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Mahaveer Prasad vs State on 1 February, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR

S.B. Criminal Appeal No. 198/2015

Mahaveer Prasad

—-Appellant
Versus
The State of Rajasthan

—-Respondent

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

Judgment

01/02/2019

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.

(2 of 6) [CRLA-198/2015]

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

report Ex.P-10.

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
(3 of 6) [CRLA-198/2015]

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
(4 of 6) [CRLA-198/2015]

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

discrepancy.

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

Ex.P-7.

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
(5 of 6) [CRLA-198/2015]

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

the prosecutrix.

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
(6 of 6) [CRLA-198/2015]

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

Supreme Court.

(PRADEEP NANDRAJOG),CJ

8-Parmar/-

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