HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.196/ 2016
Teja Ram @ Bheem S/o Pemaji, by Castese Devasi, age 29 years,
R/o Dayalpura, P.S. Raas, District Pali.
(At present lodged in Central Jail, Jodhpur.)
—-Appellant
Versus
The State of Rajasthan
—-Respondent
__
For appellant : Mr. C.S. Rajpurohit
For Respondent : Mr. J.P.S. Choudhary, Public Prosecutor
__
HON’BLE MR. JUSTICE GOVIND MATHUR
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Per Hon’ble Vinit Kumar Mathur, J.
18.08.2017
The appellant has preferred this appeal assailing the
judgment and order dated 08.02.2016 passed by learned Special
Judge, Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act Cases, Pali in Sessions Case No.14/2014.
By the judgment aforesaid, the appellant-accused has been
convicted with sentence of imprisonment for life for the offence
under Section 376 IPC read with Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Briefly, the facts in the matter are that on 01.11.2013
Rukma, the prosecutrix, at around 5:15 PM gave a written report
at Police Station Raas stating therein that in between 1:00 PM-
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[Cr. Appeal No.196/2016]
2:00 PM while she was waiting for a tempo for going from
Dayalpura to Raas, accused Teja Ram, who is the resident of
Dayalpura, came on his motorcycle. Accused Teja Ram gave lift to
Rukma on his motorcycle. Rukma while believing that Teja Ram is
the resident of their village sat on the motorcycle. She was taken
to Gaga Magri on a ‘Kachha’ Road and thereafter taking her
behind the bushes, the rape was committed by Teja Ram. Since,
it was far flung area, even on her shouting, she could not get any
help. Accused Teja Ram threatened her that if she tell the incident
to anybody she and her husband will be killed. She was
frightened and, therefore, she asked for legal action against the
accused Teja Ram. On this written complaint a First Information
Report No.198/2013 was registered under Section 376 IPC read
with Sections 3(2)(v) and 3 (1) (xii) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the
matter was investigated.
After completion of investigation, a charge-sheet for the
aforesaid offences was filed against the appellant-accused. The
trial Court framed charges under Section 376 IPC read with
Sections 3(2)(v) and 3(1) (xii) Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
On having denied to accept the charges aforesaid, the
appellant prayed for trial.
During the course of trial 16 witnesses were examined by the
prosecution side and 15 documents and articles were exhibited.
Thereafter, the appellant was questioned under Section 313
Cr.P.C., the accused appellant, while denying the questions stated
(3 of 11)
[Cr. Appeal No.196/2016]
that he is not guilty and has been falsely implicated in the present
case.
Learned trial Court, after hearing learned counsel for the
parties, convicted the accused-appellant for the offence under
Section 376 IPC read with Section 3(2)(v) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
sentenced for life imprisonment with a fine of Rs.10,000/-, in
default thereof, to further undergo one month’s additional simple
imprisonment.
We have heard learned counsel appearing on behalf of
appellant-accused as well as learned Public Prosecutor and have
scanned the entire record of the trial Court.
To examine the incident minutely, the statement of PW-3
Rukma Devi is the most important piece of evidence as in a case
under Section 376 IPC, the most important and vital piece of
evidence is the statement of the prosecutrix herself and it gains
importance more particularly when there is no other direct or
corroborating evidence in the matter. Keeping that in mind, the
statement of Rukma Devi, the prosecutrix gains the significance in
present case.
In her statement recorded before the trial Court, she
submitted that on 01.11.2013, on ‘Dhanteras’ while she was going
from Dayalpura to Raas, she went on Motorcycle with the
appellant-accused Teja Ram who took her behind the bushes and
did something of his own volition, she stated that ” eqyfte rstkjke
kfM+;ksa esa ys x;k vkSj esjs lkFk ^euekuh dh*A euekuh dk eryc eqyfte us esjh bTtr
ywV yhA”, thereafter she was left behind and the accused went away
(4 of 11)
[Cr. Appeal No.196/2016]
from the place of incident. She further stated that after going to
the Police Station she lodged the report under her thumb
impression and her statement under Section 164 Cr.P.C. was
recorded in the Court at Jaitaran.
In her cross-examination, the prosecutrix has submitted that
she had four children, out of which, the eldest who was 10 years
old is no more and other three children are surviving, her husband
is doing the masonry work. She further stated that there are 40-
50 houses in between her house and the house of accused Teja
Ram.
To appreciate the contents of her statement more effectively,
we deem it appropriate to reproduce the relevant parts of her
statement in vernacular for better appreciation of the facts.
“eSa eksVjlkbZfdy ij jkth[kq’kh cSBh Fkh eqs dksbZ pkdw oxSjg ugha
fn[kk;k FkkA jkLrs esa gj oDr dksbZ xkM+h] VSEiksa oxSjg pyrs jgrs
gSA——— xkxk exjh ls jksM+ ugha fn[krk gS kfM+;ksa vk tkrh gSA xkxk
exjh ge ?k.Vs Hkj :ds FksA xkxk exjh ls eSa lh/ks jkl gh xbZ VSEiksa
okyk vk;k rc eSa cSBdj xbZA VSEiksa gfjtuksa dk Fkk ml le; esjs ikl
eksckbZy Qksu Fkk tks esjs eksckbZy esa fy[ks gq, gS fQj xokg us Lyhi
fudkydj crkbZ ftlds uEcj 7742996706 gS ;s Qksu ml fnu esjs ikl
gh FkkA eSaus ml fnu esjs ifr dks blh Qksu ls Qksu djds jkl cqyk;k
FkkA ———————– ;g ckr lgh gS fd n;kyiqjk ls yxkdj xkxk exjh
rd rstkjke us esjs lkFk dksbZ tcjnLrh ugha dh FkhA —————?kVuk ds
oDr diM+s ugha QVs Fks vkSj esjs ‘kjhj ij dksbZ pksV ugha vkbZ fQj dgk
fd dkaVks ij esjs dU/ksa ij [kjksap vkbZ FkhA esjs dkaVks dh yxh gqbZ MkWDVj
dks fn[kkbZ FkhA ;g ckr lgh gS fd esjs dksbZ diM+s Hkh ugha [kqys
FksA——————- rstkjke us esjs dksbZ diM+s rks ugha QkM+s vkSj u gh eqs
(5 of 11)
[Cr. Appeal No.196/2016]m?kkM+k fd;kA ————-rstkjke us isUV gh ugha [kksyh Fkh rks eqs dSls irk
fd mlds dkSuls dyj dh v.Mjoh;j iguh gqbZ FkhA “
When this statement is read alongwith other circumstantial
evidence, the veracity of the statement itself comes under doubt
as the prosecutrix’s statement is not consistent and is not
corroborating with the medical evidence and other evidence.
The other witnesses i.e. PW-1 Satyanarayan and PW-2
Guman, who are the witnesses who have attested their signatures
on the recovery memo, have been declared hostile.
Thana Ram (PW-4) is the witness who has attested his
signature on the site plan.
Lakshman (PW-6) who is the husband of the prosecutrix has
deposed in his statement that his wife Rukma was taken on
motorcycle by the accused Teja Ram on the pretext of dropping
her on Balupura and has committed rape on the ‘Kachcha’ road
near Gaga Magri.
The other witnesses who are examined as PW-7 Bheekharam
and PW-8 Mohanlal have attested their signatures on the arrest
memo and recovery memo of the underwear of the accused Teja
Ram.
PW-12 is Bheem Singh who is the witness who has taken the
recovered material to the Forensic Science Laboratory.
PW-9 Dr. Vandana Gupta who was working as Medical Officer
at Sojat and examined the prosecutrix Smt. Rukma on
01.11.2013, very categorically submitted that there was no injury
on the private parts as well as body of the prosecutrix. A report
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to this effect Ex.-P-6 also very categorically states that “no injury
marks seen on the ext. genitalia private parts and on the body
of the case examined” and “no definite opinion can be given about
rape”.
PW-14 Jaipal Singh, the Investigating Officer has submitted
that he has investigated the matter and the recoveries has been
made as per Section 27 of the evidence Act. He further submitted
that the ‘Petikot’ of the prosecutrix was taken at 3:30 PM on
02.11.2013 from the spot of incident in the presence of
Satyanarayan and Guman.
Learned counsel for the appellant-accused submitted that
there is no evidence on record which shows or suggests that the
appellant is guilty of committing an offence under Section 376 IPC
read with Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. The statement of the
prosecutrix herself is not disclosing any offence much less the
offence alleged under Section 376 IPC read with Section 3(2)(v)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. In her statement, she herself admits that she has not
sustained any injury, she was not threatened, she was not forced
and much less even the clothes were not removed by accused Teja
Ram, therefore, he submits that offence under Section 376 IPC is
not made out in the present case and the whole story woven by
the prosecutrix is false and fabricated. Dr. Vandana Gupta has
very categorically submitted that there was no injury on the
genitalia and other body parts of Rukma which also corroborates
the fact that no offence under Section 376 IPC was committed.
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[Cr. Appeal No.196/2016]
He further submitted that there is no Forensic Science Laboratory
report on record of the Vaginal Swab or of the clothes and other
articles collected during the course of investigation. The learned
trial Court absolutely on no evidence has come to a conclusion
that the appellant is guilty of an offence under Section 376 IPC
read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
On the other hand learned Public Prosecutor has supported
the impugned judgment of conviction and order of sentence and
submitted that learned trial Court has rightly convicted the
accused-appellant for the offence under Section 376 IPC read with
Section 3(2)(v) Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 as the statement of the
prosecutrix Rukma very categorically shows that she was taken to
a lonely place on motorcycle and was subjected to rape by the
appellant-accused. In the present circumstances, there is no
reason to disbelieve the statement of the prosecutrix Rukma. The
recovery and the material collected during the investigation also
conclusively prove that the accused-appellant has rightly been
convicted for the offence under Section 376 IPC read with Section
3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The certificate of backward class has
already been produced by the complainant and, therefore, it does
not need any corroboration that she belongs to a backward class
and was subjected to sexual intercourse against her wish and
consent. Since, the offence is against the society, giving a wrong
message, therefore, life imprisonment is the only appropriate
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[Cr. Appeal No.196/2016]
punishment in the present case.
The Hon’ble Supreme Court in State of Punjab Vs. Gurmit
Singh; AIR 1996 SC 1393 has held that testimony of the
prosecutrix must be appreciated in the background of the entire
case and the trial Court must be alive to its responsibility and be
sensitive while dealing with the cases involving sexual
molestation.
This Court in Nathu Singh Vs. The State of Rajasthan; 2003
(1) Cr.L.R. [Raj.] 417 while acquitting the appellant Nathu Singh
held that the prosecutrix is a mature lady and she is habitual to
sexual intercourse and she knows the accused-appellant earlier to
the alleged incident and though there was crop of Bajra at the
height of about six feet at the place of occurrence and she was put
forcibly on the ground, but she did not receive any injury and this
fact itself goes to show that no forcible intercourse was done with
her by the accused-appellant as stated by PW-8 Smt. Devi. The
fact that her clothes were intact bangles were not broken and no
injury of any sort was found on her outward person, itself goes to
show that it was a case of consent and not forcible intercourse.
In Aziz Vs. The State of Raj.; 2013(3) WLN 502 (Raj.) while
allowing the appeal, this Court held as under:
“The prosecutrix at the time of incident was
admittedly an adult and was a married woman. The
medical report (Ex.-P-2) did not reveal any mark of
struggle on her body. The medical opinion expressed
was that she was not a virgin. The Forensic Science
Laboratory report (Ex.-P-3) did not disclose any
semen in her vaginal swab, though, it was collected
(9 of 11)
[Cr. Appeal No.196/2016]on the very same day of the incident. The situs of the
incident i.e. vicinity of the well where two other
persons were at that time taking bath and their
acquittal, though they had been earlier arrayed as co-
accused with the appellant also, in my opinion,
renders the prosecution case implausible and wanting
in credibility.”
We have examined the testimony of prosecutrix alongwith
other statements of witnesses and the documents relied upon by
the prosecution. Taking into consideration the chain of events and
the place of incident suggest that the manner in which the incident
has taken place is highly improbable. The prosecutrix without any
force on having been given lift by the accused-appellant has
boarded on his motorcycle and while passing through the area
which was inhabited by a huge number of people and was a busy
road where the traffic was also plying, therefore, if the route
which was required to be followed by the accused was not been
followed by him then in normal circumstances the prosecutrix
should have raised an alarm. Not asking for help is unusual
circumstance. The statements also shows discrepancy and the
same are also not getting corroborated by any of the material
evidence.
In our view, if a lady is thrashed on the floor against her
wishes and without her consent, then in normal circumstances,
the body of the person thrashed on the floor is bound to receive
atleast some minor injuries or scratches more particularly in this
particular case, the place where the incident occurred is a rough
surface alongwith bushes around, therefore, it is highly
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[Cr. Appeal No.196/2016]
improbable that a person will not receive injuries by the thrashes
on her body. The prosecutrix Rukma has very categorically stated
in her statement that she was never forced, the clothes were not
torn by the accused. PW-9 Dr. Vandana Gupta, on medical
examination of the prosecutrix has categorically submitted that no
injuries are present on the body as well as on genitalia of the
prosecutrix.
Taking into consideration the medical evidence and the
statements, despite the fact that there is no Forensic Science
Laboratory report on record, we are of the considered opinion that
genuineness of the story projected by the prosecutrix is highly
doubtful and to sustain the conviction on the evidence recorded,
the same is not believable and correct.
In the present case when the statement of the prosecutrix is
not inspiring confidence, there is no corroboratory evidence giving
credibility to the statement of Smt. Rukma and the medical
evidence remotely does not suggest the presence of any injury on
the body of the prosecutrix as well as her genitalia although
examined on the very same day leads us to the conclusion that
the evidence is not sufficient to sustain the conviction of the
appellant under Section 376 IPC and Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
The basic ingredients to constitute an offence under Section
376 IPC is missing in the present case. The Forensic Science
Laboratory report having not been received by learned trial Court
nor the same was produced by the prosecution at the time of trial
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to corroborate the factum of the presence of semen in the vaginal
swab or on the clothes, the place of incident and the manner in
which the prosecutrix was taken by the accused passing through
the thickly inhabited area of the village and the two attesting
witnesses of the recovery having been declared hostile takes us to
the irresistible conclusion that learned trial Court fell in error while
convicting the appellant-accused in the present case and we are of
the view that the appellant is entitled to the benefit of doubt as
the prosecution has not been able to prove the charge of rape
against the appellant-accused beyond all reasonable doubts.
The appeal is therefore allowed. The impugned judgment of
conviction and order of sentence is interfered and the same are
set aside. The appellant Teja Ram @ Bheem is acquitted of the
charges for the offence under Section 376 IPC read with Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989. In view of the acceptance of the appeal,
in above terms, we order that the appellant Teja Ram @ Bheem
S/o Pemaji, by Castese Devasi, age 29 years, R/o Dayalpura, P.S.
Raas, District Pali be released forthwith, if not required in any
other case.
Record of the court below be returned forthwith with copy of
this order.
(VINIT KUMAR MATHUR) J. (GOVIND MATHUR) J.
Ramesh/