Teja Ram @ Bheem vs State on 18 August, 2017

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-

(2 of 11)
[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
(6 of 11)
[Cr. Appeal No.196/2016]

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.

(7 of 11)
[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
(8 of 11)
[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
(10 of 11)
[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
(11 of 11)
[Cr. Appeal No.196/2016]

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/

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