Babu Singh vs State on 4 December, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN0

AT JODHPUR

D.B. Criminal Appeal No. 1010 / 2016

Babu Singh S/o Sumer Singh Rajput, Aged About 24 Years,
Panota, Police Station Khinwada, Tehsil Desuri, Distt. Pali (raj.)

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. D.S. Gaur Mr. B.P. Goswami.

For Respondent(s) : Mr. C.S. Ojha, PP.
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR

JUDGMENT

[Per Hon‟ble Mr. G.K. Vyas, J.]

Date of Judgment: 4th December, 2017

In this criminal appeal filed under Section 374 Cr.P.C.,

appellant- Babu Singh is challenging the validity of judgment

dated 21st of October 2016 passed by learned Special Judge,

SC/ST (Prevention of Atrocities) Cases, Pali in Session Case

No.138/2010, whereby the trial court convicted the accused

appellant for offences under Sections 376, 342 447 of IPC and
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Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and

sentenced him as under:

376 of IPC: 10 years‟ simple imprisonment
along with fine of Rs.10,000/-.

In default of payment of fine to
further undergo three months‟
additional simple imprisonment.

342 of IPC: 1 year‟s simple imprisonment
along with fine of Rs.1,000/-. In
default of payment of fine to
further undergo one month‟s
simple imprisonment.

447 of IPC: 3 months‟ simple imprisonment
along with fine of Rs.500/-. In
default of payment of fine to
further undergo fifteen days‟
additional simple imprisonment.

Briefly stated, the facts of the case are that on 23.08.2010,

a written complaint (Ex.P/1) was submitted by complainant-

Chhoga Ram (father of the prosecutrix Ms. “R”) under his thumb

impression, in which following allegations were levelled:

“lo
s k eas

Jheku Fkkuns kj lkgc
iqfyl Fkkuk ¼f[kokMk½
ftyk ikyh

egkns ; th]
fuons u Nkxs kjke S/o jxkjke tkfr e?s koky fuoklh iukrs k vjV
yPNkjke dk ;g gS fd eSa ejs s ifjokj ljgn iukrs k ojs k ij ifjokj lfgr
jgrk gaw vkt fnukd a 23-8-10 dks lqcg djhc 9 cts eSa o ejs h /keZiRuh
Jherh lk;jh nkus ks xqMk+ vkldj.k ejs s fjLrns kjh eas ekSr gkus s ls 12 fnu
ij cSBus ds fy, x;s gq, Fks ihNs vjV ij ejs h iqh Ms. “R” 18 lky
dh vdy s h Fkh oDr djhc 1-30 fi;e ij eqs :ikjke S/o yPNk th
tkfr e?s koky tks ejs s dk yxrk gS Vy s hQkus ij crk;k fd rqe tYnh ls
?kj ij vkvks rc eSua s iN
w k fd D;k gqvk rks crk;k fd ?kj ij tYnh vkvks
(3 of 17)
[CRLA-1010/2016]

rc eaS o ejs h iRuh nkus ks cjs s ij vk;s rks ejs h iqh Ms. “R” us crk;k fd
eSa vius cjs s ds tko eas cdfj;k vk tkus ls cdfj;k fudkyus tko eas xbZ
rks ckcq flga S/o lqejs flga tkfr jktirw fuoklh iukrs k ;kxrk ejs s tko
eas vk;k ihNs ls idM+dj tcjLrh uhps iVd dj ejs s lkFk cykRdkj
¼[kkVs k dke½ fd;k eSa fpYykbZ rc :ikjke th o ekxa hyky S/o idkth
tkV fuoklh csjk uokMs + Hkkx dj vk;s rc ckcqflga eqs NkMs d
+ j Hkkx x;kA
q s ejs h iqh Ms. “R” o ejs s dkdk :ikjke us crkbAZ ckcqflga
;g ckr e
us ejs h iqh Ms. “R” dks vdy
s k tko eas n[s kdj cykRdkj fd;k gSA eSa
ejs h iqh Ms. “R” dks lkFk yd
s j fjikVs Z djus vk;k gaw dkuuw h dk;oZ kgh
djkoAs ?kVuk djhc 1 cts dh gSA
vxa q’B fu”kkuh
Nkxs kjke”

Upon perusal of complaint (Ex.P/1), it is revealed that at the

time of submitting of aforesaid complaint (Ex.P/1), prosecutrix Ms.

“R” also accompanied with her father at Police Station- Khinwada,

District Pali and as per statement of prosecutrix the complaint was

written by her.

The S.H.O., Police Station Khinwada, upon receipt of written

complaint submitted by Chhoga Ram, registered a formal F.I.R.

No.84/2010 on 23.08.2010 under Section 376 of IPC read with

Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act (for

short, hereinafter referred to as „Act‟) and commenced the

investigation.

As per investigation officer, during investigation, site plan

(Ex.P/2) was prepared and all the proceedings were recorded at

the place of occurrence. The prosecutrix Ms. “R” was taken to

Bangad Hospital, Pali for medical examination where the Medical

Jurist of the hospital, after medical examination, gave report

(Ex.P/3) on 24.08.2010 at 09.30 AM. The cloths of the prosecutrix
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which she was wearing at the time of occurrence were taken in

possession vide Ex.P/4 produced by complainant, Chhoga Ram on

24.08.2010. After registration of the FIR, statements (Ex.P/5) of

the prosecutrix Ms. “R” were recorded u/s 164 Cr.P.C. by the

Judicial Magistrate, First Class, Bali on 31.08.2009.

Accused appellant was arrested on 24.08.2010 at 06.00 PM

vide Ex.P/7, the cloths of accused appellant- Babu Singh which he

was wearing at the time of commission of offence, were taken in

possession vide Ex.P/8 by the investigating officer. The x-ray of

the prosecutrix was also conducted to ascertain her age and the

report (Ex.P/15) was given by the Medical Board with regard to

age of the prosecutrix

On completion of investigation, the police filed charge

sheeted against the accused appellant in the court of Judicial

Magistrate, Desuri under Section 376, 447 342 IPC and Section

3 (2) (v) of the Act. The learned Magistrate committed the case to

the court of Special Judge, SC/ST (Prevention of Atrocities) Cases,

Pali for trial.

After providing opportunity of hearing to the appellant,

charges were framed by the trial court against the accused

appellant, Babu Singh, under Sections 447, 342, 376 IPC r/w 3

(2) (v) of the Act, which he denied and claimed trial.

In support of prosecution case, statements of 16 witnesses

were recorded in the trial including statements of complainant

Chhoga Ram (PW.1) and prosecutrix Ms. “R” (PW.3). After

recording the evidence of prosecution, the learned trial court

proceeded to record the statements of accused appellant under
(5 of 17)
[CRLA-1010/2016]

Section 313 Cr.P.C. in which allegations levelled by the

prosecution witnesses were denied by the accused appellant and

specifically said that only to squeeze money from the

Government, this false case has been registered and no such

offence was committed by him. In defence, though oral evidence

was not produced but number of documents (12 in number) were

exhibited including love letters written by the prosecutrix to the

appellant and photograph, and statements of Ruparam and

Mangilal Ex.D/2 and D/3 were also exhibited in defence.

The learned trial court after hearing final arguments of the

parties convicted the accused appellant Babu Singh for offence

under Sections 447, 342 and 376 of IPC Section 3 (2) (v) of the

Act and passed sentence mentioned above, vide judgment dated

21.10.2016 passed in Session Case No.138/2010. In this appeal,

the said judgment is under challenge.

Learned counsel for the appellant vehemently argued that a

grave error has been committed by the trial court in convicting the

accused appellant for such serious offence because there is no iota

of evidence for commission of alleged crime by the accused

appellant, more so, as per evidence produced by the appellant, it

is a clear case of love affairs between the girl and the appellant.

However, only to give it colour of rape with ulterior motive, the

FIR was filed but all allegations levelled by the prosecutrix have

not been corroborated or supported by medical evidence,

therefore, it can be said that the trial court has committed error

so as to convict the accused appellant for alleged offence of rape.

Learned counsel for the appellant further submitted that
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neither the victim (PW.3- Ms. “R”) nor complainant PW.1- Chhoga

Ram or the mother of the prosecutrix viz. PW.2- Sayri Devi, stated

on oath that they are by caste “Meghwal”. Thus the trial court has

seriously erred in accepting the prosecution case that offence was

committed by the accused appellant with a girl of SC community,

which is possible under Section 3 (2) 9v) of the Act.

While inviting our attention towards the statements of PW.4-

Chhogaram, PW.5- Ruparam and PW.6- Mangilal, it is submitted

that none of the witness stated on oath that victim belongs to SC

community and the offence of rape has been committed upon her

to malign image of girl of Sc category. Thus the finding of learned

trial court so as to convict the accused appellant for offence under

Section 3 (2) (v) of the Act is not sustainable in law.

Learned counsel for the appellant vehemently argued that in

this case investigation was conducted by Deputy Superintendent

of Police, Pali, but the said witness has not been produced in

evidence by the prosecution, however, the S.H.O., Police Station-

Khinwada, nowhere said that victim belongs to SC community as

defined under the SC/ST Act. According to learned counsel for the

accused appellant, in absence of any reliable evidence on oath it

cannot be presumed that offence under Section 3 (2) (v) of the

SC/AT Act is made out against the accused appellant. Further

contention of the learned counsel for the appellant is that no

documentary evidence was produced to prove the cast of the

victim, therefore, no question was put to accused appellant while

examining him under Section 313 Cr.P.C. Thus, it is a case in

which false case was registered by police so as to indulge the
(7 of 17)
[CRLA-1010/2016]

appellant with the alleged crime of rape with a girl of SC

community.

Learned counsel for the appellant submitted that finding for

trespass by the appellant upon the land of complainant with

intention to annoy or intimidate the owner of the property is

totally baseless because no such evidence has come on record,

therefore, there is no question to hold the accused appellant guilty

for offence under Sections 447 and 342 of IPC. According to

learned counsel for the appellant in paragraphs 43 and 44 of the

judgment, the learned trial court gave finding that accused

appellant is guilty for offence u/s 376 of IPC, but by going through

such finding in those paragraphs, it does not transpire that the

trial court has appreciated the evidence in correct perspective, the

effect of contradictory evidence of prosecutrix and medical

evidence in which fact of rape has not been proved, has not been

considered properly by the trial court, therefore, the finding of

guilt recorded against the accused appellant for offence u/s 376

IPC is liable to be quashed.

It is further submitted that doctor PW.15- Dr. S.K. Bhandari,

who examined the victim has categorically stated on oath that no

rape has been committed with her, nor any force was used against

the victim to commit rape. Thus even if the fact of sexual inter-

course is admitted for instance, then too, it is clear that it is a

case of consensual relation. The prosecution has thus utterly failed

to establish the allegation of rape upon the victim. In the medical

evidence, no injuries on the private part of internal organ were

detected, nor it has come out that rape was committed with the
(8 of 17)
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prosecutrix. Thus, the entire story of the prosecution for

commission of rape is false and concocted one, and the finding of

guilt arrived at by the trial court for offence under Section 376 IPC

which is not even corroborated by medical evidence, is not

sustainable in law.

Learned counsel for the accused appellant further submitted

that victim in her statements stated that accused appellant caught

hold of her, on which she fell down in the field, and the accused

committed rape with her, but this fact is not corroborated by

independent medical evidence available on record because no

mark of external injury on the back of other part of the body of

prosecutrix were found. Probably, the instant case has been filed

by the prosecutrix under the pressure of her family members,

which is evident from the fact that in defence number of love

letters which were written by prosecutrix were placed on record,

for which although prosecutrix refused to accept the said fact, but

this court has ample power to examine the hand-writing while

comparing the signatures of the prosecutrix with other documents.

The crux of the argument of learned counsel for the appellant is

that whole prosecution story is based upon concocted and facts

because medical evidence did not support and corroborate the

prosecution case for commission of rape. There is no evidence to

prove that prosecutrix belongs to SC community. The FSL report is

also not record, therefore, it is submitted that the finding of

learned trial court based upon oral and documentary evidence

suffers from patent illegality inasmuch as the evidence has not

been considered properly by the trial court so as to hold accused
(9 of 17)
[CRLA-1010/2016]

appellant guilty. In absence of any corroborative more specifically

medical evidence, how it can be presumed that rape was

committed by the appellant with the victim, who belongs to SC

community.

Learned counsel for the appellant submitted that it is a case

in which judgment impugned deserves to be quashed because the

prosecution has completely failed to prove its case beyond

reasonable doubt.

Per contra, learned Public Prosecutor vehemently argued

that at the time of registration of the FIR, it was specifically

disclosed by the complainant that he is by caste Meghwal, which

comes under SC category. It is also argued that as per verdict of

Hon‟ble Apex Court, statement of the prosecutrix is relevant so as

to ascertain correctness of fact. In this case, at the time of

registration of the FIR, the prosecutrix was very much present at

police station. Thereafter, her statements were recorded under

Section 164 of Cr.P.C. in which specific allegation was levelled by

her against the accused appellant. It is true that in medical

reports there is opinion of the doctor that there is no evidence for

committing inter-course, but at the same time, it is required to be

considered that a girl of 18 years will make false allegation

because her own prestige become subject-matter, therefore,

argument of the learned counsel for the appellant that prosecution

has failed to prove its case beyond reasonable doubt, does not

arise. With regard to love letters, which were exhibited in defence,

it is submitted that the prosecutrix has completely denied to have

written these letters. Therefore, how it can be presumed that
(10 of 17)
[CRLA-1010/2016]

these letters which were exhibited in defence, are genuine or can

be treated to be evidence to ascertain the fact of consent. If

accused appellant relied upon those document, then, it was his

duty to file application for sending those documents to

handwriting expert so as to ascertain correctness of the fact for

writing these letters by the prosecutrix, but it has not been done,

therefore, the trial court disbelieved the allegation of writing love

letters by the prosecutrix to the accused appellant.

While inviting our attention towards photographs (Ex.D/1), it

is submitted that it is a fabricated document and the same has

been used by the accused appellant in defence. Therefore, he is

liable to be prosecuted for filing such type of false document

during trial. The learned Public Prosecutor vehemently submitted

that finding arrived at by the trial court so as to hold accused

appellant guilty for commission of offence under Sections 376,

342 and 447 of IPC Section 3 (2) (v) of the SC/ST Act does not

require any interference, therefore, the instant appeal may kindly

be dismissed.

After hearing the learned counsel for the parties, we have

minutely scanned the entire evidence of prosecution as well as of

defence. Complainant- Chhoga Ram, father of the prosecutrix Ms.

“R” submitted a hand-written report before the S.H.O., Police

Station Khinwada, in which specific allegation was levelled by him

that accused appellant- Babu Singh, forcibly committed rape with

his daughter and said that witnesses, namely, Ruparam and

Mangilal came there and on seeing them, accused appellant ran

away from the place of occurrence. The said FIR was registered on
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23.10.2010 and statements of the prosecutrix were recorded on

31.10.2010, during this period, the prosecutrix was medically

examined by the doctor and medical report (Ex.P/3) was given by

the medical jurist. The x-ray was also conducted at Bangar

Hospital, Pali to ascertain the age of prosecutrix and as per x-ray

report (Ex.P/15), prosecutrix was 17-18 years, of age.

In the trial, statements of doctor PW.15- Dr. S. K. Bhandari

of Bangad Hospital, Pali were recorded, in which the witness

deposed on oath that upon medical examination of prosecutrix no

symptoms of inter-course were found, therefore, the samples

were sent to the FSL for further investigation. The statements of

PW.15- Dr. S.K. Bhandari, reads as under:

“eSa fnukd
a 23-08-10 vkSj 24-08-10 dks ckxa M+ vLirky ikyh eas
efs Mdy T;fw j’B ds in ij dk;jZ r FkkA ml jkt s eSua s iqfyl rgjhj ij
eSua s j[s kk iqh Nkxs kjke dk mez tkp a grs q ijh{k.k fd;kA mez ckcr rhu
,Dljs djok;s x;s Fks tks ,Dljs uEcj 1- nkus kas dkgs uh] 2- nkus kas dykbZ 3-
dej dk ,Dljs djok;k x;k rFkk jfs M;ky s kftLV dh vuqifLFkfr eas eSa tks
jk; nh oks , ls ch gSA ftl jk; ds rgr ik;k x;k fd j[s kk 17 ls 18
lky dh mez eas gS bleas MkW Mh-ds lkjMk] MkW- dSyk”k ifjgkj ,oa eSa Lo;a
ckMs Z ds eEs cjkas }kjk fd;k x;k FkkA j[s kk dk ijh{k.k ckMs Z ds eEs cj }kjk
fd;k x;k FkkA gM~Mh jkxs fo”k’s kK MkW- dSyk”k ifjgkj ,oa ltuZ MkW- Mh-d-s
lkjMk ,oa ejs s }kjk ijh{k.k djus ij ik;k fd j[s kk dh mez 17 ls 18 o’kZ
rd dh FkhA j[s kk dh mez ckcr tkp a fjikVs Z inz “kZ ih15 gS ftl ij , ls
ch ejs ]s lh ls Mh] Mh-ds lkjMk] bZ ls ,Q dSyk”k ifjgkj ds gLrk{kj gSa
,ot a h ls ,p ge ckMs Z eEs cjkas dh jk; gSA j[s kk dks ijh{k.k grs q pUnu
flga ] lxa hrk dkLa Vcs y ds }kjk i”s k fd;k x;k FkkA
Mlh jkt
s eSua s j[s kk dk mez ,oa leHkkxs ckcr ijh{k.k fd;k Fkk tks
lxa hrk ,oa pUnu flga dkLa Vcs y f[kokMk ikyh dh mifLFkfr eas fd;k FkkA
mleas yMs h MkWDVj }kjk nh x;h fjikVs Z dyec) gS ftldh fjikVs Z ds
vk/kkj ij ik;k fd vko”;d lEs iy] ,Q,l,y ds fy, Hkt s s x;s tks
efgyk fpfdRld }kjk fy;s x;s tks 1] 2 vkSj 3 uEcj ds FkAs fjikVs Z ds
vk/kkj ij crk;k x;k Fkk fd mlds lkFk dkbs Z tkjs tcjnLrh ugha gq;h
(12 of 17)
[CRLA-1010/2016]

Fkh vkSj izkboZ Vs ikVZ ij dkbs Z pkVas s ugha ik;h x;h Fkh mldh mez 17 ls 18
o’kZ ds chp ekuh x;h Fkh ,oa vko”;d lEs iy lEHkkxs gqvk ;k ugha vk;k
gqvk mldks ,Q,l,y grs q Hkt s nh FkhA izn”kZ ih3 ij , ls ch ds
gLrk{kj j[s kk ds gS tks eSua s djok;s Fk]s lh ls Mh iqfyl dkLa Vcs y lxa hrk
ds gLrk{kj gS] bZ ls ,Q ejs s gLrk{kj gS ,oa th ls ,p ejs h jk; efgyk
fpfdRld ds ijh{k.k ds vk/kkj ij gAS
ftjg }kjk vfHk;qDr ds vf/koDrk Jh “kkSrku flga
;g lgh gS fd inz “kZ ih15 eas vkbZ ls ts fgLls eas vuqekfur mez
dk fy[kk gqvk gSA ;g lgh gS fd inz “kZ ih15 eas ,DtV mez ugha crk;h
x;h gS vuqekfur mez gh crk;h d;h gSA ;g lgh gS fd izn”kZ ih15 esa
mez tks 17 ls 18 o’kZ crk;h gS oks ,Dljs n[s kdj crk;k gAS eSa
jfs M;kys kfs tLV dk ,DliVZ ugha gAaw ;g lgh gS fd eSa ,Dljs IyVs n[s kdj
mez ckcr viuh jk; ugha ns ldrk gaw D;kfas d mleas ejs h fl)gLrrk ugha
gSA ,Dljs “kehe VDs uhf”k;u us dh FkAs tks ,Dljs ejs s lkeus fd;s FkAs ge
vkWlhQhd”s ku dk ¶;t w u l¶s V ls n[s krs gSA vyx2 mez dk vyx2
¶;t w u gkrs k gSA ykos j ,.M dk gyuk] ¶;t w u 17 ls 18 o’kZ dh mez es
gkrs k gSA ;g ejs h jk; ds vuqlkj Qhej ds vij,.M dk gSM vkjS k yl s j
vkSj xVs j VkWdUs Vj 17 ls 18 o’kZ dh mez eas gksrk gS rFkk ,dkes h;u dk
¶;t w u 17 ls 18 o’kZ dh mez eas gkrs k gSA ;g lgh gS fd eSua s ejs s ,DliVZ
dh jk; ds vuqlkj QnZ izn”kZ ih15 eas fy[kk gSA ;g lgh gS fd ,DliVZ
us eqs cky s dj fy[kok;h FkhA MkW- Mh- ds lkjMk vkSj dSyk”k ifjgkj nkus kas
ckxa M+ vLirky eas dk;Zjr gSA inz “kZ ih3 dh jk; Hkh yMs h MkWDVj us dh
gSA ;g lgh gS fd inz “kZ ih3 eas vkbZ ls ts Hkkx eas j[s kk ds ckgjh vkjS
vkUrfjd Hkkx eas fdlh izdkj ds pkVs ds fu”kku ugha FkAs ;g lgh gS fd
izn”kZ ih3 eas ds ls ,y fgLLs eas mlds lkFk eas fudV Hkrw eas dkbs Z
bUVjdkl s Z ugha gqvkA ;g lgh gS fd izn”kZ ih3 ds vuqlkj j[s kk ds lkFk
fdlh rjg dh dkbs Z tcjnLrh ugha gq;h Fkh vkjS dkbs Z cykRdkj ugha gqvk
FkkA”

In view of above statement, it is obvious that allegation of

prosecutrix as well as complainant for rape has not been

corroborated by the medical evidence as also from statements of

Dr. S.K. Bhandari, who was working as Medical Jurist at Bangad

Hospital Pali. It is worthwhile to observe that in defence, number
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of letters were submitted by the accused to show that prosecutrix

was having love affairs with him. Those love letters were exhibited

as Ex.D/2 to Ex.D/11, in the trial. In the cross-examination, a

question was put to the prosecutrix Ms. “R” about those letters

Ex.D/2 to Ex.D/11, but she refused to accept that those letters

were written by her to the accused appellant. It is also stated by

the prosecutrix that she is not having any love affair with

appellant but a specific question was put to the prosecutrix with

respect to allegation of inter-course made by her in the

statements (Ex.P/15) recorded under Section 164 Cr.P.C., in

which to reply the question of rape, following rely was given by

the prosecutrix, which reads as under:

“—

;s lgh gS fd bZ,Dlih ih5 es eSua s eq[; ijh{k.k eas crkbZ ckr
**,d ckr eqga ij j[kk — [kky s fn;k** ugha fy[kkbZ FkhA ;s lgh gS fd
bZ,Dlih5 es eSua s eq[; ijh{k.k dh ckr *** mlus viuk fyxa —-;kus h eas
Mky fn;k** — ugha fy[kkbZ gSA eq s dos y idMk+ gks rks Hkh eSa mldks xyr
dke dgrh gAaw “

Similarly, with respect of Ex.P/4, whereby the cloths of the

prosecutrix were taken in possession from her father, Chhoga

Ram, it is stated by the prosecutrix that although said documents

bears her signatures but it is wrong to say that her clothes were

given by her father to the investigating officer.

Upon assessment of medical evidence, so also, statements of

the prosecutrix, it is abundantly clear that prosecution has failed

to prove its case beyond reasonable doubt. Of course, in the

examination-in-chief, allegations are levelled for committing rape

by the prosecutrix but in the cross-examination, it is specifically
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stated by her that no inter-course was committed by the accused

appellant with her.

The prosecutrix PW.3- Ms. “R” categorically stated in the

cross-examination that the written report (Ex.P/1) was written by

her and the same was submitted under the thumb impression of

her father. The following statement was made by prosecutrix,

which reads as under:

“fjikV
s Z bZ,Dlih1 eSusa s gkFk ls fy[kkh FkhA eqs fjikVZ fdlh us
fy[kokbZ ugha FkhA fjikVs Z fy[kus ls igys eSus s esjs firkth dks ckr crkbZ
FkhA ejs s firkth ekStnw gS blfy;s cMs+ gkus s ls eSus fjikVs Z b,Z Dlih1 eas
fuons u Nkxs kjke th dk fy[kk;k gSA ;s lgh gS fd bZ,Dlih1 euaS s
firkth ds dgs vuqlkj fy[kh gSA ;s lgh gS fd bZ,Dlih1 fjikVs Z eSua s
fy[kdj euaS s gLrk{kj ugha fd;s FkAs “

The letters Ex.D/2 to Ex.D/11 were not examined by the

handwriting expert to ascertain the authorship, therefore, while

exercising power under Section 73 of the Evidence Act, we have

compared the hand-writing of prosecutrix available on Ex.P/1

(written report) with the letters (Ex.D/2 to Ex.D/11) produced by

the accused appellant during trial in his defence. In our opinion,

there is no doubt that letters exhibited by the accused appellant in

his defence are in the hand-writing of the prosecutrix herself,

therefore, even if the documents, letters Ex.D/2 to Ex.D/11 were

not sent to the hand writing expert for examination, but upon

comparison by us, we have no hesitation to hold that the letters

Ex.D/2 to Ex.D/11 are in the handwriting of the prosecutrix.

Upon assessment of statements of the prosecutrix and her

father- Chhoga Ram, coupled with medical evidence, we are of the

opinion that prosecution has failed to prove the allegation of inter-

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course against the accused appellant, therefore, finding of

conviction for offence under Section 376 IPC is not sustainable in

law. However, at the same time, we cannot disbelieve the

statements of prosecutrix PW.3-Ms. “R” and statements of

witnesses PW.1- Chhoga Ram, PW.2- Satyri and PW.5- Rupa Ram

and PW.6- Mangilal completely. It appears that some incident took

place either with the consent of prosecutrix or forcibly by the

accused appellant, but there is no evidence on record to prove the

fact that rape was committed by the accused appellant with the

prosecutrix. As per medical report neither any injury was found

upon the body of prosecutrix nor any symptoms for inter-course

was in existence, therefore, in absence of corroboration by

medical evidence to prove the fact of inter-course, it cannot be

presumed that finding of learned trial court so as to hold accused

appellant guilty for commission of offence under Section 376 of

IPC is made out.

So far as letters (Ex.D/2 to Ex.D/11) are concerned, we have

already observed that these letters are in the hand-writing of

prosecutrix herself, therefore, obviously it cannot be said that in

this case, Section 3 (2) (v) of the SC/ST Act will apply because it

is a case in which there is ample evidence to prove the fact that

relationship of prosecutrix and accused appellant was cordial

because they were having good relationship as friends. Thus the

allegation of the prosecution for committing rape with girl of SC

community with intention that she belongs to SC category, has

not been proved. It appears that due to fear of parents, the

prosecutrix levelled allegations in her statements (Ex.P/5)
(16 of 17)
[CRLA-1010/2016]

recorded under Section 164 Cr.P.C. and denied in the statements

during trial, because as per medical evidence those allegations are

not proved, so also, the prosecutrix PW.3 categorically accepted in

her cross-examination that no inter-course was committed by the

accused appellant, but only he has touched her. Therefore, we are

of the opinion that the finding of guilty recorded by the trial court

for offence under Section 376 IPC and Section 3 (2) (v) of the

SC/ST Act is not sustainable in law because it has not been proved

by the prosecution, but at the same time, we are of the opinion

that the prosecution has succeeded to prove the fact that accused

appellant entered in the agricultural field of PW.1- Chhoga Ram

and tried to outrage the modesty of PW.3 Mst. “R”, which is

punishable under Section 354 of IPC.

In view of above, we hold that finding of guilt recorded by

the trial court against the accused appellant for offence u/s 376

IPC and Section 3 (2) (v) of the SC/ST Act, deserves to be

quashed.

Consequently, the instant criminal appeal is partly allowed.

The finding of conviction and sentence of accused appellant for

offence under Section 376 IPC and Section 3 (2) (v) of SC/ST

(Prevention of Atrocities) Act, 1989, recorded by the trial court

vide judgment dated 21st of October 2016 in Session Case

No.138/2010, is hereby quashed and set aside, but the accused

appellant is hereby held guilty for committing offence under

Section 354 of IPC, further the conviction of the accused appellant

for offences under Sections 342 447 is hereby maintained. The

accused appellant remained in custody from 25.08.2010 to
(17 of 17)
[CRLA-1010/2016]

17.11.2011 during trial and from 21.10.2016 till today he is in

confinement, therefore, the sentence for said offence is hereby

reduced to the period already undergone. The accused appellant

be set at free, if any not required in any other case.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant is directed to forthwith furnish

personal bonds in the sum of Rs.20,000/- and a surety bond in

the like amount each, before the learned trial court, which shall be

effective for a period of six months to the effect that in the event

of filing of Special Leave Petition against the judgment or for grant

of leave, the appellant, on receipt of notice thereof, shall appear

before Hon’ble the Supreme Court.

(DR. VIRENDRA KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J.

DJ/-

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