order dated 17-3-1999 passed by the learned Additional Sessions Judge, Sojat, District Pali in Sessions Case No. 2/ 1996, by which he convicted and sentenced the accused-appellants in the following manner :-
Name of the accused- Convicted Sentence awarded appellant under section 1. Bhika Ram 376 IPC Seven years' RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further un- dergo, three months' imprisonment. 2. Munni Devi ) 376 read with Seven years' RI and to pay fine of Rs. 1000/-, 3. Veena @ Kiran ) 109 IPC in default of payment of fine, to further un- dergo, three months' imprisonment. 2. The facts giving rise to these three appeals, in short are as follows :-
On 7-10-1995, P.W. 2 Bhanwarlal lodged a written report Ex. P/3 before P.W. 7 Kanhaiyalal, SHO, Police Station, Bagdi-nagar, District Pali stating inter alia that his house is situated near the bus stand in village Murdawa and on one side of his house, there is house and chakki of the accused-appellant and near the houses of both of them, there is a Primary Health Centre. It is further stated in the report that he lived in the village Chandawal, where he does the work of blacksmith. His daughter P.W. 8 Gulab (hereinafter referred to as the prosecutrix) was living with his mother and the age of the prosecutrix was about 12-13 years. It is further stated in the report that nearabout one month back he went to meet his brother Joraram at Jetaran and then he came to know that his daughter prosecutrix has become mad and his son P.W. 5 Jeevaram has gone to village Murdawa to take her and thereafter, his wife and brother-in-law also went to the village Murdawa and they took her back to village Chandawal and when he saw the prosecutrix at village Chandawal, he found that she was mad and, thereafter, finding that she was under the influence of Devta, she was taken to Hariyadhana (Bilara) at the place of Ratanji Bawji, where he stayed for five days and when no improvement was made in her condition, the Pujari told him to take her to Mandabada. Thereafter, he took his daughter (prosecutrix) to Chandawal and on that day accused-appellant-Kiran and Munni came there and they gave bottle of medicine to the prosecutrix, upon this, she became excited and she told them that run away otherwise she would broke their heads, as they have ruined her by giving something and her image was ruined. It is further stated in the report that even then he thought that prosecutrix was under the influence of madness and, thereafter, he took her to Manda, where she told that accused-appellant-Kiran exhibited blue films to her and also took her naked photos, after giving some drugs to her and she used to cry and told that she and her father also had reputation. It is further stated in the report that thereafter, he came back to his village from Manda and told to the villagers about his daughter prosecutrix Gulab and villagers told that prosecutrix wandered crying in the whole village and they found that she was under the influence of Devta. It is further stated in the report that on the next day, accused-appellant-Bhika Ram came to his house and told that if young girl would be kept alone, then such things would happen and, thereafter, father and mother of the accused-appellant-Bhikaram came at Chandawal and told that they met prosecutrix and offered Rs. 20,000/- and told that if their son had committed any mistake, he be pardoned. Thereafter, he came to know that his daughter was not under the influence of Devta, but some sin was hidden and thus, these persons have committed sin after giving some drugs to his daughter prosecutrix. It is further stated in the report that accused appellants-Munni and Kiran gave some drugs to the prosecutrix and, thereafter, her naked photos were taken and thus, her mental condition has become deteriorated and this incident has happened one and half months back and since he was under the impression that she was under the influence of Devta, the report could not be lodged earlier and the same is lodged now with some delay.
On this report, police registered the case FIR Ex. P/4 for the offence under Ss. 328 and 384, I.P.C. and started investigation.
During investigation, the prosecutrix P.W. 8 Gulab was got medically examined by P.W. 6 Dr. Dharam Chand Jain and her medical examination report is Ex. P/5 and the report by which her age was determined is Ex. P/6, where the doctor has opined that her age was from 16-18 years on the date of examination i.e. on 24-11-1995.
After usual investigation, the police submitted challan against the accused-appellant-Bhikaram for the offence under Section 376, I.P.C. and against accused-appellants-Munni and Kiran for the offence under Section 376 read with Section 109, I.P.C., before the Court of Magistrate and from where the case was committed to the Court of Session.
On 12-8-1997, the learned Additional Sessions Judge, Sojat framed charges against the accused-appellant-Bhikaram for the offence under Section 376, I.P.C. and against accused-appellants-Munni and Kiran for the offence under Section 376 read with Section 109, I.P.C. The charges were read over and explained to the accused-appellants. They denied the charges and claimed trial.
In support of its case, the prosecution examined as many as nine witnesses and got exhibited several documents. Thereafter, statements of the accused-appellants under Section 313, Cr. P.C. were recorded. In defence, three witnesses were produced and some documents were also got exhibited.
After conclusion of the trial, the learned Additional Sessions Judge, Sojat through his judgment and order dated 17-3-1999 convicted the accused-appellant-Bhikaram for the offence under Section 376, I.P.C. and accused-appellants-Munni and Kiran for the offence under Section 376 read with Section 109, I.P.C. and sentenced each of them in the manner as stated above.
Aggrieved from the said judgment and order dated 17-3-1999 passed by the learned Additional Sessions Judge, Sojat, these three appeals have been preferred by the accused-appellants separately.
3. In these appeals, the following submissions have been made by the learned counsel for the accused-appellants :-
1. That prosecutrix P.W. 8 Gulab is a married lady aged about 16-18 years and accused-appellant-Bhikaram is her neighbour and before the alleged incident, both were having sexual relations not only at the house of accused-appellant-Bhikaram, but at the house of prosecutrix herself also and this fact is visible from the police statement marked as Ex. D/1.
2. That from the statement of the prosecutrix, it is also clear that she has been watching blue films in the presence of accused-appellants nearabout six months earlier to the alleged incident and she did not tell this to anybody else. Therefore, she was a consenting party to all the activities.
3. That statement of the prosecutrix is neither corroborated by the medical evidence nor by any other evidence.
4. That it is surprising that in the FIR Ex. P/3 which was lodged by P.W. 2 Bhanwarlal on 7-10-1995 though after one and half months, it is not mentioned that accused-appellant-Bhikaram committed rape on the prosecutrix. From this point of view also, no case of rape is made out.
5. That the learned Sessions Judge has grossly erred in placing reliance on the statement of the prosecutrix, which is full of contradictions and omissions.
6. That prosecution has failed to prove that accused-appellants-Munni Devi and Kiran instigated, abetted or intentionally aided the accused-appellant-Bhikaram. Thus, their conviction with the aid of Section 109, I.P.C. is bad.
7. That there is no evidence whatsoever against the accused-appellant-Munni Devi.
It is, therefore, prayed that these appeals be allowed and the accused-appellants be acquitted of the charges framed against them.
4. On the other hand, the learned Public Prosecutor supported the judgment and order passed by the learned Additional Sessions Judge, Sojat.
5. I have heard the learned counsel for the accused-appellants and the learned Public Prosecutor and perused the record of the case.
6. Before proceeding further, I would like to first see the medical evidence of the present case.
7. The alleged incident has taken place before one and half months from 7-10-1995 when the report Ex. P/3 was lodged by P.W. 2 Bhanwarlal, father of the prosecutrix. It is also surprising to note that in the present case though the report was lodged on 7-10-1995, but prosecutrix was got medically examined on 24-11-1995. Her medical examination report is Ex. P/5 and the same has been proved by P.W. 6 Dr. Dharamchand. This doctor has opined :-
1. That prosecutrix had sexual intercourse in past.
2. That old tear of hymen is present.
3. That no other physical injury is seen.
8. Thus, from the above, it can easily be said that she was not having any sort of injury on her person and apart from this, the so-called medical examination after two and half month of the alleged incident has no meaning and the same is meaningless.
9. So far as the age of the prosecutrix is concerned, for that P.W. 6 Dr. Dharamchand has been produced and he has stated that on 24-11-1995, a Medical Board was constituted for determining the age of the prosecutrix and after examining her from clinical and radiological point of view, it was found that her age on the date of examination i.e. on 24-11-1995 was between 16-18 years. Thus, from this point of view also, she could be regarded as a girl of more than 16 years of age on the date of occurrence.
10. Now, the statement of the prosecutrix with respect to commission of rape on her has to be critically examined.
11. Before proceeding further, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner :-
1. That corroboration of the testimony of the prosecutrix in rape case is not required to as a rule of law.
2. That corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law.
3. That the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment.
4. That if the evidence of the prosecutrix does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon.
5. That corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time.
12. Keeping the above legal position in mind the evidence of the present case has to be looked into.
13. Apart from the fact that the report Ex. P/3 was lodged by P.W. 2 Bhanwarlal, father of the prosecutrix with delay of one and half month on 7-10-1995, even then that report does not specifically say that accused-appellant-Bhikaram committed rape on the prosecutrix.
14. P.W. 2 Bhanwarlal, father of the prosecutrix, who lodged the report Ex. P/3 has admitted in his cross-examination that prosecutrix told him about the commission of rape by accused-appellant-Bhikaram at village Murdawa and, thereafter, she was taken to Manda and report Ex. P/3 which was filed in the Thana was got written by one Kan Singh, Lawyer.
15. P.W. 3 Ghamandaram, who is Mama of the prosecutrix, has been declared hostile and he has stated that wife of P.W. 2 Bhanwarlal i.e. P.W. 4 Baju also met him, but nobody told him about the alleged incident. He has further stated that prosecutrix used to remain ill and she was suffering from fits.
16. P.W. 5 Jeevaram is the brother of the prosecutrix and he has stated that she told him about the commission of rape at Manda Mandir.
17. The main statement in this case is that of P.W. 8 Gulab prosecutrix herself. She states that she was given two tablets by accused-appellant-Kiran and she was taken to one room in the Hospital and she was unclothed by accused-appellant-Bhikaram and then he fell on her and then committed sexual intercourse with her and he slept with her for quite sometime. Thereafter, accused-appellant-Bhikaram gave something to her through glass of water and then she became unconscious and became mad also. She further states that in one night, accused-appellant-Bhikaram had sexual intercourse with her 2-3 times. In cross-examination, she admits the following facts:-
1. That before 4-6 months earlier to the alleged incident, accused-appellant-Kiran used to come to her house and she used to go Hospital.
2. That she used to see blue films before 4-6 months earlier to the alleged incident.
3. That her grand-mother knows that she used to go to Hospital.
4. That she told the incident of commission of rape on her to her grand-mother.
5. That since she became mad, therefore, villagers informed to her brother and father and they also came on the same day.
6. That she told to her father P.W. 2 Bhanwarlal and brother P.W. 5 Jeevaram that rape was committed on her by the accused-appellant-Bhikaram.
7. That she remained in the village Manda for a month, but she did not recover.
8. That after she left, accused-appellant-Bhikaram came to Hospital after 10.00 and when he came, picture was going on, but it was stopped as soon as he came.
9. That it is wrong to say that accused-appellant-Bhikaram committed rape on her in the pole earlier, but once he tried to commit rape on her in the pole.
10. That she was contradicted with her police statement Ex. D/1 with portion C to D, where she has stated that accused-appellant-Bhikaram used to have sexual intercourse with her sometimes in the pole.
11. That while indulging in sexual intercourse with the accused-appellant, she did not receive any injury.
18. In my considered opinion, looking to entire facts and circumstances of the case and above evidence, the case of the prosecutrix P.W. 8 Gulab that she was raped by the accused-appellant-Bhikaram and the other accused-appellant-Munni and Kiran abetted the commission of rape cannot be accepted because of the following reasons :-
1. That from the point of view of medical evidence, there is not an iota of evidence which supports the version of the prosecutrix P.W. 8 Gulab on the point of alleged commission of rape on her by accused-appellant-Bhikaram.
2. That alleged incident took place before one and half months from 7-10-1995 when the report Ex. P/3 was lodged and she was got medically examined on 24-11-1995 and as already stated above, this medical examination is meaningless as the so-called examination was made after two and half months of the alleged incident and thus, in the present case, it can be easily said that there is no medical evidence which supports the prosecution case or the statement of the prosecutrix on the point of alleged rape.
3. That keeping in view the medical evidence which shows that prosecutrix had been used to sexual intercourse in the past, in order to accept her statement that she was sexually assaulted by accused-appellant-Bhikaram forcibly, there should be cor-roboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the conviction of the accused-appellant.
4. That in the report Ex. P/3, there is no mention of the fact that accused-appellant-Bhikaram committed rape on prosecutrix, though from the evidence on record, it appears that prosecutrix told this aspect to her brother P.W. 5 Jeevaram and father P.W. 2 Bhanwarlal.
5. That there is no evidence so far as accused-appellant-Munni Devi is concerned and P.W. 8 Gulab prosecutrix only says that she was given two tablets by accused-appel-lant-Kiran before she was subjected to sexual intercourse with accused-appellant-Bhikaram. By administering these two tablets, it cannot be inferred that she abetted the commission of crime of rape in any manner and apart from this, there is no evidence against her.
6. That from the evidence on record, no case of abetment by accused-appellants-Munni Devi and Kiran is made out.
7. That lodging of report Ex. P/3 on 7-10-1995 for the incident which took place one and half months back undoubtedly creates doubt on the prosecution case.
8. That no doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix, as held by the Hon'ble Supreme Court in various judgments, but, where there is inordinate delay in registration of the FIR, in such circumstances, it casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story and in this case, this has happened and thus, the whole case of the prosecution is under the cloud of suspicion and doubt.
9. That the so-called delay of one and half months is fatal to the prosecution case and the whole prosecution case can be thrown out on this ground alone.
10. That the fact that prosecutrix was seeing blue films 4-6 months earlier to the alleged incident in the company of the accused-appellants further goes to show that she was a consenting party to all what was going on between them.
11. That when prosecutrix P.W. 8 Gulab had continued sexual relations with ac-cused-appellant-Bhikaram earlier to alleged incident, this conduct of the prosecutrix goes to show that she was a consenting party.
19. For the reasons stated above, the statement of the prosecutrix P.W. 8 Gulab, which does not get corroboration from medical evidence as well as from other factors of the case, cannot be accepted and thus, the findings of the learned Additional Sessions Judge, Sojat, District Pali convincing the accused-appellant-Bhikaram for the offence under Section 376, I.P.C. and accused-appel-lants-Munni and Kiran for the offence under Section 376 read with Section 109, I.P.C. cannot be sustained and are liable to be set aside and the accused-appellants are entitled to be acquitted of the said charges and their appeals are liable to be allowed.
Accordingly, the appeals, No. 1 being S.B. Criminal Appeal No. 160/99 filed by accused-appellant-Bhikaram and No. 2 being S.B. Criminal Appeal No. 189/99 filed by accused-appellants-Smt. Munni Devi and Veena alias Kiran are allowed and the judgment and order dated 17-3-1999 passed by the learned Additional Sessions Judge, Sojat District Pali are set aside and the accused-appellants are acquitted of the charges framed against them. Since they are in jail, they be released forthwith, if not required in any other case.
Since the appeal filed by the accused-appellants-Smt. Munni Devi and Veena alias Kiran being S.B. Criminal Appeal No. 189/ 99 has already been allowed, therefore, their another appeal No. 3 being S.B. Criminal Appeal No. 190/99 stands disposed of accordingly.