Rajasthan High Court - Jaipur
Shiv Kumar And Ors. vs State Of Rajasthan on 7 April, 1993
Equivalent citations: 1993CRILJ3596, 1993(3)WLC677
JUDGMENT M.R. Calla, J.
1. These two appeals are directed against the judgment and order dated 7th October, 1991 passed in Sessions Case No. 40/91, by the Sessions Judge, Dausa, Camp Bandikui, whereby Shiv Kumar, appellant in Appeal No. 457/1991 and the appellants Bhondu and Dablu alias Rewarmal, appellants in Appeal No. 469/91, were convicted for offence under Section 376, I.P.C. and each one of them was sentenced to undergo 10 years' R.I. and to pay a fine of Rs. 200/-, in default of payment of fine each one of them was ordered to further undergo three months' R.I.
2. An FIR was lodged on 3rd March, 1991 with regard to an incident dated 19-2-1991 that Prabho, daughter-in-law of Prabhati Lal (father-in-law), author of the FIR, was taken in a school building by the three appellants on 19-2-1991 at about 6 a.m. while she had gone to attend the call of the nature and there she was raped. Thereafter, she was subjected to medical examination on 5-3-1991. Police registered a case and investigated the matter and filed challan against the three accused persons who were convicted and sentenced as above, by the Sessions Judge, Dausa, Camp Bandikui, by his judgment and order dated 7-10-91, against which the present two appeals have been preferred.
3. It has been argued by Shri N. K. Joshi and Shri A. K. Gupta, on behalf of the appellant that in the instant case, FIR was lodged as late as on 3-3-1991 with regard to the incident which is alleged to have taken place on 19-2-1991 and there is no explanation for the delay except that the father-in-law Prabhati Lal and the husband of the prosecutrix were at Delhi and they had come down to the village on 27/28th February, 1991. It has been pointed but that P.W. 10 Ram Prasad who is said to be the maternal-in-law of/the prosecutrix Prabho had gone to Delhi on 27-2-1991 to call Sualal and Prabhati Lal and they came on 28-2-1991 and yet, the FIR was lodged as late as on 3-3-1991. On this premise, it has been submitted that there is no explanation for the delay from 19th February, 1991 to 20th February 1991 and even after the arrival of Sua and Prabhati in the village on 28-2-1991, there is no explanation for filing the FIR on 3-3-1991. Thus, it has been submitted that there is abnormal, unexplained and inordinate delay in the filing of the FIR and this by itself is fatal to the case of the prosecution. In this regard, reliance has been placed on Rafiq v. State of U.P., 1980(4) SCC 262: (1980 Cri LJ 1344) and Marudanal Augusti v. State of Kerala, AIR 1980 SC 638: (1980 Cri LJ 446).
4. It was further argued on behalf of the appellants that the medical evidence which has become available in this case does not support the case of the prosecution inasmuch as Dr. R. P. Meena, (P.W. 5) has given a reasoned report and has opined that the injuries were bruises etc. found on the person of the prosecutrix Prabho were 2-5 days old and the same could not be older than 6-7 days in any case. It is not disputed that the prosecutrix Prabho was subjected to medical examination on 5-3-1991 and if the injuries are said to be 2-7 days old, the same is not compatible with the date of the incident and therefore, the medical report which has come does not corroborate the story of the prosecution that the incident had taken place on 19-2-1991 because had the incident taken place on 19-2-1991, the injuries were about 15 days old which is inconsistent with the opinion of the doctor. In this background, if we examine the probable defence which has been raised on behalf of the accused appellants, we find that it has come in the evidence that on 28-2-1991 it was 'Dhulandi' following the Holi festival which was on 27-2-1991. According to the appellants, no incident of rape, whatsoever, took place on 19-2-1991, as alleged, but it has been argued that on the day of 'Dhulandi' in the rural areas, Holi is played and, therefore, the accused appellants were playing Holi with the prosecutrix Prabho and in this course of action, colours were thrown and it might have raised some cause of grievance. The matter was taken to the Panchayat on 1st March, 1991 i.e. after the arrival of Sua and Prabhati i.e. her husband and father-in-law respectively and in the Panchayat, a fine of Rs. 51/- was imposed on the side of the prosecutrix and a fine of Rs. 101/- was imposed on the accused Dablu. It is also the case of the appellants that Prabho has herself stated in her statement that she had informed about the incident of rape to Motilal who has been examined as P.W. 1 in this case. P.W. 1 Motilal s/o Chiranji Lal has stated that he had returned from Baroda on 19-2-1991 and on that day, Prabhati and Sua had met him. He has further stated that on 1st March, 1991, at the instance of Prabhati a Panchayat was held in the village and he too was called in the Panchayat. In the Panchayat, Prabhati stated as under:-
^^muds yM+ds dh cgw izHkks ij /kwyaMh ds jkst jax Mky fn;k gSA vkSj cgw ls glh etkd gSA iapk;r esa izHkks dks Hkh cqyk;k o tcrik dks Hkh cqyk;k FkkA nksuksa us ,d nwljs ij jax Mky nsuk dgk FkkA**
5. This witness P.W. 1 has been stated that a fine of Rs. 101/-was imposed on Dablu and a fine of Rs. 51/- was imposed on Prabhati and that Panchayat was held in the evening at 8. p.m. on the day of Dhulandi itself. In the Panchayat, nothing was said about any allegation of rape either by Prabho or by any person from her house. In the cross-examination, he has stated that this Panchayat was presided over by Moolchand Bairwa. Nothing was given in writing with regard to these allegations. In this Panchayat, Bairwas, Malis and Brahmins all were included. This witness has not been shaken in the cross-examination. Besides this, it has also been pointed out on behalf of the appellants that P.W. 8 Dhapa i.e. elder mother-in-law of the prosecutrix Prabho has been disbelieved by the trial Court itself and so far as P.W. 4 Manni who is the ifiother-in-law of the prosecutrix is concerned, she was declared hostile. She even gave out the name of her husband as Girraj in her statement whereas her husband's name is Prabhati Lal. Reference has also been made to P.W. 10 i.e. the Investigating Officer who has stated that he had made enquiries from the neighbours but they did not know anything about the incident of rape. P. W. 9 Ram Prasad has only stated that he was approached by son of Prabhati before 2-5- days of Holi that the daughter-in-law of Prabhati had been disgraced (csbTtr) and that he should go to Delhi to inform Prabhati and Sua. He then says that thereupon, he went to Delhi and informed Prabhati Sua. He has not been able to give any date for his going to Delhi and for meeting Prabhati and Sua but he says that he took 2-3 days in searching out Prabhati and Sua in Delhi and he had returned to the village after informing them.
6. Shri Bhanwar Bagri, learned counsel for the complainant has submitted that the prosecutrix belonged to a weaker section of the society and, therefore, the ground of delay should not come in the way of the conviction of the accused appellants, more particularly when the prosecutrix is an illiterate lady. He has also cited before me Rafiq v. State of U.P., 1980 (4) SCC 262 : (1980 Cri LJ 1344) and has submitted that it is not a case of wilful delay. Shri Bagri, learned counsel for the complainant has further submitted that totality of the facts and circumstances has to be looked into as per the aforesaid Supreme Court judgment given in the case of Rafiq (supra).
7. Shri S. R. Yadav, learned Addl. PP has argued that the conviction can be based on the sole testimony of the prosecutrix whether it is corroborated or not and he has submitted that so far as the statement of the prosecutrix herself is concerned, there is no inconsistency in her statement and her statement is also corroborated from the disclosure of the incident which was made by her to P.W. 4 Manni.
8. I have gone through the impugned order dated 7-10-1991 and the evidence which is available on record. I find that in the instant case, if it is believed that the incident had taken place on 19-2-1991, nothing has come on record on the basis of which it can be said that the complainant side was prevented from filing the FIR within time. The FIR in the instant case, has been filed admittedly on 3-3-1991 i.e. after a period of 13 days for which there is no explanation, whatsoever. P.W. 9 has stated that he had been approached by the son of Prabathi so as to inform Sua and Prabhati at Delhi and he has also stated that ! he had informed them. Even if it is believed that the report could not be lodged for want of ! the male members of the family who were not present in the village but were in Delhi, it is certain that they had reached the village on the occasion of Holi and thereafter, a Panchayat was held in their presence and yet, thereafter the FIR was lodged only on 3-3-1991 when the matter had been discussed in the Panchayat and fine had been imposed on both the sides by the members of the Panchayat in presence of the villagers of the village. In this view of the matter, I find that there is an unexplained, inordinate delay for which there is no explanation whatsoever and such delay, according to the preposition of law, must be held to be fatal to the case of the prosecution. So far as the medical evidence is concerned, as has become available in this case, it is clear that the prosecution story is not at all compatible with the medical evidence and the medical evidence rather than corroborating the case of the prosecution, seeks to damage the case of the prosecution inasmuch as according to the doctor, none of the injuries could be older than seven days prior to 5-3-91. If the injuries were 7 days old, then it is more probable that some incident might have taken place on or about 28-2-1991 and therefore, it tallies more with the defence which has been raised on behalf of the accused appellants that on the day of Holi there was : some dispute with Dablu and thereafter, a Panchayat was held in which fine was imposed on both the sides. It has been pointed out that the Panchayat found that there was bilateral mistake of both the sides in the matter of playing Holi and therefore, a sum of Rs. 51/- was imposed as fine on the complainant i.e. Prabhati and a fine of Rs. 101/-on Dablu. Dhapa has already been disbelieved for which adequate reasons have been given. So far as Manni is concerned she has been declared hostile. The investigating officer has also stated that the neighbours did not know anything about this incident and P.W. 1 Motilal has fully supported the defence and has pointed out that there was a Panchayat on the evening of Dhulandi i.e. on 28-2-1991 itself.
9. The contention of the learned Addl. PP that conviction can be based on the statement of the prosecutrix herself whether corroborated or not is no doubt based on the legal proposition with which there cannot be any quarrel but in the facts and circumstances of the present case, having gone through the totality of the facts and circumstances, as has been held by the Supreme Court in the case of Rafiq v. State of U.P. (supra), and having gone through the statement of the prosecutrix Prabho wherein Probho herself admits the factum of holding a Panchayat and the factum of the imposition of fine on her side and even says that she did not know as to what about the fine had been imposed on the side of her and father-in-law; the fact that she even did not disclose this incident of her being taken away to the school while she had gone for attending the call of the nature, to her husband and her statement that she had also informed police people that her Jantar had been taken away and yet the same was not mentioned by the police and her own statement that in the village, a Panchayat was held before filing the report in the police and this Panchayat was held on the very day when her father-in-law and husband came from Delhi; and her statement in the earlier part of the cross-examination that her mother-in-law's name is Dhapa and not Manni, go to raise a suspicion and lurking doubt about the correctness of the prosecution story.
10. In the facts and circumstances of the case, I find that it is a fit case in which the appellants are entitled to the benefit of doubt.
11. So far as accused Shiv Kumar is concerned, it was not alleged that he had also committed offence of rape and my attention has also been invited to the omissions in the police statements and the subsequent development of the story in the statements made before the Court.
12. So far accused Shiv Kumar is concerned, it has been given out by Shri A. K. Gupta, learned counsel for the accused appellant that he is already on bail since 1-11-1991 whereas appellants Dablu and Modu in Appeal No. 469/1991 are in jail since 6-8-1991.
13. The net result of the adjudication as aforesaid is that these appeals are allowed and the appellants are acquitted of the offence under Section 376, I.P.C. Their conviction and sentence recorded and awarded vide order dated 7-10-1991. by the Sessions Judge, Dausa, Camp Bandikui, in Sessions Case No. 40/1991 is set aside. Appellant Shiv Kumar need not surrender to his bail bonds and the two appellants Bhondu and Dablu alias Rewad be released forthwith, if they are not required in any other case. Record of the trial Court may be sent without any delay.