HIGH COURT OF JUDICATURE FOR RAJASTHAN
S.B. Criminal Appeal No. 198/2015
The State of Rajasthan
For Appellant(s) : Mr.Vinod Choudhary
Mr.Shaitan Singh, Amicus
For Respondent(s) : Mr.O.P.Rathi, PP
HON’BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG
1. Charged for having raped the prosecutrix on 24.5.2010, the
appellant has been convicted vide impugned judgment dated 9 th
February, 2015. He has been sentenced to undergo RI for a period
of seven years and pay fine in sum of र10,000/-, in default of
payment, to undergo RI for a period of one month.
2. Process of criminal law was set into motion when on
25.5.2010 at 6.00 PM the prosecutrix lodged a written complaint
Ex.P-7 at Police Station Hanumangarh stating therein that her
father had expired three years back and her mother had accepted
the appellant as her husband. Yesterday her mother left the house
for work and around 4.00 PM appellant came to their house. He
told the prosecutrix to rest in the room while he prepared tea.
Deceitfully he added an intoxicant in the tea. On drinking tea she
became unconscious. The appellant raped her. She regained
consciousness at around 7.00 PM.
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3. On the basis of the complaint FIR Ex.P-8 for offence
punishable under Section 376 IPC was registered. The prosecutrix
was taken to the Government Hospital, Canal Colony,
Hanumangarh. She was medically examined and medical
examination report Ex.P-10 was prepared, as per which the
prosecutrix was found to be habitual to sexual intercourse. No
injury was noted on her person. Vaginal swab, vaginal slides,
blood saliva samples and salvar were handed over by the doctor
to the Investigating Officer as recorded in the medical examination
4. The appellant was arrested and on 1.6.2010 was examined
at the same Hospital. He was found capable of having sexual
intercourse. His blood and saliva samples were taken. His
underwear was also taken by the doctor concerned and handed
over to the Investigating Officer.
5. The seized exhibits pertaining to the prosecutrix were
forwarded to FSL, Jaipur as per Ex.P-12 and surprisingly whereas
the salvar of the prosecutrix was seized as per Ex.P-10, Ex.P-12
records that underwear of the prosecutrix was sent for forensic
examination. The FSL report Ex.P-15 records that semen was
detected on the salwar which was seized from the prosecutrix.
6. At the trial the mother of the prosecutrix appeared as PW1
and deposed that on the day of the incident she had left the house
for work. Her husband had died 8 yeaers back. After the death of
her husband the appellant started residing with her but for 2-3
months prior to the incident he had stopped living with her. When
she returned in the evening to her house she saw that the clothes
of her daughter were open. On her asking her daughter informed
that the appellant had come to the house. He prepared tea in
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which he put an intoxicant. After drinking tea her daughter got
intoxicated and accused raped her daughter.
7. On being cross-examined she stated that the appellant lived
with her as her husband for 2-3 years. For 2-3 months prior to the
incident he had stopped coming to her house. When she returned
to her house she saw that her daughter was not wearing the
clothes. The top and salwar were removed. Because it had got
dark by the time she returned home they lodged the police
complaint next day. She denied the suggestion that because the
appellant had stopped living with her a false case of rape was
slapped on him.
8. The prosecutrix appeared as PW-2 and deposed that her
father had died many years ago. After the death of her father the
appellant started residing with her mother as her husband. Two
months prior to the incident the appellant had left their house. On
the day of the incident her mother had gone for work. The
appellant came to their house and volunteered to make tea
himself. He served her intoxicated tea, drinking which, she was in
a state of semi consciousness. The appellant removed her clothes
and inserted his penis in her vagina and raped her. When her
mother returned, her clothes were removed. She told the incident
to her mother. After she was medically examined the doctor took
possession of her clothes.
9. On being cross examined she stated that the appellant lived
with her mother as her husband for two years. Two months prior
to the incident he had stopped coming to their house. She stated
that since she was semi conscious she made a noise and none
from the neighborhood intervened because they were threatened
by the appellant. She stated that when she was being raped she
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was waiving her hands because of which the bangles broke. She
stated that the police took the possession of her salwar.
10. Vide impugned judgment the learned trial Judge has held
that there is nothing to disbelieve the testimony of the prosecutrix
and has found corroboration to her version with reference to the
FSL report in which it is recorded that semen was detected on the
salwar of the prosecutrix which was sent for forensic examination.
11. During arguments in the appeal, confronted with the fact
that in Ex.P-10, after the prosecutrix was medically examined, it is
recorded that a salwar was seized, but in ExP-12, being the
forwarding letter to the Director, FSL, Jaipur whereunder exhibits
pertaining to the prosecutrix seized during investigation were sent
for forensic examination, it is recorded that underwear was sent,
learned counsel for the State has no answer.
12. The impugned judgment has not noted aforesaid
13. From a perusal of the testimony of the prosecutrix when she
appeared as the witness of the prosecution it emerges that as per
her since she was semi conscious she made noise but nobody
intervened because as per her appellant had threatened the
people. This is a material improvement vis-a-vis her written report
14. It assumes relevance that on being cross-examined the
prosecutrix stated that when she was being raped she resisted.
She has used the expression “हाथ वगैरा भी मैनने मारने थने.” because of
which her bangles broke. No broken bangles have been seized
from the room where the prosecutrix claimed she was raped. As
noted above, in the medical examination report Ex.P-10, no injury
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on her person has been noted. If her bangles broke at-least some
scratch marks due to broken glass would have been detected.
15. PW-7 Dr.Rajpal Godara, who authored the medical
examination report has recorded that the prosecutrix was habitual
to sexual intercourse.
16. The prosecutrix and her mother admitted that for 2-3
months prior to the date of the incident the appellant had stopped
coming to their house and prior thereto was living with the mother
of the prosecutrix as her husband after the father of the
prosecutrix died 6-7 years ago.
17. The possibility of a false implication of the appellant thus
cannot be ruled out.
18. It also assumes importance that as per the prosecutrix there
was full penetration in her vagina but in the FSL report no semen
was detected in the vaginal swab and vaginal slides taken from
19. For the reasons noted above the appellant, who has
undergone a sentence of 5 years, 4 months and 12 days as on
24.1.2019, is entitled to be extended the benefit of doubt.
20. The appeal is allowed. The impugned judgment dated
9.2.2015 is set aside and the appellant is acquitted of the charge
framed against him. The appellant be released from the jail
forthwith, if not required in any other case.
21. Keeping in view, however, the provisions of Section 437A
Cr.P.C. the appellant is directed to forthwith furnish personal bond
in sum of र5,000/- and a surety bond in the like amount 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 present judgment or for grant of leave, the
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appellant, on receipt of notice thereof, shall appear before the
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