HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 423 / 1990
Rajveer Singh son Bhonro, by caste Thakur, Resident of Khule-Ka-
Pura, Police Station Bari, District Dholpur.
—-Accused-Appellant
Versus
The State of Rajasthan
—-Respondent
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For Appellant(s) : Mr. Pradeep Shrimal
Dr. Y.C. Sharma
For Respondent(s) : Mr. Ram Ratan Gurjar
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HON’BLE MR. JUSTICE M.N. BHANDARI
Judgment
05/06/2017
1. By this appeal a challenge is made to the judgment
dated 03.11.1990 passed by the Additional District Sessions
Judge, Dholpur in Session Case No.53/89, by which the appellant
was convicted for offence under Sections 457 and 376 IPC and
sentenced to undergo seven years rigorous imprisonment with a
fine of Rs.200/-, in default of payment of fine to further undergo
two months rigorous imprisonment for offence under Section 376
IPC, and sentenced to undergo two years rigorous imprisonment
with a fine of Rs.200/-, in default of payment of fine to further
undergo two months rigorous imprisonment for offence under
Section 457 IPC. Both the sentences were ordered to run
concurrently.
2. Learned counsel for the appellant submits that false
allegations of commission of offence under Sections 457 and 376
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IPC have been levelled against the appellant. It was out of the
revenge. The accused and the prosecutrix’s husband were working
in the mines and were having rivalry with each other. It is only to
settle the aforesaid that a story was concocted about commission
of offence. It was stated that the accused-appellant entered in the
house of the prosecutrix and committed the offence by pointing a
12 bore katta on her breast. The statements of the witnesses were
recorded, however no corroborative evidence exist. No
independent witness was examined to support the allegation. The
medical report is also not supporting the incidence. No injury on
the private or other part of the body of the prosecutrix was found.
The prosecutrix was habitual of intercourse. In the manner the
incident has been narrated, cannot repose confidence. The charge
has not been proved beyond doubt, yet the Court below recorded
conviction based on probabilities, whereas the charge has to be
proved beyond reasonable doubt.
3. Learned counsel for the appellant has made reference
of the statements of the witnesses to show that either they have
denied the incidence or otherwise their evidence is based on
hearsay statement. It has come that the allegations were levelled
out of rivalry between the accused and the prosecutrix’s husband.
PW7 Harpyari, prosecutrix has supported the incidence, which is
not supported by corroborative evidence, thus should not have
been relied upon by the Court below. The accused-appellant
should have been acquitted of the offence. The prayer is
accordingly made to allow the appeal and set aside the impugned
judgment of conviction and sentence of the accused-appellant for
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[CRLA-423/1990]
offence under Section 457 and 376 IPC.
4. Per contra, learned Public Prosecutor has opposed the
arguments and supported the impugned order. The reference of
the witnesses produced by the prosecution has been given to
show proof of the offence beyond doubt. The prosecutrix Harpyari
supported the allegations and other witnesses have made the
statements to corroborate it. In view of the above, interference in
the impugned order may not be made. The injuries on the private
or other part of the body of the prosecutrix do not exist due to use
of katta for commission of offence. The prayer is accordingly made
to dismiss the appeal preferred by the accused-appellant, whose
sentence was otherwise suspended during pendency of the appeal.
5. I have considered the rival submissions of the parties
and perused the record.
6. On 22.01.1988, a written report was submitted by the
prosecutrix at Police Station Bari, District Dholpur for offence
under Sections 376 and 457 IPC committed in the night
20/21.01.1988. It was alleged that while the prosecutrix was
sleeping in her house, then at about 11.00 PM, the accused
entered in the house after opening the door. He pointed a 12 bore
katta on her and committed the offence. On the basis of the
written report, the police registered the FIR and started
investigation. After investigation, charge-sheet was filed against
the petitioner. The Court below framed charges for offence under
Sections 457 and 376 IPC against the accused-appellant. It was
denied and he claimed to be tried. In support of the case,
prosecution examined as many as 13 witnesses and exhibited
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several documents. After completion of the trial, the Court below
convicted and sentenced the accused-appellant in the manner
indicated hereinabove.
7. PW7 Harpyari, the prosecutrix, supported the
allegations made by her. It was stated that the accused-appellant
entered in her house and committed the offence against her
wishes after pointing a 12 bore gun on her. He then ran away after
commission of the offence. She informed her mother-in-law about
the incident. It was however admitted that her husband was also
working in the mines and on the day of incidence, he was not
available in the house. It was also admitted that she was living
separately from her in-laws. She also admitted that one child was
sleeping with her on the cot. On the other cot her two children
were sleeping.
8. PW9 Kanchania has stated about the incidence, as
narrated by the prosecutrix. PW10 Mooli did not support the
prosecution case and also did not endorse his police statement
Exhibit P11. PW12 Ram Khiladi is the husband of the prosecutrix.
He made statement, as was narrated by his wife. It was also
admitted that he was working in the mines. PW13 Shiv Devi also
made hearsay statement, as narrated to her by the prosecutrix,
however she was not knowing about the rivalry between the two.
9. PW5 Dr. Beena Goyal had examined the prosecutrix.
She did not report any injury on the private or any part of the
body of the prosecutrix. No semen was found. Thus, she did not
give report about the commission of rape.
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10. PW8 Kaptan also did not support the prosecution case
and even denied the statement recorded as Exhibit P10. Other
witnesses are of the prosecution itself. PW1 Mukesh Kumar, PW2
Nihal Singh, PW8 Kaptan and PW10 Mooli thus did not support the
prosecution case, rather they were declared hostile. The Court
below found it to be a case of circumstantial evidence and
convicted the accused-appellant even after finding the medical
report to be not corroborating the incidence. It was observed that
the injury may not have been received due to use of gun for
commission of offence. I however find that the evidence does not
exist to support the allegation beyond doubt. The 12 bore katta
has not been recovered which is said to have been used at the
time of comission of offence. In view of the above, the medical
report gets relevance. It does not support the allegation as no
injury on private or other part of the body of the prosecutrix was
found. Even semen was not found at the time of medical
examination of the prosecutrix, as per the statement of PW5 Dr.
Beena Goyal. It is also a fact that while the offence is said to have
committed, the prosecutrix’s child was also sleeping with her on
the cot yet he could not know about the incidence. Rivalry
between the accused and the prosecutrix’s husband has also come
on record.
11. In view of the above, other than the statement of the
prosecutrix PW7, no corroborative evidence exists because all
other witnesses have made the statements about the incidence, as
was narrated to them by the prosecutrix herself. The independent
witnesses have been declared hostile and thus they did not
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support the prosecution case. Delay in lodging of the FIR was also
material, but it has been ignored by the Court below while
convicting the accused-appellant.
12. Taking into consideration the aforesaid, this Court is of
the opinion that the prosecution has not been able to prove its
case beyond reasonable doubt and the impugned judgment of
conviction and sentence deserves to be quashed and set aside and
the accused-appellant deserves to be acquitted of the charges
levelled against him.
13. In view of the discussion made above, the appeal is
allowed. The impugned judgment dated 03.11.1990 passed by the
Court below is set aside. The accused-appellant is on bail. His bail
bonds are discharged.
14. However, keeping in view the provisions of Section 437-
A of the Code of Criminal Procedure, the appellant is directed to
forthwith furnish a personal bond in the sum of Rs.20,000/- with
one surety in the like amount before the Court below. The bonds
so furnished shall be effective for a period of six months and shall
contain an undertaking that in the event of filing of a Special
Leave Petition against the judgment or on grant of leave, the
appellant, on receipt of notice thereof, shall appear before the
Apex Court.
(M.N. BHANDARI)J.
KKC/12