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)
State Of Rajasthan Through Pp
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)
State Of Rajasthan Through Pp
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
State Of Rajasthan Through P.p.
For Appellant(s) : Mr. Vijay Choudhary in CRLA
No.1025/2013 CRLA No.1026/2013
Mr. B.M. Gurjar in CRLA
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]
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
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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
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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
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Merta City did not level any allegation with regard to rape by
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
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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
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
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.
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