Rajasthan High Court - Jodhpur
Mahaveer Prasad vs State on 1 February, 2019
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Criminal Appeal No. 198/2015 Mahaveer Prasad
----Appellant Versus The State of Rajasthan
----Respondent For Appellant(s) : Mr.Vinod Choudhary Mr.Shaitan Singh, Amicus For Respondent(s) : Mr.O.P.Rathi, PP HON'BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG Judgment 01/02/2019
1. Charged for having raped the prosecutrix on 24.5.2010, the appellant has been convicted vide impugned judgment dated 9 th February, 2015. He has been sentenced to undergo RI for a period of seven years and pay fine in sum of र10,000/-, in default of payment, to undergo RI for a period of one month.
2. Process of criminal law was set into motion when on 25.5.2010 at 6.00 PM the prosecutrix lodged a written complaint Ex.P-7 at Police Station Hanumangarh stating therein that her father had expired three years back and her mother had accepted the appellant as her husband. Yesterday her mother left the house for work and around 4.00 PM appellant came to their house. He told the prosecutrix to rest in the room while he prepared tea. Deceitfully he added an intoxicant in the tea. On drinking tea she became unconscious. The appellant raped her. She regained consciousness at around 7.00 PM.
(2 of 6) [CRLA-198/2015]
3. On the basis of the complaint FIR Ex.P-8 for offence punishable under Section 376 IPC was registered. The prosecutrix was taken to the Government Hospital, Canal Colony, Hanumangarh. She was medically examined and medical examination report Ex.P-10 was prepared, as per which the prosecutrix was found to be habitual to sexual intercourse. No injury was noted on her person. Vaginal swab, vaginal slides, blood & saliva samples and salvar were handed over by the doctor to the Investigating Officer as recorded in the medical examination report Ex.P-10.
4. The appellant was arrested and on 1.6.2010 was examined at the same Hospital. He was found capable of having sexual intercourse. His blood and saliva samples were taken. His underwear was also taken by the doctor concerned and handed over to the Investigating Officer.
5. The seized exhibits pertaining to the prosecutrix were forwarded to FSL, Jaipur as per Ex.P-12 and surprisingly whereas the salvar of the prosecutrix was seized as per Ex.P-10, Ex.P-12 records that underwear of the prosecutrix was sent for forensic examination. The FSL report Ex.P-15 records that semen was detected on the salwar which was seized from the prosecutrix.
6. At the trial the mother of the prosecutrix appeared as PW1 and deposed that on the day of the incident she had left the house for work. Her husband had died 8 yeaers back. After the death of her husband the appellant started residing with her but for 2-3 months prior to the incident he had stopped living with her. When she returned in the evening to her house she saw that the clothes of her daughter were open. On her asking her daughter informed that the appellant had come to the house. He prepared tea in (3 of 6) [CRLA-198/2015] which he put an intoxicant. After drinking tea her daughter got intoxicated and accused raped her daughter.
7. On being cross-examined she stated that the appellant lived with her as her husband for 2-3 years. For 2-3 months prior to the incident he had stopped coming to her house. When she returned to her house she saw that her daughter was not wearing the clothes. The top and salwar were removed. Because it had got dark by the time she returned home they lodged the police complaint next day. She denied the suggestion that because the appellant had stopped living with her a false case of rape was slapped on him.
8. The prosecutrix appeared as PW-2 and deposed that her father had died many years ago. After the death of her father the appellant started residing with her mother as her husband. Two months prior to the incident the appellant had left their house. On the day of the incident her mother had gone for work. The appellant came to their house and volunteered to make tea himself. He served her intoxicated tea, drinking which, she was in a state of semi consciousness. The appellant removed her clothes and inserted his penis in her vagina and raped her. When her mother returned, her clothes were removed. She told the incident to her mother. After she was medically examined the doctor took possession of her clothes.
9. On being cross examined she stated that the appellant lived with her mother as her husband for two years. Two months prior to the incident he had stopped coming to their house. She stated that since she was semi conscious she made a noise and none from the neighborhood intervened because they were threatened by the appellant. She stated that when she was being raped she (4 of 6) [CRLA-198/2015] was waiving her hands because of which the bangles broke. She stated that the police took the possession of her salwar.
10. Vide impugned judgment the learned trial Judge has held that there is nothing to disbelieve the testimony of the prosecutrix and has found corroboration to her version with reference to the FSL report in which it is recorded that semen was detected on the salwar of the prosecutrix which was sent for forensic examination.
11. During arguments in the appeal, confronted with the fact that in Ex.P-10, after the prosecutrix was medically examined, it is recorded that a salwar was seized, but in ExP-12, being the forwarding letter to the Director, FSL, Jaipur whereunder exhibits pertaining to the prosecutrix seized during investigation were sent for forensic examination, it is recorded that underwear was sent, learned counsel for the State has no answer.
12. The impugned judgment has not noted aforesaid discrepancy.
13. From a perusal of the testimony of the prosecutrix when she appeared as the witness of the prosecution it emerges that as per her since she was semi conscious she made noise but nobody intervened because as per her appellant had threatened the people. This is a material improvement vis-a-vis her written report Ex.P-7.
14. It assumes relevance that on being cross-examined the prosecutrix stated that when she was being raped she resisted. She has used the expression "हाथ वगैरा भी मैनने मारने थने." because of which her bangles broke. No broken bangles have been seized from the room where the prosecutrix claimed she was raped. As noted above, in the medical examination report Ex.P-10, no injury (5 of 6) [CRLA-198/2015] on her person has been noted. If her bangles broke at-least some scratch marks due to broken glass would have been detected.
15. PW-7 Dr.Rajpal Godara, who authored the medical examination report has recorded that the prosecutrix was habitual to sexual intercourse.
16. The prosecutrix and her mother admitted that for 2-3 months prior to the date of the incident the appellant had stopped coming to their house and prior thereto was living with the mother of the prosecutrix as her husband after the father of the prosecutrix died 6-7 years ago.
17. The possibility of a false implication of the appellant thus cannot be ruled out.
18. It also assumes importance that as per the prosecutrix there was full penetration in her vagina but in the FSL report no semen was detected in the vaginal swab and vaginal slides taken from the prosecutrix.
19. For the reasons noted above the appellant, who has undergone a sentence of 5 years, 4 months and 12 days as on 24.1.2019, is entitled to be extended the benefit of doubt.
20. The appeal is allowed. The impugned judgment dated 9.2.2015 is set aside and the appellant is acquitted of the charge framed against him. The appellant be released from the jail forthwith, if not required in any other case.
21. Keeping in view, however, the provisions of Section 437A Cr.P.C. the appellant is directed to forthwith furnish personal bond in sum of र5,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the present judgment or for grant of leave, the (6 of 6) [CRLA-198/2015] appellant, on receipt of notice thereof, shall appear before the Supreme Court.
(PRADEEP NANDRAJOG),CJ 8-Parmar/-
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