HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No.201/2019

Rajendra alias Pappu s/o Rampal, b/c Odd, aged 28 years, r/o
Village Rampuriya, Police Station Baneda, District Bhilwara.
(At present lodged in District Jail, Bhilwara).
—-Appellant
Versus
State of Rajasthan
—-Respondent

For Appellant(s) : Mr. B.S. Charan
For Respondent(s) : Mr. N.S. Bhati, PP for the State.

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON’BLE MR. JUSTICE ABHAY CHATURVEDI

Judgment

Reserved on 12/09/2019
Pronounced on 04/10/2019

Per : Dr. Pushpendra Singh Bhati, J.

1. The present appeal under Section 374 of the Code of

Criminal Procedure calls in question the legal validity and

defensibility of the judgment and order dated 11.07.2019 passed

by the learned Special Judge, SC/ST (Prevention of Atrocities)

Cases, Bhilwara in Sessions Case No.36/2012 (323/14), convicting

and sentencing the accused/appellant as under:-

Under Section 376 IPC Life imprisonment and fine of Rs.1000/-

and in default of payment of fine, to
further undergo six months simple
imprisonment
Under Section 323 IPC Simple imprisonment for one year and
fine of Rs.500/- and in default of

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payment of fine, to further undergo
three months simple imprisonment.

Under Section 3(1)(xii) Simple imprisonment for five years and
SC/SectionST Act fine of Rs.1000 and in default of
payment of fine, to further undergo six
months simple imprisonment
Under Section 3(2)(w) Life imprisonment and fine of Rs.1000/-
SC/SectionST Act and in default of payment of fine, to
further undergo six months simple
imprisonment

All the substantive sentences were ordered to run concurrently.

2. The broad essential facts which need to be adumbrated

for the decision of the present appeal are that on 28.05.2012, the

prosecutrix filed a complaint at Police Station, Mandal stating

therein that she resides at Station Kheda with her family.

The prosecutrix further stated that on 26.05.2012 at about 9:00

p.m., she went alone for latrine near a boundary wall of the

school.

The prosecutrix in the said complaint also stated that at that time,

she was suddenly caught by a man from behind, and the man,

while putting a handkerchief in her mouth, raped her.

As mentioned in the complaint, the man further tried to take her

away on his motorcycle forcibly, but she fell down from the

motorcycle, and in the meanwhile, hearing her shout, one Rajesh

Kanjar and another Bhura came running and tried to catch the

accused, but he ran away.

The prosecutrix further stated that the person, who committed

rape upon her, was doing chunai work in her neighbourhood, and

his name was Pappu s/o Rama Oad r/o Rampuria.

The prosecutrix also stated that the accused, while running away,

left his slippers and motorcycle at the spot.

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As per the prosecutrix, after the said incident, she was taken away

to the hospital by her family members, and from there, she went

to a hotel to have dinner.

3. On the basis of the aforementioned report, FIR

No.128/2012 was registered against the present

accused/appellant at Police Station, Mandal for the offences under

Sections 376, Section323 IPC and Section 3(1)(III) and 3(2)(w) of the

SC/SectionST Act.

The accused/appellant was arrested and investigation

commenced, and thereafter, charge-sheet was submitted. The

accused/appellant pleaded not guilty and claimed trial.

4. The prosecution examined 17 witnesses and exhibited

18 documents to prove its case.

5. The accused/appellant was questioned under Section

313 Cr.P.C. and he denied the prosecution allegations, while

claiming himself to be innocent. However, no evidence was led by

the defence, except a police statement rendered by one Rajesh @

Rajeshiya, which was exhibited as Exhibit D-1.

6. The learned trial court heard the learned Public

Prosecutor and the learned defence counsel and perused the

material brought on record, while drawing its conclusion in the

shape of the impugned judgment and order, and convicted and

sentenced the accused/appellant, as mentioned above.

7. Mr. B.S. Charan, learned counsel for the

accused/appellant submitted that the incident itself has been

alleged to have happened in the night of 26.05.2012 at 9:00 p.m.,

whereas the FIR has been lodged on 28.05.2012 without any

explanation for the delay.

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Learned counsel further submitted that there are no eye witnesses

to the incident and the evidence rendered by the prosecutrix does

not instill confidence, as she has indicated conflict only at the

stage when the accused/appellant was trying to take away the

prosecutrix on his motorcycle.

Learned counsel also submitted that the prosecutrix has created a

huge doubt in her story by not making a clear identification of the

accused/appellant as to whether he was Rajendra or Pappu, or

both were the names of the same person.

Learned counsel has further shown the evidence rendered by

PW-1 Dr. Suman Sharma, who, at the relevant time, was posted

as Medical Officer, Mahatma Gandhi Hospital, Bhilwara, and who,

in her cross-examination, has stated that no firm opinion

regarding the rape can be formed from the medical report in

question.

Learned counsel further submitted that Exhibit P.1, the medical

report indicates that the prosecutrix was habitual to sexual

intercourse and the opinion about the rape cannot be given at that

stage.

Learned counsel also stated that there was no FSL report, which

could indicate the involvement of the accused/appellant in the

commission of the alleged crime.

Learned counsel further submitted that the prosecution itself has

not clarified as to the doubt between the names of Rajendra and

Pappu, or as to whether they were the same persons or whether

they were different.

Learned counsel also stated that the prosecutrix, who was

prosecution witness No.2 (PW-2), admitted in her cross-

examination that the report, which was submitted by her at the

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police station was not on record, and the said version was also

supported by PW-3 Sheela.

Learned counsel further submitted that PW-5 Nathi stated in her

cross-examination that they got the report typed at Mandal, and

the same report was submitted at the police station, but the same

has not been produced by the prosecution, as the name of the

accused/appellant was not there in the report, which would have

definitely led to collapse of the prosecution case, and thus, a

concocted first information report dated 28.05.2012 has been

registered.

Learned counsel also submitted that in her evidence, the

prosecutrix has clearly stated that the incident happened at 9:00

p.m. and it was a dark night, and while there was no light, she

was raped by a person coming from behind; when the said person

was trying to take her away on his motorcycle, he fled upon

seeing Rajesh Kanjar and Bhura, who reached the spot.

Learned counsel further submitted that there is contradiction in

the statement of the prosecutrix regarding her knowing

Rajendra/Pappu, and that, there was no identification parade

conducted by the prosecution, and such contradiction, as per

learned counsel for the accused/appellant, has to be read in

favour of the present accused/appellant.

Learned counsel thus submitted that the interested and material

witnesses do not complete the chain of circumstantial evidence,

rendering the evidence of the prosecutrix unreliable and

untrustworthy, and therefore, the impugned judgment of

conviction and the order of sentence deserves to be quashed and

set aside and the accused/appellant deserves to be acquitted of

the charges.

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Learned counsel concluded by contending that it is settled law that

the guilt has to be proved beyond reasonable doubt, which is not

there in the present case.

8. On the other hand, Mr. N.S. Bhati, learned Public

Prosecutor has vehemently opposed the submissions advanced on

behalf of the accused/appellant and urged that the

accused/appellant had committed rape upon the prosecutrix and

the chain of circumstantial evidence read with evidence led by the

prosecutrix clearly establishes the offence to have been committed

by the present accused/appellant.

9. We have carefully seen the record of the case, while

keeping into consideration the submissions advanced by both the

sides, and has also seen the impugned judgment and order, which

has narrated the whole incident, and the reasons assigned by the

learned court below to arrive at such conclusion.

10. We first deal with the evidence rendered by PW-2, the

prosecutrix, in which she has categorically deposed that while she

was alone at dark place at about 9:00 p.m. at the school near a

wall, where she went for latrine, she was caught from behind and

was raped, and then she was being taken away on motorcycle, but

was rescued by Rajesh Kanjar and Bhura, who also tried to catch

the accused, but he ran away.

In the cross-examination, the prosecutrix has stated that the

place was dark and there were no lights. She further stated that

she does not know Rajendra and knows Pappu only. She also

stated that she did not know Pappu before the incident.

Her saying that she did not know Pappu before the incident took

place is an expression which has to be looked into seriously, as it

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is creating a clear contradiction. Furthermore, her deposing that

she did not know Rajendra is also worth-noticing.

The emphasis of the prosecutrix upon the fact that the

accused/appellant, after committing rape, was trying to take her

away on his motorcycle, but they both fall from motorcycle, is also

a fact that creates a doubt in the mind of the Court regarding the

incident, as to whether it was a forcible act of rape or not.

The prosecutrix has categorically submitted that she was taken to

hospital, but she went to a hotel for taking dinner, which shows

her physical condition.

The rape report does not confirm the rape, but suggests that it

cannot be denied also.

The injury report does not indicate much as the injuries upon the

body of the prosecutrix are mere abrasions in the limbs, and the

fact of her falling from the motorcycle, when being taken away by

the accused, was reflected in the statement given before the

police.

The prosecutrix has confirmed that no identification parade was

carried out, and it has also been deposed by the prosecutrix that

normally she went for latrine alongwith other ladies, but on that

day, she went alone.

The prosecutrix has further deposed that she did not scream or

shout, until she fell from the motorcycle, as she had a cloth in her

mouth.

11. PW-1 Dr. Suman Sharma, in her statement, has stated

that she is not in a position to give a definite opinion regarding the

rape, as the smear, saliva, blood sample etc. have been sent for

FSL examination.

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12. PW-3 Sheela, in her statement, has merely stated that

the prosecutrix came to her and narrated the whole incident.

13. PW-4 Rajesh s/o Shri Sampat Ji, in his statement, has

deposed that the accused/appellant was trying to take away the

prosecutrix on his motorcycle, and when he alongwith Bhoora

reached the spot, the accused ran away.

This witness, in the cross-examination, has admitted that he is a

close relative of the prosecutrix.

14. PW-5 is Nathi, who, in her statement, has deposed that

the prosecutrix told her the whole story on returning home.

15. PW-6 is Shobha Lal, who, in his statement, has

supported recovery and the site plan and has been stated to be

the neighbour of the prosecutrix.

16. PW-7 is Ramchandra, who, in his statement, has only

narrated what was told to him about the incident.

17. PW-8 is Ratan Lal who has become hostile to the fact of

recovery of the underwear of the accused/appellant.

18. PW-9 Lalu Ram was the Head Constable, who had

received the samples for FSL.

19. PW-10 is Debilal, who has supported the arrest memo

and recovery of the underwear of the accused/appellant, while

stating, in his cross-examination, that his signatures were

obtained on a blank paper.

20. PW-11 Girdhari lal who was the Constable in the Police

Station, Mandal, had processed the samples for FSL.

21. PW-12 Nemichand, who, at the relevant time, was

posted as SHO, Police Station, Mandal, has stated that the

prosecutrix alongwith her mother-in-law Sheela had come to the

police station on 28.05.2012 at 6:30 p.m., and submitted the

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report, and thus, the investigation was conducted. The

investigating officer, in cross-examination, has stated that none of

the allegations were pertaining to caste orientation of the

prosecutrix.

22. PW-13 Booglal Meena, who, at the relevant time, while

being posted as C.O., Mandal has also accumulated the evidence

including the rape report, injury report etc. He, in the cross-

examination, has admitted that he has not taken any document

regarding Pappu and Rajendra being the same person.

23. PW-14 Mohd. Yunus Sheikh, who was again not the eye

witness to the rape, but, in his cross-examination, has deposed

that it was quite dark and he did not know Rajendra/Pappu.

In the statement, this witness has deposed that he was merely

trying to catch the accused going away on the motorcycle, while

he was trying to take away the prosecutrix forcibly.

24. PW-15 Sanju, who is the husband of the prosecutrix,

has merely narrated the incident of the prosecutrix being forcibly

tried to be taken away by the accused/appellant.

25. PW-16 Harish Kumar, at the relevant time, was posted

as Head Constable at the Police Station, Mandal, and was in-

charge of the malkhana and processed the articles for FSL report.

26. PW-17 Dr. Gyanprakash Maheshwari, who at the

relevant time, was posted as Medical Jurist, has expressed his

opinion about the seven injuries upon the prosecutrix. Injury No.1,

scratch and swelling on ring finger; injury No.2, blueish- black

right side eye; injury No.3, abrasions on front; injury No.4, a

scratch on right cheek; injury No.5, scratch on left leg; injury

No.6, scratch on left elbow and; injury No.7, scratch on right

hand.

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The doctor has also deposed about the injuries on the body of

Rajesh s/o Sampatiya. Injury No.1, scratch on left knee and injury

No.2 scratch on middle finger of right hand. The doctor, in the

cross-examination, has deposed that these injuries could have

also been caused by a bush. The doctor has further stated that

Exhibit-1 does not indicate the external injuries on the body of the

prosecutrix.

27. We have has also carefully gone through the FSL

Report, which does not give any indication about the incident in

question.

28. The aforesaid chain of circumstantial evidence does not

inspire any confidence, so as to suggest that the incident has been

proved beyond reasonable doubt, which is essential and

mandatory in nature.

The fact of the accused/appellant trying to take away the

prosecutrix on his motorcycle after the rape, and the motorcycle

as well as both of them falling down, has not been dealt with by

the learned court below, so as to indicate that it was not reason

for causing the injuries- the abrasions and scratches on the body

of the prosecutrix and Rajesh s/o Sampatiya.

The delay from 26.05.2012 night 9:00 p.m. to 6:30 p.m. on

28.05.2012 is also not explainable.

The mere possibility of the offence not being ruled out does not

mean that the accused/appellant can be convicted.

The prosecutrix herself has created a thrust in her statement upon

the accused/appellant taking her away on the motorcycle after the

rape and falling when alarm was raised.

The prosecutrix has stated that she did not shout until she was

being taken away on the motorcycle as she had a cloth in her

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mouth. The prosecutrix has also stated that it was dark and she

did not know Rajendra and/or Pappu until the day of incident.

The prosecutrix has also created a lot of doubt by stating that she

does not know Rajendra, the present accused/appellant.

The prosecutrix has further denied the report before the police to

be the report made by her.

29. A small contusion on the thigh of the prosecutrix and

the scratches on the legs and hand do not indicate any violence,

which could be an outcome of a sexual assault and could be from

her falling from the motorcycle.

30. The identification parade was not conducted and the

FSL does not connect the accused/appellant with the crime.

There are no eye witnesses to the incident and lot of questions

remained unanswered.

The prosecution witnesses, one after another, have mechanically

deposed the incident, even while admitting that they were not eye

witness to the incident of rape.

The prosecutrix has wavered a lot in her statement and has

indicated facts, like rape by an unknown person coming from

behind, a total darkness at the place of incident, she not knowing

the accused, she is not clear about the names and her statement

before the police that she fell alongwith the motorcycle, while

being taken away by the accused on alarm being raised.

31. Thus, in the present case, prosecution story is doubtful.

In a case resting on uneven evidence, the prosecution is required

to complete the chain of circumstances leading towards the guilt

of the accused and negate the possibility of his innocence.

However, in the present facts and circumstances brought on

record, the prosecution has failed to lead to the conclusion

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towards the guilt of the accused/appellant, and thus, the

possibility that the present accused/appellant is innocent, cannot

be ruled out. Thus, the offences have not been proved beyond

reasonable doubt.

32. Resultantly, the present appeal is allowed. The

impugned judgment/order dated 11.07.2019 passed by the

learned trial court and the sentence awarded to the

accused/appellant are hereby quashed and set aside. The

appellant, who is in custody, be set at liberty, if not required in

any other case.

In view of the provisions of Section 437-A of the Code of Criminal

Procedure, 1973, appellant is directed to furnish a personal bond

in the sum of Rs.25,000/-, and a surety in the like amount, before

the Registrar (Judicial) of this Court, which shall be effective for a

period of six months, with stipulation that in the event of Special

Leave Petition being filed against this judgment or on grant of

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

appear before the Supreme Court.

All pending applications stand disposed of accordingly. Record of

the trial court be returned forthwith.

(ABHAY CHATURVEDI),J (DR. PUSHPENDRA SINGH BHATI),J

Skant/-

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