HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
S.B. Criminal Appeal No. 1101 / 2014
Vidhya Devi W/o Shri Rajkumer, aged 42 years, R/o Plot No. 494,
Kateva Nagar, PS Shyam Nagar, Jaipur (Rajasthan)
1. State Of Rajasthan through PP
2. Ramavtar Sharma S/o Kailash Chand Sharma, R/o House No.
547, Kateva Nagar, P.S. Shyam Nagar, Jaipur
For Appellant(s) : Ms. Ritu Somani
For Respondent(s) : Mr. Ram Ratan Gurjar, PP
For Complainant : Mr. O.P. Mishra
HON’BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
1. Complainant has preferred this appeal aggrieved by judgment
dated 18.10.2014 passed by Special Judge, Women Atrocities Dowry
Cases, Jaipur Metropolitan in Sessions Case No. 23/2013 whereby
the Court below acquitted the accused/respondent No.2 from the
charges under Section 376, 384 IPC.
2. Briefly stated the facts of the case are that an FIR was lodged
by the appellant/prosecutrix on 09.09.2012 alleging therein that the
accused/respondent No. 2 committed rape upon her seven months
back when her husband and son were away from home. The rape is
alleged to have been committed in a toilet, thereafter, it was alleged
that the accused continued to commit rape upon her on threat of
defaming her. The accused also took away gold chain and obtained
(2 of 6)
money from the prosecutrix.
3. The police after due investigation submitted charge-sheet
against the accused/respondent No.2. The Court after hearing the
accused framed charges under Section 376, 384 IPC against the
4. The Court below proceeded to record the statement of the
prosecutrix as PW-1, husband of prosecutrix Rajkumar Didwania PW-
2, Mahendra Joshi PW-3, son of prosecutrix Kamal Didwania as PW-4,
Shivkumar PW-5, Dr. Shiv Lal Mehra PW-6 Investigating Officer, Hari
Singh PW-7, Shaktidan Singh PW-8 and Dr. Renu Jain PW-9
documents Ex. P1 to P12 were exhibited on behalf of the prosecutrix.
5. Accused was examined under Section 313 Cr.P.C. DW-1
Ramchandra Gaur was produced on behalf of the defence and Ex. D-
1 to Ex. D-21 were exhibited on behalf of the defence.
6. The Court after considering the statement and the relevant
records acquitted the accused aggrieved by which the appeal has
been preferred by the complainant.
7. It is contended by counsel for the complainant that
complainant is an illiterate lady who has specifically stated that video
was made by the accused and she was threatened of dire
consequences as a result of which she did not complain to her
husband and son. It is also contended that the defence has not
established that the recording in the moblie was that of the
complainant and further even if the Court comes to the conclusion
that the same was of the complainant then also the same cannot be
relied upon as the complainant in her statement has specifically
stated that the recording was done under threat.
(3 of 6)
8. It is also contended that the alleged love letters are stated to
have been written by Pooja but Pooja has not been examined,
therefore, no reliance can be placed on the alleged love letters. With
regard to the contradictions in the statement of the prosecutrix, it is
contended that the prosecutrix is an illiterate lady and the
contradictions are not such so as to acquit the accused. As regards
the accused demanding money, it is contended that PW-3 Mahendra
Joshi has specifically stated that money was taken by the
complainant after pledging her jewellery.
9. Counsel for the respondent has vehemently opposed the
appeal. His contention is that the delay in the FIR has not been
10. It is contended that the accused lodged an FIR against the son
of prosecutrix on 05.09.2012 and present FIR has been lodged
against the respondent on 09.09.2012 to counterblast the FIR lodged
by the accused and to put undue pressure on the accused.
11. It is contended that the toilet in question is of the size 4×3 feet
and it is not possible for the accused to have committed rape in that
12. It is also contended that the prosecutrix initially has stated that
she does not know the accused but from the photographs exhibited
in defence it is established that the accused was known to the
prosecutrix. It is further contended that initially the prosecutrix
stated that she has never talked with the accused on moblie but in
later part of her statement she has admitted that the accused gave
her a moblie and she used to talk with the accused on moblie.
13. I have considered the contentions and have perused the record
of the case, the statements of the witnesses and the impugned
(4 of 6)
14. Present FIR has been lodged on 09.09.2012 and it is mentioned
in the FIR that rape was initially committed by the accused seven
months prior to the date of lodging of the FIR. In the FIR it is
mentioned that when the prosecutrix was cleaning the stairs, the
accused forcefully took her to the bath room closed the gate and
committed rape upon her, by putting hands on her mouth by showing
her knife and threatening to kill her.
15. As regards the size of the toilet prosecutrix in her cross-
examination has stated that the bathroom is of size 4×3 feet, PW-7
Hari Singh, Investigating Officer, has also stated that the size of the
bathroom was 4×3 feet. He has also admitted that it is difficult for a
person to lie down in the toilet.
16. The contention of the complainant that rape was committed
upon her in the toilet cannot be believed for the reason that in a
toilet of the size of 4×3 feet, commission of rape and then recording
the same on a moblie is an impossibility, since PW-7, Investigating
Officer, has admitted that it is difficult for a person to lie down in the
17. The statement of the prosecutrix does not inspire confidence.
Initially in her cross-examination, she has stated that she does not
know Ramavtar and Ramavtar did not use to come to her residence.
In her cross-examination, she has further stated that she has not
talked with Ramavtar on moblie as she was not having any moblie
and she does not know the mobile number of Ramavtar but in later
part of her cross-examination, she has admitted that during the
seven months period she used to talk to Ramavtar and moblie was
given to her by Ramavtar. The voice recording on the mobile was
(5 of 6)
admitted by the prosecutrix to be her voice but she stated that the
recording was done under threat.
18. The contention of counsel for the appellant that the recording
was not sent to the FSL to verify that the voice therein was that of
the complainant cannot be accepted for the simple reason that the
prosecutrix herself has admitted that the voice in the recording is her
own voice from the transcript of the mobile it is evident that the
prosecutrix talked with the accused for a pretty long time and the
Court below has not committed any error in coming to the conclusion
that the recording cannot be said to be one which was recorded
19. Ramavtar was known to the proseuctrix and from the
photographs produced in defence, it is evident that Ramavtar and
the prosecutrix were known to each other. Ramavtar is having a shop
opposite to the residence of the prosecutrix and the prosecutrix
herself in later part of her cross-examination has admitted that
Ramavtar was known to her and she used to talk to Ramavtar on
mobile. PW-2 Rajkumar, husband of the prosecutrix has also
admitted in his statement that the accused was known to the
prosecutrix and that the prosecutrix used to go to Ramavtar’s house
20. The story as put forth by the prosecutrix further cannot be
believed for the reasons that the place where the instant rape is
stated to have been committed is not far from the main road and if
any alarm is raised, the same can be heard by the shopkeepers and
passers by. PW-4 Kamal Gidwani son of the prosecutrix has admitted
that if some forcefully brings any person down from the stairs and
takes the person in the toilet the voice can be easily heard out side.
(6 of 6)
This witnesses have also admitted that the house is situated in a
populated area and there are 15 shops near the house. He has also
admitted that there is a ten feet road in front of the house and there
is running traffic.
21. The prosecution has failed to establish the commission of rape,
the delay in lodging the FIR has also not been properly explained and
the contention of counsel for the respondent that there is rivalry
between accused and family of complainant and FIR has been lodged
to counterblast the FIR filed by the accused on 05.09.2012 might be
the reason for lodging the present FIR. The Court below has dealt
with the entire facts of the case in right perspective and has not
committed any illegality in acquitting the accused.
22. No case is made out for entertaining the criminal appeal, the
same is dismissed.
(PANKAJ BHANDARI), J.