HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Appeal No. 1025/2013

Devaram S/o late Shri Ghasiram, B/c Balai, R/o Village Kolyan,
Police Station Jamvaramgarh, District Jaipur.
(Appellant/appellant at present confined in Central Jail, Jaipur)
—-Appellant
Versus
State Of Rajasthan Through Pp
—-Respondent

Connected With
S.B. Criminal Appeal No. 1026/2013
Smt Shakuntala W/o Shri Heera Lal B/c Balai R/o Village
Ladipura Police Thana Jamwaramgarh District Jaipur.
(Accused/appellant at present in Central Jail, Jaipur)

—-Appellant
Versus
State Of Rajasthan Through Pp

—-Respondent
S.B. Criminal Appeal No. 1710/2017
Vishram @ Basram S/o Bachhuram @ Babu Lal B/c Gurjar , R/o
Tholai, Police Station, Jamwa Ramgarh, Distt. Jaipur. Accused
Appellant Is Confined In Central Jail, Jaipur

—-Appellant
Versus
State Of Rajasthan Through P.p.

—-Respondent

For Appellant(s) : Mr. Vijay Choudhary in CRLA
No.1025/2013 CRLA No.1026/2013
Mr. B.M. Gurjar in CRLA
No.1710/2017
For Statement : Mr. Sudesh Saini, PP
For complainant(s) : Mr. G.L. Sharma

HON’BLE MR. JUSTICE PANKAJ BHANDARI

Judgment / Order
(2 of 11) [CRLA-1025/2013]

20/09/2018

1. Appellants Shakuntala and Devaram have preferred

these appeals aggrieved by judgment dated 25.09.2013, and

order dated 26.09.2013, vide which they have been convicted by

Additional Sessions Judge No.2, Jaipur District, Jaipur in Sessions

Case No.08/2013 (17/2011). Appellants Devaram and Shakuntala

have been sentenced for two years rigorous imprisonment and

fine of Rs.2,000/- and two months simple imprisonment on non

payment of fine for offence under section 344 IPC, for offence

under Section 366-A IPC, they have been sentenced for six years

rigorous imprisonment and fine of Rs.3,000/-, on non payment of

fine to further undergo three months simple imprisonment, for

offence under Section 376 I.P.C. they have been sentenced for

seven years rigorous imprisonment and fine of Rs.5,000/-, on non

payment of fine to further undergo four months simple

imprisonment, for offence under Section 376 (2)(g)/109 ten years

rigorous imprisonment and fine of Rs.10,000/-, on non payment of

fine to further undergo six months simple imprisonment. Appellant

Vishram @ Basram has preferred a separate appeal aggrieved by

judgment and order dated 11.07.2017 passed by Additional

Sessions Judge No.2, Jaipur District Jaipur, whereby appellant has

been convicted for offence under Section 344 and 376(2)(g) IPC

and has been sentenced two years rigorous imprisonment and fine

of Rs.3,000/- for offence under Section 344, on non payment of

fine to further undergo two months simple imprisonment, ten

years rigorous imprisonment for offence under Section 376(2)(g)

and fine of Rs.10,000/- and on non payment of fine to further

undergo six months simple imprisonment.

(3 of 11) [CRLA-1025/2013]

2. As all the appeals arise out of single complaint lodged

by the prosecutrix, for the sake of convenience all the appeals are

decided by this common order.

3. In brief, the factual matrix of the case are that a

complaint was lodged by the prosecutrix on 05.05.2010, which

was sent to the Police Station for registration. F.I.R. was

consequently registered on 02.06.2010 against nine persons.

Police after due investigation submitted charge-sheet against six

persons and kept the matter pending under section 173(8) Cr.P.C.

against two persons.

4. It is alleged in the complaint that on 18.04.2009, when

mother of prosecutrix was caught by her husband Heeralal when

she was talking on mobile with someone, a dispute took place

between the two and mother of prosecutrix who is appellant-

Shakuntala in this case left her matrimonial home alongwith

prosecutrix and deceased on 25.04.2009. It is mentioned in the

complaint that after going to different places, they reached Merta

City and stayed at Prince Hotel where Devaram and Sadhu Ram

committed rape with her sister and prosecutrix. Police recovered

them the next morning. She alongwith her mother and sister were

taken by her maternal uncle but she could not inform her

maternal uncle about the incident. It is mentioned in the

complaint that appellants Shakuntala and Devaram took the

prosecutrix and her sister to village Koliyan from there they took

them to Heerawala, Jamwaramgarh. They took a room on rent

there also both the sisters were subjected to rape then the

prosecutrix and her sister were taken to Brahmpuri, there also

Devaram raped the prosecutrix and her sister. Appellants

Shakuntala and Devaram then took the prosecutrix and her sister
(4 of 11) [CRLA-1025/2013]

to Kunda, Amer where they were kept in confinement for one

month. From there they were taken to Heerawala and were kept in

the house of Sadhu Ram and Mangilal where they were forced into

prostitution and Babulal Gurjar, Raju Meena, Chanda Meena,

Sitaram Gurjar and Raju Meena gang raped them on the

instigation of Shakuntala and Devaram.

5. It is also alleged that Shakuntala and Devaram stayed

together as husband and wife. Appellant Devaram committed rape

with the prosecutrix and her sister. He used to call Vishram and

Babu Gurjar and they also raped them. It is mentioned that sister

of prosecutrix was fed up with her life and she committed suicide

on 06.03.2010. Prosecutrix then returned back to her father.

Police after due investigation filed charge-sheet against Devaram,

Shakuntala, Sitaram, Chanda @ Gulab Chand, Raju and another

Raju. Matter was kept pending under Section 173(8) Cr.P.C.

against Babulal and Basram.

6. Trial Court after recording the statement in Sessions

Case No.08/2013 acquitted Raju @ Rajesh s/o Nanagram, Raju

s/o Prabhu Ram, Sitaram s/o Heea Lal and Chanda Lal @ Gulab

Chand S/o Ram Ratan. Shakuntala and Devaram were convicted

and they have been sentenced as herein above mentioned.

7. A supplementary charge-sheet was submitted against

Basram and Babulal and a Sessions Case No.12/2015 was

registered. The facts of that case are akin to the facts in Sessions

case No.08/2013. Both Basram and Babulal were charged for

offence under Section 344, 376(2)(g) IPC. Appellant Basram and

Babulal denied the charges and sought trial. Prosecutrix did not

identify Babulal on which he was acquitted, however, Basram was

convicted for offence under section 344, 376(2)(g) IPC and was
(5 of 11) [CRLA-1025/2013]

sentenced as herein above mentiond aggrieved by which the

present appeal has been preferred.

8. It is contended by counsel for the appellants that there

is an inordinate delay in lodging of complaint. As per the

complaint, rape was initially committed by Sadhu Ram and

Devaram at Prince Hotel in Merta City on 28.04.2009, whereas,

complaint has been lodged on 05.05.2009 i.e. almost after one

year of the alleged incident.

9. With regard to delay, reliance has been placed on

“Ramdas and Ors. vs. State of Maharashtra” (2007) 2

Supreme Court Cases 170, wherein the Apex Court held that delay

in lodging of report may not by itself be fatal to the case of the

prosecution, but the delay has to be considered in the background

of the facts and circumstances in each case. The Apex Court gave

benefit of doubt to the accused in a case under Section 376 IPC

when F.I.R. was lodged after eight days of the alleged occurrence,

for which no satisfactory explanation was rendered.

10. It is contended that complaint was lodged against nine

persons. Police initially submitted charge-sheet against six

persons. Trial Court acquitted four and convicted appellant

Shakuntala and Devaram, thereafter, supplementary charge-sheet

was filed against appellant Vishram @ Basram and Babulal. Trial

Court acquitted Babulal. It is argued that out of nine persons

against whom there was allegation of gang rape, five persons

have been acquitted. Charge-sheet was not filed against Sadhu

Ram. It is argued that the case of appellant-Devaram and Vishram

is akin to that of the persons who were acquitted.

11. It is contended that complainant-prosecutrix in this

case when she was recovered by the police on 29.04.2009, from
(6 of 11) [CRLA-1025/2013]

Merta City did not level any allegation with regard to rape by

appellant-Devaram.

12. Further it is contended by counsel for Devaram that

since Devaram was helping Shakuntala in her matrimonial dispute

and had even lodged complaint to the Chief Minister and was

pursuing case of Shakuntala, father became inimical to appellant

and used the prosecutrix as a tool to lodge a false case against

appellant. In this regard my attention has been drawn toward

Ex.D-12, complaint sent to the Chief Minister, which is a complaint

lodged against Anoop Singh for not properly investigating the case

filed by Shakuntala against her husband and the order passed

against Anoop Singh for dereliction of duty. Police Personnel was

punished in departmental inquiry hence, the entire police station

became enimical toward him.

13. It is also contended that prosecutrix met her father

after commission of suicide by her sister and a separate complaint

was filed by her father Heera Lal at police station Chandwaji after

seventeen days of suicide. Therein also there was no allegation

with regard to rape against the appellant Devaram and Vishram @

Basram. It is also contended that there was no mark of injury on

the person of prosecutrix so as to establish that any forcible act

was committed against her.

14. It is also contended that there are material

contradiction in the statement of the prosecutrix. Reliance has

been placed on “Narender Kumar vs. State (NCT of Delhi)”,

(2012) 7 Supreme Court Cases 171, wherein Apex Court has held

that conviction can be based on sole testimony of prosecutrix

without any corroboration, if it inspires confidence. If Court finds

the version of prosecutrix improbable and devoid of trust, same is
(7 of 11) [CRLA-1025/2013]

to be rejected. It was also observed that the statement suffers

from serious infirmities, inconsistencies and deliberate

improvements on material point, reliance cannot be placed

thereon.

15. Reliance has also been placed on “Krishan Kumar

Malik vs. State of Haryana” (2011) 7 Supreme Court Cases

130, wherein accused was acquitted as there were several lacunae

in the evidence of prosecutrix and story was not corroborated by

any other evidence. There were discrepancies and omissions in

F.I.R. Name of accused was not mentioned even when prosecutrix

was aware of his name. Court held that such omissions shake

credibility of the prosecutrix.

16. It is contended that the allegation levelled against

mother are at the face of it false as mother herself had filed a

complaint at police station with regard to threat against her

daughter which was signed by prosecutrix herself and in that

report, prosecutrix had given statement that she is under threat of

some boys. Therein also there was no allegation with regard to

rape. This F.I.R. was lodged on 10.01.2010 which is Ex.D-9 and

the statement of prosecutrix recorded in that complaint is Ex.D-8.

17. It is contended that in the missing persons report filed

by the father of prosecutrix also statement of prosecutrix was

recorded which is Ex.D-12, wherein she did not level any

allegation with regard to kidnapping against Devaram and there

was no allegation that she was subjected to rape by Sadhu Ram

and Devaram. That statement was recorded immediately after she

was recovered by the police on 29.04.2009. Concocted story has

been cooked up by the prosecutrix after more than thirteen

months of the alleged incident.

(8 of 11) [CRLA-1025/2013]

18. Counsel for the complainant and learned Public

Prosecutor have opposed these appeals. Their contention is that

prosecutrix is a witness of sterling worth. There is no reason why

she would implicate her mother. It is also contended that when

prosecutrix has levelled allegation of gang rape, the burden shifts

on the accused under the 113A of the Evidence Act.

19. I have considered the contentions.

20. In the present case, complaint has been lodged on

05.05.2010 i.e. after an inordinate delay. Prior to lodging of this

complaint by the prosecutrix, a complaint was lodged by her

father on 23.03.2010. In the complaint filed by father of

prosecutrix, there was no allegation of rape.

21. Yet another piece of evidence which is very relevant is

filing of complaint by Shakuntala at Police Station, Jamvaramgarh

on 10.01.2010 Ex.D-9 regarding harassment of her younger

daughter by few boys. This complaint bears signatures of the

deceased. Thereafter statement of the deceased was also

recorded which is Ex.D-8, wherein also she has levelled allegation

against some boys. The allegation that appellant Shakuntala

forced her daughters to have relations with others appears to be a

false allegation to implicate Shakuntala.

22. It is also important to note that when the first missing

person report was lodged, by the father of the prosecutrix.

Shakuntala alongwith her two daughters was recovered by the

police. Statement of prosecutrix was recorded as Ex.D-12,

wherein she mentioned that she left house of her father and after

going to different places i.e. Gatwara, Shahpura, Ajeetpura,

Chomu, Ganganagar, reached Merta city where a boy named

Surendra got a room booked for them at Prince Hotel. It is
(9 of 11) [CRLA-1025/2013]

specifically mentioned in her statement that no untoward incident

took place with them at Prince Hotel. Prosecutrix has now built up

a case that two rooms were taken at Prince Hotel and during night

appellant-Devaram and Sadhu Ram committed rape with the girls.

The allegations are now levelled after a lapse of more than a year

which cannot be believed.

23. Further not reporting to her father about rape when the

first complaint was filed and now levelling allegation against eight

persons with regard to rape out of whom police did not submit

charge-sheet against Sadhu Ram and others except Devaram and

Basram stand acquitted by the Court below shows that the

prosecutrix has cooked up a case. She herself has admitted that

she had her grievance only against Devaram and Shakuntala and

name of others have been added to make a good case. Court

below has clearly erred in relying of statement of such witness

who has not explained the reason for the inordinate delay for

lodging of F.i.R. and prosecutrix who has herself deposed that she

has named some persons who have not committed any wrong just

to make it a good case is bad in law.

24. The allegation has also been levelled against Babulal,

Vishram Gurjar, Devaram, Sadhu Ram Gurjar, Chanda Meena, Raju

Meena and another Raju Meena with regard to rape. In cross-

examination, this witness refused to identify Babulal Gurjar and,

consequently, he was acquitted by the Court. Other co-accused

also stand acquitted. Prosecutrix in her cross-examination has

admitted that portion marked as A to B in statement recorded

under Section 161 Cr.P.C.. Ex.D-1 was given by her to the police.

In portion A to B, prosecutrix has mentioned that except

Shakuntala and Devaram, no one has done any forceful or wrong
(10 of 11) [CRLA-1025/2013]

act with her and that she has named other persons to make a

good case. This witness thus looses credibility and from her own

versions, it is apparent that she can implicate anyone for making

out a good case.

25. As far as accused-Basram is concerned, since

prosecutrix herself has mentioned that she has named the other

persons to make out a good case, the conviction of Basram is bad

in law. Other co-accused against whom there was allegation of

rape stand acquitted.

26. The statement of prosecutrix shows several lacunae.

There are serious contradiction in her statement and she has

made material improvement after filing of the belated complaint.

Applying “Rai Sandeep Alias Deepu vs. State (NCT of

Delhi)”, “Narender Kumar vs. State (NCT of Delhi)”,

“Krishan Kumar Malik vs. State of Haryana” and “Ramdas

and Ors. vs. State of Maharashtra”, conviction cannot be

sustained

27. In view of the above the appeals are allowed. The

judgment and order passed by the trial Court is quashed and set

aside. Appellants are acquitted of the charges levelled against

them. They are in jail, they be set at liberty forthwith, if not

required in any other case or for any other purpose.

28. Appellants are directed to furnish personal bond in the

sum of Rs.20,000/- and a surety bond in the like amount in

accordance with Section 437-A of Cr.P.C. before the Deputy

Registrar (Judicial) within two weeks from the date of release to

the effect that in the event of filing of Special Leave Petition

against this judgment or on grant of leave, the appellants on
(11 of 11) [CRLA-1025/2013]

receipt of notice thereof, shall appear before the Hon’ble Apex

Court. The bail bond will be effective for a period of six months.

29. Record of the Court below be returned forthwith.

(PANKAJ BHANDARI),J

Arti/55-57

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