Rajasthan High Court - Jaipur
Gauttam vs State Of Rajasthan on 27 August, 2004
Equivalent citations: 2005CRILJ981, 2005(1)WLC521
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. This criminal jail appeal is directed against the judgment and order impugned dated 22-7-2003 passed by Additional Sessions Judge (Fast Track) No. 2, Pratapgarh Camp at Nimbahera (for short 'the trial Court' hereinafter) in Sessions Case No. 84/2003, whereby the trial Court convicted and sentenced the appellant thus :--
Under Section 376, I.P.C. : Seven years' rigorous imprisonment and fine of Rupees 5000/-, in default of payment of fine, to further undergo six months' simple imprisonment.
Under Section 366, I.P.C. : Two years rigorous imprisonment and fine of Rs. 2000/-, in default of payment of fine, to further undergo two months' simple imprisonment.
Under Section 384. I.P.C. : One year's rigorous imprisonment and fine of Rupees 1000/-, in default of payment of fine, to further undergo one month's simple imprisonment.
Under Section 344. I.P.C. : One year's rigorous imprisonment and fine of Rupees 1000/-, in default of payment of fine, to further undergo one month's simple imprisonment.
2. All the aforesaid sentences were ordered to run concurrently. Aggrieved by the judgment of conviction and order of sentence, the appellant has filed the instant jail appeal.
3. I have heard learned Amicus Curiae for the appellant and the learned Public Prosecutor for the State. Perused the judgment and order impugned, I have carefully gone through the record of the trial Court and scanned and evaluated the evidence on record.
4. P.W. 4 Heera Lal, lodged the first information report Ex. P/5 on 24-3-2002 for the offences under Sections 376 and 366, I.P.C. against the appellant. After usual investigation, police filed the challan against the appellant. Charges were framed against the appellant for the offences under Sections 376, 366, 384 and 344, I.P.C. The prosecution produced as many as 12 witnesses and adduced documents Ex. P/1 to P/19. Accused made statement under Section 313, Cr. P.C. and denied the allegations. However, he stated that prosecutrix P.W. 5 Nani eloped voluntarily. P.W. 4 Heera Lal is the husband of prosecutrix P.W. 5. He stated that the appellant came to their house and wanted to take his wife P.W. 5 for certain social ceremony. He stayed with them. In the night, he went to well and his wife was at home. He further stated that when he was at the well, the appellant took away his wife. They made extensive search but his wife P.W. 5 Nani could not be tracked and reported the matter to the police Ex. P/3. After number of days from lodging of the report, his wife was got recovered by the police. He admitted that the appellant stayed at their house for three days. However, he did not enquire about him as to who he was. He stated that he is an imbecile, therefore, he did not enquire about the appellant. According to the statement of this witness, the appellant was stranger to their family. He stated that on his wife having been taken by the appellant, after lapse of a number of days, the report was lodged.
5. P.W. 5 Nani, the prosecutrix is the only material witness. She stated that one stranger came to their house and stayed with them. He wanted to take her away. She has identified the appellant in Court. The appellant came at about 5.00 in the evening and prior to this, he never came to their house and was not known to them. He was seen first time. She stated that she had three children and has agricultural work, therefore, she was not inclined to go with him. She explained her inability to go with him. The appellant stayed with them for three days. Thereafter, in the night when her husband was at well, she eloped along with appellant to Geedakheda and thereafter to Mangalvad in a bus and from there to Dhariyavad Pahad and then to forest. She was taken in a hut, it is alleged that in the hut, the appellant committed rape on her. They continued to live there for a number of days and when someone informed the police, the police came and took her to the police station. In cross examination, she clearly admitted that the appellant stayed at their house for three days. He was served with the meals by her. When she was going along with the appellant through market, many persons met them on the way, however, she did not say any person that she was being forcibly taken by the appellant. She admitted that she eloped with the appellant voluntarily. Initially, the prosecutrix was willing to go, however, subsequently, she knew that she was cheated by the appellant. After Mangalvad, she was taken to various places but she could not disclose the names where she was taken. She clearly admitted that when she went along with the appellant, her husband was at the well and without informing her husband, she eloped along with the appellant voluntarily and happily. She has categorically stated that she was not forcibly taken away by the appellant.
6. Vide Ex. P/7, P.W. 5 Nani, the prosecutrix was recovered by P.W. 11, Lal Singh, the Investigating Officer. When the police reached the house of the appellant, the appellant and prosecutrix were sitting. P.W. 11 Lal Singh, the Investigating Officer has proved Ex. P/7, recovery of the prosecutrix, site map Ex. P/8, recovery of garments of the prosecutrix Ex. P/9, recovery of garments of appellant Ex. P/11, arrest memo of Ex. P/10, nose-pin (Nath) Ex. P/18. The Investigating Officer P.W. 11 clearly admitted that the report of the occurrence was lodged after 2-3 months of the occurrence. The police station is at the distance of 10 Kms. from the village of prosecutrix. He stated that there is no house around the house of the appellant from where, the prosecutrix was recovered. In his investigation, nothing has come that any person went to P.W. 4 and informed him regarding the custody of the prosecutrix .
7. The other witnesses are the police personnel namely Malkhana In-charge, police officials, who took samples and garments for being analyzed to F.S.L. etc. P.W. 9 Mr. Prem Prakash Gupta, A.C.J.M. has proved the statement of prosecutrix under Section 164, Cr. P.C. vide Ex. P/14 application for recording of statement of prosecutrix Ex. P/13 and Ex. P/15 by which the statement was sent to the concerned Court. P.W. 7 Khum Singh, S.H.O., Police Station, Bhadsoda has proved the FIR Ex. P/5 and stated that the FIR was drawn as stated by P.W. 4 Heera Lal.
8. P.W. 8 Kishan Lal is the witness to Ex. P/7 by which the prosecutrix was recovered, site map Ex. P/8, site inspection note Ex. P/9, arrest memo Ex. P/10, recovery of ornaments Ex. P/11 and "Supardagi" of prosecutrix Ex. P/12. He admitted that all proceedings have taken place in the police station and he has sent all the documents to Police Chowki, Mangalwad and to Police Station, Bhadsoda. Fie has signed the plain papers.
9. P.W. 6 Dr. Ramesh Kumar, the Medical Officer, Dungla has examined the appellant and proved Ex. P/4. According to him, the appellant was capable to perform sexual intercourse. P.W. 3 Dr. Kamal Bhargawa, the Medical Jurist of General Hospital. Chittorgah has examined the prosecutrix and proved Ex. P/2. According to him, the age of prosecutrix was about 35 years and she was having pregnancy of about 7 months. There is no medical evidence which corroborates the statement of prosecutrix. There is no medical evidence suggesting that the prosecutrix was subjected to rape.
10. On close scrutiny and reappreciation of the evidence of P.W. 4 Heera Lal, the husband of prosecutrix P.W. 5 as also P.W. 11 Lal Singh, the Investigating Officer, it has been established that the prosecutrix's husband P.W. 4 Heera Lal is an imbecile person. The prosecutrix earlier also voluntarily eloped with a person of Meena community and stayed with him for a number of days and thereafter, she eloped with the appellant. From the fact admitted by the prosecutrix that the appellant stayed at their house for three days, he was served with meals and thereafter, finding her husband away from home as he was at well in the night, she voluntarily eloped along with the appellant. Even for three days when the appellant stayed at the house of prosecutrix, the husband of prosecutrix used to go to well in the night and in absence of her husband, the prosecutrix voluntarily eloped with the appellant. She travelled and visited various places with the appellant voluntarily. The appellant and prosecutrix were living at the isolated house of the appellant situated at the place where there was no other house. From the statements of the Investigating Officer and P.W. 4 Heera Lal, husband of the prosecutrix, it is revealed that the report of her being taken away by someone was lodged after about 2-3 months. The conclusion regarding conduct of the prosecutrix is that she had earlier also eloped with a person belonging to Meena community. She is a major of 35 years having three children and leaving behind the children she eloped with a person of Meena community and thereafter, with the appellant, therefore, it appears that she left the house with the appellant, which clearly shows that she wanted to go with the appellant and she voluntarily went with him in absence of her husband. Even the prosecutrix, in her statement, has stated that she voluntarily went with the appellant and while she was going with the appellant through market, some persons met them, however, she did not disclose to any person. From her own statement, it nowhere appears that she was kidnapped or taken away forcibly by the appellant. Thus, the prosecutrix is the consenting party and in the circumstances, therefore, the judgment and order impugned cannot be sustained. Prosecutrix P.W. 5 is not a reliable witness and solely on her uncorroborated evidence, conviction cannot be sustained. Therefore, in my considered opinion, the trial Court fell in error in convicting and sentencing the appellant for the offences noticed above.
11. Consequently, the appeal is allowed. Judgment and Order dated 22-7-2003 passed by Additional Sessions Judge (Fast Track), No. 2, Pratapgarh Camp at Nimbahera in Sessions Case No. 84/2003 is hereby set aside. Appellant Gautam son of Partha, by caste Dangl, resident of Arniya-ka-Guddha, Police Station, Lasadiya, District Udaipur is acquitted for the offences under Sections 376, 366, 384 and 344, I.P.C. He is in jail. He shall be set at liberty forthwith, if not required in any other case.