Rajveer vs State on 5 June, 2017

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

__
For Appellant(s) : Mr. Pradeep Shrimal
Dr. Y.C. Sharma
For Respondent(s) : Mr. Ram Ratan Gurjar
__
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
(2 of 6)
[CRLA-423/1990]

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
(3 of 6)
[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
(4 of 6)
[CRLA-423/1990]

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.

(5 of 6)
[CRLA-423/1990]

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
(6 of 6)
[CRLA-423/1990]

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

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