Vidhya Devi vs State Of Rajasthan And Anr on 22 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR

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)

—-Appellant

Versus

1. State Of Rajasthan through PP

—-Respondent

2. Ramavtar Sharma S/o Kailash Chand Sharma, R/o House No.
547, Kateva Nagar, P.S. Shyam Nagar, Jaipur

—-Accused/Respondent

__

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

22/05/2017

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
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[CRLA-1101/2014]

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

accused.

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

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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.

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[CRLA-1101/2014]

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

properly explained.

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

limited place.

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
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[CRLA-1101/2014]

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judgment.

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

toilet.

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
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[CRLA-1101/2014]

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

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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

under threat.

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

in functions.

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)
[CRLA-1101/2014]

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.

Arun/18

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