HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No.439/2002
Chandra Prakash @Prakash S/o Shri Mamchand Mehra, aged 26
years, R/o Plot No.44, Patel Nagar (Mahesh Nagar), Jaipur.
—-Accused-Appellant
Versus
The State of Rajasthan through its Public Prosecutor
—-Non-Appellant
Connected With
S.B. Criminal Revision No.456/2002
Badri Narayan S/o Prabhati Lal, by caste Raigar, R/o Plot No.43,
Patel Nagar, Mahesh Nagar, Jaipur
—-Complainant-Petitioner
Versus
1. The State of Rajasthan
—-Non-Petitioner
2. Chandra Prakash @Prakash S/o Mamchand Mehra, R/o Plot
No.44, Patel Nagar, Mahesh Nagar, Jaipur.
—Accused-Non-Petitioner.
__
For Accused-Appellant : Mr.V.R. Bajwa with
Mr.Gaurav Singh
For Complainant-Petitioner : Mr.Rinesh Gupta with
Ms.Sakshi Swami
For State : Mr.B.N. Sandu, Public Prosecutor
__
(2 of 13)
[ CRLA-439/2002]
HON’BLE THE CHIEF JUSTICE
Judgment
Date of Reserve :: 23/08/2017
Date of Pronouncement :: 23/10/2017
*******
1. Believing the testimony of Choti Devi PW-1 and Tohfa
PW-7, that the prosecutrix made dying declarations to them of the
appellant Chandra Prakash having raped her on 03/11/1999 and
holding that Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10 were
written by the prosecutrix and were her dying declarations, vide
impugned judgment dated 27/03/2002, the appellant has been
convicted for the offences punishable under Sections 376 and 306
IPC. For the former offence the appellant has been sentenced to
undergo RI for a period of seven years and pay fine in sum of
₹1000/-, in default to under RI for three months. For the later
offence, same sentence has been imposed. Both sentences have
been directed to run concurrently.
2. That the prosecutrix died at 2.45 p.m. on 04/11/1999
at SMS Hospital, Jaipur and that the cause of death was her
consuming aluminium phosphate, evidenced by the FSL report of
viscera, Ex.P-32 was not disputed by learned counsel for the
appellant while arguing the appeal.
3. It is apparent that in the appeal, the attempt was to
discredit the testimony of PW-1 and PW-7. As also to question the
FSL report dated 31/05/2000, Ex.P-47 and FSL report dated
26/02/2002, Ex.C-1.
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[ CRLA-439/2002]
4. Prosecutrix was brought at SMS Hospital, Jaipur at 1.48
p.m. on 04/11/1999, evidenced by the bed-head ticket Ex.P-26.
She died at 2.45 p.m. same day, evidenced by the bed-head
ticket, Ex.P-26 and Ex.P-27. Ct. Gopal Singh PW-21 was the duty
officer at PS Mahesh Nagar, who recorded the DD entry Ex.P-31 at
5.30 p.m. noting therein that one Satish Kumar, a compounder
from SMS Hospital Jaipur had informed that a girl who was
brought to the hospital in the early hours of the afternoon had
died. S.I. Mahendra Singh PW-23 reached the hospital to make
enquiries as contemplated by Section 174 Cr.P.C. and recorded
the statement of Badri Narain PW-8, the father of the prosecutrix
at 6.00 p.m.; and suffice to state, in said statement there is no
mention by PW-8 that either his wife or his sister PW-7 had told
him that the prosecutrix had told the two that because she was
raped by the appellant she had consumed poison.
5. The next day i.e. 05/11/1999 the investigating officer
seized four slips i.e. Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8, as
recorded in the seizure memo Ex.P-4. Six days later, on
11/11/1999 he seized the slip Ex.P-10.
6. In between, on 05/11/1999 statements of PW-1, PW-7,
the sister of the prosecutrix PW-9, the brother PW-22 and her
uncle PW-3 were recorded on 05/11/1999.
7. Whereas PW-7, in her statement recorded on
05/11/1999 told the investigating officer that the prosecutrix had
told her the reason of her consuming poison was the rape
committed by the appellant, in her statement recorded on
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[ CRLA-439/2002]
05/11/1999, PW-1 did not say so. PW-9, PW-11 and PW-3 also did
not said that either PW-1 or PW-7 had told them that the
prosecutrix had consumed poison on account of being raped by
the appellant.
8. In their testimony in court, PW-1 and PW-7 maintained
that at the first instance the prosecutrix made a dying declaration
to PW-1, who immediately went to the house of PW-7 and
summoned her so that the prosecutrix could be taken to the
hospital. As per both of them, the prosecutrix repeated the same
statement when PW-7 reached the house of PW-1 where the
prosecutrix had consumed sulfas. As per the two, the slips Ex.P-5
to Ex.P-8 and Ex.P-10 were the result of the diary maintained by
the prosecutrix when they snatched the same from her hand, the
pages got torn.
9. Learned counsel for the appellant urged that from the
fact that PW-3, who was the younger brother of the father of the
prosecutrix and was a doctor at SMS Hospital, Jaipur, did not
inform S.I. Mahendra Singh that his niece had committed suicide
because she was raped by the appellant is proof that the
prosecutrix did not make any dying declaration to PW-1 or PW-7,
who certainly would have met him in the hospital and would have
told him so if indeed a dying declaration was made to them by the
prosecutrix. Questioning Ex.P-5 to Ex.P-8 and Ex.P-10, learned
counsel urged that firstly there is no evidence that the slips were
sealed. Learned counsel urged that the diary which allegedly got
torn when PW-1 attempted to snatch it from the hand of the
(5 of 13)
[ CRLA-439/2002]
prosecutrix was not seized. Learned counsel urged that the slips
were not handed over to S.I. Mahendra Singh on 04/11/1999
lends credence to the fact that the family members of the
prosecutrix got time to manufacture the writings on the slips.
Learned counsel highlighted that Ex.P-10 was handed over to the
investigating officer on 11/11/1999. Learned counsel urged that in
the reports Ex.P-47 and Ex.C-1 reasons have not been given for
the opinion that the writings were in the hand of the prosecutrix.
10. Whilst it may be true that in her initial statement
recorded under Section 161 Cr.P.C. PW-1 has not stated that her
daughter told her the reason why she had consumed sulfas and
did not state that the said statement was repeated by her
daughter when she summoned PW-7 to remove the prosecutrix to
the hospital and it would be the natural conduct of a mother to tell
said fact to her husband and the brother of her husband and the
husband and his brother in turn would so state to the investigating
officer, but in the Indian context where a family honour is
regretfully linked to the virginity of an unmarried girl, the said
omission by PW-1 can be overlooked, being the result of her fear.
Same would apply to the conduct of PW-7. If this be so, nothing
turns on the fact that the father of the prosecutrix and her uncle
did not inform the investigating officer the reason why the
prosecutrix consumed sulfas.
11. As regards the slips Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and
Ex.P-10, whilst it may be true that four of them were handed over
to the investigating officer the day next of the incident and the
(6 of 13)
[ CRLA-439/2002]
fifth seven days thereafter, but this is the fault of the investigating
officer. If the family of the prosecutrix needed time to create
written dying declarations by the prosecutrix, they would not have
resorted to the strategy of writing multiple slips and especially
Ex.P-6, which as would be noted by me hereinafter has story to
tell which is exculpatory of the guilt of the appellant.
12. In my opinion much turns on the slips Ex.P-5, Ex.P-6,
Ex.P-7, Ex.P-8 and Ex.P-10. They are undisputedly in the
handwriting of the prosecutrix. Not only the FSL reports proves
the same but even a visual comparison of the writings with the
sample writings of the prosecutrix in her registers Ex.P-11 and
Ex.P-12 prove the same. Besides the testimony of PW-9 and
PW-22, the sister and brother of the prosecutrix who would be
presumed to be familiar with the writing of the prosecutrix.
13. The slip Ex.P-5 contains writing on the front as also on
the rear of the slip. It is recorded as under:-
“21699
21 rkjh[k dks eSaus ckr dh mlus
dgkW dh esa mls vPNh yxrh gwWA irk
ugha eqs cnuke djuk pkgrk gSA ;k
vkSj dqN dgrk gS dh ,d ckj eqls
cgkj fey ys esa feyuk ugha pkgrhckr gqbZ eqs og vPNk ugha yxrk gS u
esa mlls ckr djuk ilUn djrh gwW eqs
ns[k rk jgrk gSA eqs xUnk yxrk gSA
dHkh2 xqLLkkkrk gSA tgj [kkdj ej
tkÅ””
(7 of 13)
[ CRLA-439/2002]
14. Translated, the writing is:-
“21-6-99
On 21 I had a talk with him he told me that he likes
her. I do not know, whether he wants to defame me.
He is asking me to meet outside but I do not want to
meet him I do not like him I do not like talking to him.
He keeps on staring at me I hate him. Sometimes I
get very angry. I feel like consuming poison and
dying”
15. Writing on Ex.P-7 is also on both sides of the slip of
paper. It reads:-
“igys crk;k gSA
dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqeqn
dqeqn dqeqn dqeqn dqeqn dqjkedj.k ekS;Z ekekth 29@10@99 dks tgj [kkl fy;k
vk;dj foHkkx ij Hkxoku dks eUtqj u Fkk
:e uEcj 317 iih 1999
rhljh eafty tqykbZ 27
Qksu u0 380315 vxLr27
fdj.k 864520 flrEcj9
flrEcj20
31@10@99] 3@11@99
31 vDVwEcj dks
mlus lc dqN dj
fy;k ejus dk
(8 of 13)
[ CRLA-439/2002]eu djrk gSA”
16. Translated, it reads : I have told you earlier. Kumud
Kumud Kumud Kumud ………… On 29/10/1999 I had consumed
poison but God had wiled otherwise. July – 27. August – 27.
September – 9. September – 20. 31/10/1999, 03/11/1999. On
31st October he has done everything. I feel like dying.
17. The writing Ex.P-8 reads as under:-
“esjk gR;kjk izdk’k egjk gSA
mlus esjh gh ugha dbZ
yMdh;ksa dh ftanxh cjcn
dh gS eSa rks ml ilUn Hkh
ugha djrh Fkh”
18. Translated it reads : That Prakash Mehra is her killer.
He has not only destroyed her life but the life of many other girls.
She hates him.
19. The writing on Ex.P-6 is on both sides of the slip. It
reads as under:-
“eSa 22 feyh 23
dks ugha 24 dks
,d nhu mlus viuh
thou dh dgkuh crk nh
dqeqn
eSa rsjs
mij Vky fn;k dqeqn
eSa nksLrh d: ;k
u d: rsjh ejth
mls esjs ckjs esa
(9 of 13)
[ CRLA-439/2002]
xyr Qseh vkSj
gS fd eSa mls
ns[krh jgrh gS
oks esjs lkeus vk;k
esa rks”
20. Translated it reads : I met on 22 nd. Not on 23rd. On 24th
one day he told me about his life. Kumud I leave it to your
decision. You tell me whether I should be friend with me or not. It
would be your decision he seems to be under a wrong impression
that I am in love with him.
21. The writing on Ex.P-10 reads as under:-
“esjk gR;kjk izdk’k esgjk gSA tks dh””
22. Translated it reads : Prakash Mehra is my killer.
23. From a reading of Ex.P-7, which is dated 21/06/1999,
it is apparent that the prosecutrix has written about her hatred for
an unknown person. From the writing on Ex.P-6, which is undated,
it is apparent that the prosecutrix is seeking the opinion from her
friend Kumud whether she should make friends with a person who
had confided about his life to her. That she was of the opinion that
the person concerned believed that she was in love with him. The
writing on Ex.P-7 is to the effect that on 29/10/1999 the
prosecutrix attempted to commit suicide and that on 31 st October
somebody had sex with her. Ex.P-8 and Ex.P-10 name the
appellant.
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[ CRLA-439/2002]
24. The testimony of Dr.N.L. Disaniya PW-16, who
conducted the post-mortem of the prosecutrix and prepared the
reports Ex.P-31 to Ex.P-33 establish that the prosecutrix was
habituated to sex and that not only the hymen was torn and
evidenced by it being inverted having an angle of 6 O’clock, was
suggestive of the prosecutrix having undergone an abortion.
25. This piece of evidence has to be considered in light of
the writings of the prosecutrix which have been exhibited as
Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10.
26. The exact date when the prosecutrix underwent an
abortion has not come on record. But from the writing on Ex.P-5 it
is proved that as early as 21/06/1999 the prosecutrix had written
about a tormented relationship which she was facing with a male,
whose name she has not mentioned in the writing. The writing on
Ex.P-7 establishes that on 29/10/1999 the prosecutrix was so fed
up of life that she attempted to commit suicide. The writing on the
same exhibit of 31st October does record that the tormentor of the
prosecutrix has done something with her which was compelling
her to commit suicide, but the same does not mean that the
prosecutrix was subjected to a sexual assault for the first time on
31/10/1999. The writing on Ex.P-6 establishes that the
prosecutrix was seeking guidance from her friend Kumud whether
to be friend a person whose name was not mentioned in the
writing. The testimony of the mother and aunt of the deceased
that she told them that the appellant had raped her on
03/11/1999 runs in the teeth of the writings of the prosecutrix
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[ CRLA-439/2002]
herself, meaning thereby, the prosecutrix was not subjected to a
sexual assault for the first time nor did the prosecutrix have sex
for first time on 03/11/1999.
27. Writings of the prosecutrix, cumulatively read do not
rule out the possibility of a consensual relationship with the
appellant. Relationship turned sour. Prosecutrix who had
undergone an abortion in the recent past found no way out to
break through from the relationship. She found no meaning to life.
She decided to end her life.
28. It is settled law that evidence led by the prosecution
should not only be incriminating qua the accused but should also
rule out the innocence. The writings of the prosecutrix may point a
finger towards the appellant, of continuing to have sex with her,
pursuant to a relationship which started well, but later on turned
sour. The possibility of the prosecutrix continuing with the
relationship, may be out of a feeling of hopelessness cannot be
ruled out. The prosecutrix breaking down mentally at some stage
of the soured relationship cannot be ruled out. This was the cause
of her to commit suicide.
29. I conclude by holding that the charge of having
committed an offence punishable under Section 376 IPC is not
proved against the appellant, because the evidence is of a kind
which does not rule out the appellant’s innocence. The appellant
would be entitled to the benefit of a doubt.
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30. The conviction for the offence of abetement to suicide
by the learned trial Judge is on the reasoning that by raping the
prosecutrix she was compelled to commit suicide.
31. The reasoning is legally unsound. Abetement is defined
under Section 107 IPC, as under:-
“107. Abetment of a thing.–A person abets the doing of
a thing, who–
(First) — Instigates any person to do that thing; or
(Secondly) –Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
(Thirdly) — Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a material
fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorized by a warrant
from a Court of Justice to apprehend Z. B, knowing that
fact and also that C is not Z, wilfully represents to A that
C is Z, and thereby intentionally causes A to apprehend
C. Here B abets by instigation the apprehension of C.
Explanation 2.–Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitate the commission thereof, is said to aid the doing
of that act.”
32. No act contemplated by Section 107 IPC can be
attributed to the rapist where a female commit suicide on being
raped. Apart from the legal reasoning adopted by the learned trial
Judge, which is unsound, since I am acquitting the appellant of
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the charge of having committed an offence punishable under
Section 376 IPC, I set-aside the appellant’s conviction for the
offence punishable under Section 306 IPC.
33. The appeal succeeds. The appellant is acquitted of the
charge framed against him.
34. As regards S.B. Criminal Revision Petition
No.456/2002, where grievance of the father of the prosecutrix is
that inadequate sentence has been imposed upon the accused, in
view of the accused being acquitted, said revision petition is
dismissed.
(PRADEEP NANDRAJOG), C.J.
Anil Goyal-PS/9-10
