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Smt Shakuntala vs State Of Rajasthan Through Pp on 20 September, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Appeal No. 495/2016

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

Connected With
S.B. Criminal Appeal No. 660/2016
Smt Shakuntala W/o Shri Heera Lal B/c Balai R/o Village
Ladipura Police Thana Chandwaji District Jaipur.
(Accused/appellant at present in Central Jail, Jaipur)

—-Accused/Appellant
Versus
State Of Rajasthan Through Pp

—-Respondent
S.B. Criminal Appeal No. 1153/2016
Basram @ Vishram S/o Bachu Ram @ Bachhu Lal, B/c Gurjar R/o
Village Tholai, P.S. Jamwa Ramgarh, District Jaipur.
(Accused appellant is confined in Central Jail, Jaipur)

—-Accused/Appellant
Versus
State Of Rajasthan Through Pp

—-Respondent

For Appellant(s) : Mr. S.S. Hora with Mr. T.C. Sharma in
CRLA No.495/2016
Mr. Vijay Choudhary in CRLA
No.660/2016
Mr. B.M. Gurjar in CRLA
No.1153/2016
For State : Mr. Sudesh Saini, PP
For Complainant(s) : Mr. G.L. Sharma

HON’BLE MR. JUSTICE PANKAJ BHANDARI
(2 of 19) [CRLA-495/2016]

Judgment / Order

20/09/2018

1. Appellants have preferred these appeals aggrieved by

judgment and order dated 18.04.2016, passed by Special Judge

SC/ST Cases, Jaipur in Sessions Case No.48/2011, whereby

appellants Devaram and Basram @ Vishram have been convicted

for offence under Section 376(2) (g) read with Section 120-B IPC

in alternate Section 107 IPC and both appellants have been

sentenced to ten years rigorous imprisonment and fine of

Rs.5,000/-, on non payment of fine, appellants Devaram and

Basram @ Vishram to further undergo three months simple

imprisonment. Appellants Devaram, Basram @ Vishram and

Shakuntala have been convicted for offence under Section 306 IPC

and sentenced to ten years rigorous imprisonment and fine of

Rs.5,000/-, on non payment of fine to further undergo three

months simple imprisonment. Appellant Devaram has further been

convicted for offence under Section 497 IPC and three years

rigorous imprisonment has been imposed, aggrieved by which the

present appeal has been preferred.

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

complaint Ex.P-26 was lodged by Heera Lal on 23.03.2010 which

was sent by the Court to the police for registration, and

consequently, F.I.R. was registered on 07.04.2010. In the

complaint it was alleged by Heera Lal that appellant-Shakuntala is

his wife who is residing with Devaram. He being a teacher in a

Government Secondary School, appellant Devaram in his absence

started having illicit relations with his wife Shakuntala and when

he objected to the same, dispute took place between him and

appellant Shakuntala. It is also contended that appellant-Devaram
(3 of 19) [CRLA-495/2016]

enticed his daughter and his wife to go with him, upon which

missing person report was lodged on 25.04.2009, at Police

Station, Chandvaji. Police recovered his wife and daughter on

29.04.2009 from Merta City and their custody was given to his

maternal-in-laws.

3. It is further alleged that from matrimonial house also

Devaram enticed his wife and daughters and took them away from

one place to another. Complainant tried his best to trace his wife

and daughters but in vain. It is mentioned that around two

months back his daughter called him and informed him that

Devaram is bent upon selling her. She also informed that she is

being forced to have illicit relations with Ajay. On 06.03.2010 at

around 5:00 pm, he received a call from Police Station, Nahargarh

that his daughter has committed suicide upon which he reached

the hospital. His younger daughter who was present at the

hospital informed him that the deceased was objecting to the

relations between appellant Devaram and her mother-Shakuntala

and she was forced to have illicit relations with Ajay. Police after

due investigation submitted charge-sheet against the appellants

and one Babulal.

4. Court after hearing arguments, framed charges against

Devaram for offence under section 306, 376(2)(g), 497 and 120-B

IPC. Shakuntala was charged for offence under Section 306,

376(2)(g) and 120-B IPC. Babulal and Basram were charged for

offence under Section 306, 376(2)(g) and 120-B IPC and Section

3(2)(V) SC/ST Act. Accused denied the charges and sought trial,

upon which as many as twenty three witnesses were examined on

behalf of the prosecution and twenty six documents were

exhibited. Explanation of accused were recorded under Section
(4 of 19) [CRLA-495/2016]

313 Cr.P.C. and two witnesses were examined and sixty five

documents were exhibited in defence. Court after hearing final

arguments acquitted Babulal but convicted the appellants as

herein above mentioned, aggrieved by which present appeals have

been preferred.

5. It is contended by counsel for the appellant-Shakuntala

who is mother of deceased and wife of complainant-Heera Lal that

a false case has been registered against her as she was having

strained relations with her husband. She had lodged a complaint

under Section 498-A IPC against the complainant in the year,

2005. Thereafter, she again lodged a complaint against her

husband on 19.03.2009. It is contended that since appellant-

Shakuntala was not residing with her husband, her husband has

concocted a false story. It is also contended that the story of

prosecution that appellant-Shakuntala forced her daughters into

illicit relationship, cannot be believed as appellant herself prior to

suicide of the deceased filed a complaint Ex.D-7 at Police Station,

Jamvaramgarh on 10.01.2010, regarding harassment of her

daughter by few boys, document Ex.D-7 bears signatures of her

daughter.

6. It is contended that on the missing person report,

Police recovered Shakuntala and her two daughters. Statement of

Monika was recorded by the Police which is exhibited as Ex.D-6,

therein also she has mentioned that she along with her mother

and sister left the house of her father on 25.04.2009 and after

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

Chomu and Ganganagar they reached Merta city where a boy

named Surendra got a room booked for them at Prince Hotel. It is

specifically mentioned that they stayed in a room and no untoward
(5 of 19) [CRLA-495/2016]

incident took place with them and the Police recovered them on

the next day. It is argued that Monika under influence of her

father has now implicated the appellants.

7. It is also contended that there is inordinate delay in

lodging of complaint and in the complaint, there is no allegation

against the appellant-Shakuntala of forcing her daughters to have

illicit sexual relations. It is also contended that the case rests on

solitary statement of appellant’s younger daughter but that

statement cannot be relied as she was under influence of her

father.

8. It is also contended that the allegation that appellant’s

younger daughter was forced into illicit relationship is not

established as her younger daughter was not subjected to medical

examination. The factum of deceased being subjected to beating a

day prior to her committing suicide is also not established as there

was no mark of injury on her person. It is also contended that

deceased was having relations with a boy and the possibility that

she committed suicide because of that boy cannot be ruled out.

9. It is further contended that the appellant-Shakuntala

and her daughters and appellant-Devaram stayed in Prince Hotel

in Merta City is not established, as no hotel record was produced

to establish that two rooms were taken at the hotel.

10. My attention has also been drawn towards Ex.D-6,

wherein appellant’s younger daughter has not levelled any

allegation with regard to rape. The presence of Devaram and

Sadhu Ram is also not shown in Ex.D-6. My attention has also

been drawn towards Ex.P-8 the report filed by appellant’s mother

with regard to suicide of her daughter on 06.03.2010. Statement

of prosecutrix was recorded in the inquiry with regard to missing
(6 of 19) [CRLA-495/2016]

persons report, in her statement she has clearly mentioned that

no untoward incident has taken place with her.

11. It is also contended that appellant-Shakuntala lodged a

complaint Ex.D-7 on 10.01.2010 to bring to the notice to the

police the threat that she was receiving from some boy and the

threat was that they would kidnap her daughters, regarding this,

document Ex.D-7 bears the signatures of prosecutrix. Ex.D-8 is

her statement given in relation to report Ex.D-7, wherein also she

has mentioned that she is receiving calls from Ramesh Kumar and

Raju and they are threatening to kidnap her.

12. It is further contended that the dispute between the

appellant-Shakuntala and complainant is further established from

affidavit of prosecutrix Ex.D-9, wherein she has mentioned that

complainant-Heera Lal was demanding Rs.8,00,000/- to

9,00,000/- after his father-in-law retired and he was asking for his

share in the property of his father-in-law. She has further deposed

in her affidavit that her mother, disturbed by continuous torture,

left the house.

13. My attention has also been drawn towards Ex.D-12,

affidavit of Gulab Singh, father of appellant-Shakuntala which

corroborate the fact of demand of money by complainant-Heera

Lal.

14. It is also contended that prosecutrix in her statement

Ex.D-13 recorded before the Magistrate on 23.06.2010, did not

make any allegation with regard to rape at Merta City. It is also

argued that prosecutrix has changed her version at different

places. She had not levelled allegation with regard to rape in the

complaint which was filed after an inordinate delay of seventeen

days.

(7 of 19) [CRLA-495/2016]

15. Counsel for the appellant-Devaram has argued that

Devaram has been falsely implicated as he was helping

Shakuntala in her matrimonial dispute with Heera Lal. It is

contended that complainant Heera Lal in the complaint lodged

after an inordinate delay, did not make any mention of rape being

committed by Devaram. It is contended that as per the complaint,

the allegation was that appellant Devaram was forcing the

deceased to have illicit relations with Ajay, police has not

investigated the complaint from that angle.

16. It is also contended that statement of Monika does not

inspire confidence as initially in the statement recorded under

Section 161 Cr.P.C. Ex.D-10 and affidavit Ex.D-9, there was no

mention that Devaram enticed Shakuntala and took her and her

daughters with him.

17. It is argued that material improvement have been

made by prosecutrix in her Court statement. It is also contended

that Monika and Shakuntala filed a complaint Ex.D-7 in January,

2010, before the SHO Police Station Jamvaramgarh, wherein there

was allegation against Ramesh Kumar Meena, Rajesh Kumar

Meena and Raju Meena of making vulgar comments and

threatening to kidnap Monika. Statement of Monika was also

recorded in that complaint which is exhibited as Ex.D-8, wherein

also there is no allegation with regard to rape against the

appellant-Devaram and Basram.

18. It is contended that appellant got himself examined as

DW-1, wherein, he stated that he was State President of

Ambedakar Vichar Manch Sansthan from 2001. Work of the

Sansthan was to help the poor and deprived persons. In 2005,

father of Shakuntala informed him that her husband treats her
(8 of 19) [CRLA-495/2016]

daughter with cruelty, thereupon F.I.R. No.216/2005, was lodged

at Police Station Chandwaji which is exhibited as Ex.D-19. In that

complaint Heera Lal the present complainant gave an affidavit

which is exhibited as Ex.D-1, which bears his signature from C to

D. Thereafter, on 28.04.2009, when Gulab Singh informed him

about missing of his daughter and grand daughters, he made a

complaint to the Chief Minister Office which is exhibited as Ex.D-

20 on which she was recovered by the Police on 29.04.2009,

Shakuntala gave a letter to him which is exhibited as Ex.D-22,

dated 23.07.2009. When inquired by him it was found that SHO

Police Station Chandwaji had done wrong investigation upon which

he gave a letter Ex.D-23, to Additional Director General (ADG)

Crimes on 06.07.2009, which is Ex.D-23. On this complaint SHO

Anoop Singh was chargesheeted. Charge-sheet has been exhibited

as Ex.D-24 and Anoop Singh was censured vide Ex.D-5, dated

25.03.2010.

19. The investigation of the case was then transferred to

Additional Superintendent of Police. In that case also complainant

tried to pressurize the appellant upon which a complaint was given

to the Human Rights Commission. The complaint given on

20.02.2010, by Devaram to Human Rights Commission was

exhibited as Ex.D-28. Human Rights Commission passed order

which is Ex.D-29. Shakuntala then filed a complaint Ex.D-30,

before Additional Judicial Magistrate Jaipur District, Jaipur on

04.05.2009, against Heera Lal and others. Police submitted

charge-sheet Ex.D-31, against Heera Lal. Name of appellant-

Devaram is appearing in the charge-sheet Ex.D-31 submitted by

the Police.

(9 of 19) [CRLA-495/2016]

20. It is further contended that complainant-Heera Lal filed

a divorce petition before the Family Court No.2, Jaipur, wherein he

levelled allegation with regard to adultery, the same is exhibited

as Ex.D-64. It is argued that appelant-Devaram has produced

relevant record to establish that Heera Lal was having enmity with

the appellant as he was the State President of Ambedkar Vichar

Manch Sansthan and was helping Shakuntala in her matrimonial

dispute.

21. It is also contended that the allegation that the wife of

complainant and her daughters went away with Heera Lal is at the

face of it false as Heera Lal himself sent a letter to the Chief

Minister on 28.04.2009, regarding missing of Shakuntala and her

daughters. The complaint sent to the Chief Minister is exhibited as

Ex.D-20 and the letter written by the Chief Minister’s office to the

Superintendent of Police, Jaipur Rural is exhibited as Ex.D-21.

22. Counsel for appellant-Basram @ Vishram has

contended that appellant-Basram @ Vishram is not named in the

complaint. There is no allegation of rape against him in statement

recorded under Section 161 Cr.P.C. Ex.D-10. Further there is no

allegation with regard to rape in the affidavit given by the

deceased Ex.D-11 on 11.05.2009. It is also contended that Ex.P-7

does not bear the signature of Basram and Basram never went to

the hospital with the deceased for getting her fetus aborted.

23. It is contended that the deceased was having affair with

a boy named Rahul. In the suicide note also she has not

mentioned name of any persons and suicide note is undated. It is

also contended that Babulal was acquitted by the Court as Monika

deposed before the Court that this is not Babulal who had

committed rape with her sister. It is argued that the deceased was
(10 of 19) [CRLA-495/2016]

a major, even if her fetus was aborted, it cannot be presumed that

gang rape was committed with her. Further deceased had given an

affidavit just prior to her death to the police, wherein also she has

not levelled any allegation with regard to rape against the

appellants. The possibility that she conceived because of her

relations with some other boy named Rahul can not be ruled out.

24. It is contended by counsel for the appellants that if

material contradiction are there and there are totally conflicting

versions of prosecutrix as to what was stated in complaint and

what was deposed before the Court, conviction cannot be

sustained.

25. In support of this argument, counsel for the appellants

has placed reliance on “Rai Sandeep Alias Deepu vs. State

(NCT of Delhi)” (2012) 8 Supreme Court Cases 21.

26. Reliance has also 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 to be rejected. It was also observed if

the statement suffers from serious infirmities, inconsistencies and

deliberate improvements on material point, reliance cannot be

placed thereon.

27. 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
(11 of 19) [CRLA-495/2016]

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

credibility of the prosecutrix.

28. 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.

29. Counsel for the complainant and learned Public

prosecutor have opposed these appeals. Their contention is that

the Court below has passed detailed judgment dealing with all the

objections raised by counsel for the appellants. It is contended

that there is no reason why prosecutrix would depose against her

own mother, when it has come on record that she was not happy

with her father, who was always quarreling with her mother and

she left her father’s house with her mother. It is also argued that

baring minor discrepancy statement of prosecutrix is sterling

worth and the judgment of the Court below which places reliance

on the statement of prosecutrix cannot be said to be bad in law.

30. With regard to delay in lodging of the complaint, it is

contended that prosecutrix was under a shock due to demise of

her sister and it is only after she came out of the shock and

disclosed the incident to her father that the complaint was lodged.

The delay in lodging of complaint is thus explained.

31. Learned Public Prosecutor has further contended that

PW-3-Kailash Chand, owner of the house situated at Jailal Munshi
(12 of 19) [CRLA-495/2016]

Ka Rasta, has stated before the Court that Devaram took his

house on rent on 06.02.2010. He came with Shakuntala and her

daughters and introduced himself as husband of Shakuntala and

considering that it was a family, he let out the premises. It is

argued that no enmity whatsoever is shown by the appellant with

PW-3 Kailash Chand. It is further contended that as appellant-

Devaram was staying with appellant-Shakuntala as husband and

wife, therefore, the fact that they were living in adultery is proved

beyond reasonable doubt and Court below has not erred in

convicting the appellant-Devaram for offence under section 497

IPC.

32. I have considered the contentions.

33. Appellant-Shakuntala is mother of the deceased and

appellant-Devaram is a distant relative of Shakuntala, Shakuntala

was not in good terms with her husband. She had lodged

complaint under Section 498-A IPC against Heeralal in the year,

2005, thereafter, she again lodged a complaint against Heeralal on

19.03.2009. Devaram was State President of Ambedakar Vichar

Manch Sansthan which was formed for helping the poor and

deprived persons. When Devaram received information about

Heeralal treating Shakuntala with cruelty, Devaram gave an

affidavit in F.I.R. No.216/2005 lodged by Shakuntala. Affidavit is

exhibited as Ex.D-1. When Shakuntala alongwith her daughters

went missing in 2009, appellant-Devaram made a complaint to the

Chief Minister Office Ex.D-20, on which Shakuntala alongwith her

daughters was recovered by the police on 29.04.2009. Appellant-

Devaram after receipt of a letter from Shakuntala Ex.D-22, gave

complaint to Additional Director General, Crimes on 06.07.2009

which is annexure D-23. On this complaint, S.H.O. Anoop Singh
(13 of 19) [CRLA-495/2016]

was charge-sheeted and was punished vide Ex.D-5 on

25.03.2010. The investigation of the case was then transferred to

Additional Superintendent of Police where also Heeralal tried to

pressurize the appellant, upon which complaint was given to

Human Rights Commission by appellant-Devaram. The same is

exhibited as Ex.D-28. Appellant-Shakuntala thereafter, filed a

complaint Ex.D-30 before Additional Judicial Magistrate, Jaipur

District, Jaipur on 04.05.2009. Police in that case submitted

charge-sheet Ex.D-31 against Heeralal. Name of appellant-

Devaram is appearing in the charge-sheet submitted by the police.

Thus it is clear that complainant-Heeralal was having enmity with

his wife-Shakuntala and appellant-Devaram.

34. It is also revealed from perusal of the record that

daughter of Shakuntala and Heerala committed suicide on

06.03.2010, complaint was lodged on 23.03.2010. In the belated

complaint, the allegation was that deceased was pressurized to

have illicit relations with Ajay and for that reason she committed

suicide. The story was later on developed to implicate the

appellants for graver offence. It is important to note that the

allegation that appellant forced the deceased to have relations

with Ajay is not supported by sister of the deceased. Ajay was

neither arrested nor put to trial and the investigation has not

revealed that the deceased was threatened to have illicit relations

with Ajay. The allegation in the complaint were thus not

established.

35. 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-7 regarding harassment of her younger

daughter by few boys. This complaint bears signatures of the
(14 of 19) [CRLA-495/2016]

deceased. Thereafter statement of the deceased was also

recorded in this case 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.

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

person report was lodged, Shakuntala alongwith her two

daughters was recovered by the police. Statement of daughter

was recorded as Ex.D-6, 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 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. No hotel record is produced to

establish that Devaram and Sadhu Ram booked two rooms. The

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

which cannot be believed.

37. The present complaint was lodged after seventeen days

of demise of deceased and was registered under Section 306, 107,

497 and 120-B IPC. There was no allegation, whatsoever, in the

complaint Ex.P-26 with regard to rape. The main allegation in the

complaint Ex.P-26 pertains to Section 497 IPC. The allegations

were that appellant-Devaram was having relations with appellant-

Shakuntala. Whatever has been stated in evidence by PW-12 and

PW-10 are an improvement on the version mentioned in the

complaint. PW-10 in his examination in chief has stated that when
(15 of 19) [CRLA-495/2016]

he got information about demise of his daughter and reached the

SMS Hospital, his younger daughter came running to him and

started crying and told him that appellants Devaram and

Shakuntala have killed her sister. She also mentioned that

Devaram has raped her and her sister. She also mentioned that

Babulal Gurjar, Vishram Gurjar, Sadhu Ram Gurjar, Raju Meena

and another Raju Meena, Chanda Meena and Devaram have raped

them many times and that due to rape, her deceased sister

became pregnant and she was aborted. None of this version is

appearing in the complaint. The fact that this came to the notice

of the complainant immediately after demise of his daughter and

still the same was not mentioned in the complaint, goes to show,

that this story has been built up later on by the complainant, to

implicate the appellants. The fact that complainant was having

enmity with appellants is established from the complaints and

F.I.R. lodged by the appellants against the complainant, hence

improvement from the versions mentioned in the belated

complaint cannot be made basis for conviction.

38. Further PW-10 in his cross-examination has admitted

that in Ex.P-26, complaint, it is not mentioned that Devaram,

Shakuntala, Babulal and Basram got her daughter’s fetus aborted.

He has also admitted that it is not mentioned in Ex.P-26 that her

daughter became pregnant. He has also admitted that it is not

mentioned in the complaint that Devaram has raped her

daughters.

39. The other piece of evidence which has been made basis

for conviction is the suicide note, no name is mentioned in the

suicide note and PW-10 in his cross-examination has admitted
(16 of 19) [CRLA-495/2016]

that no one’s name was mentioned in the suicide note. Thus

suicide note cannot be made basis for convicting the appellants.

40. Prosecutrix, sister of deceased has levelled allegations

with regard to rape. The first incident of rape is stated to have

taken placed in Hotel Prince. The allegation is against Sadhu Ram

and Devaram. Immediately on the next day, police recovered

Shakuntala and her daughters, no report with regard to rape was

made, rather what was stated to the police was that they had

come on their own and a boy had got the room booked for them.

The allegation has also been levelled against Babulal, Vishram

Gurjar, Devaram, Sadhu Ram Gurjar, Chanda Meena, Ranu 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. With regard to

staying at Prince Hotel, she admits that the name of the hotel is

not mentioned in the complaint Ex.P-26.

41. The chances of false implication cannot be ruled out as

Devaram had filed complaint against S.H.O. and in inquiry S.H.O.

was punished. Appellants Devaram and Shakuntala were further in

bad terms with the complainant as Shakuntala had filed F.I.R.

against the complainant and Devaram was supporting her.

Statement of prosecutrix with regard to rape are not at all reliable

since there is no mention about the same in the complaint. There

is no mention about it in the statement recorded on 30.04.2009 in

the missing person report. There is no allegation with regard to

rape at Hotel Prince in Merta City in the statements recorded

under Section 164 Cr.P.C. which was recorded on 23.06.2010 and

which is exhibited as Ex.D-13. In Ex.D-6, it is mentioned that the

prosecutrix stayed at Prince Hotel. The statement was recorded
(17 of 19) [CRLA-495/2016]

soon after prosecutrix, her sister and mother were recovered by

the police. In the entire statement, there is no mention of the

name of Devaram and Sadhu Ram. Prosecution has further failed

to produce the hotel register to establish that two rooms were

taken by the prosecutrix, her sister, her mother, Devaram and

Sadhu Ram.

42. Learned trial Court has not taken into consideration the

inordinate delay in filing the complaint and the fact that the

complaint was not having any mention about rape being

committed with prosecutrix and the deceased. Trial Court has also

not taken into account the improvement made by the witnesses to

implicate the appellants and the fact that there was every

possibility false implication as complainant was having enmity with

appellants.

43. As far as accused-Basram is concerned, he is neither

named in the complaint nor his name is appearing in the

statement of the prosecutrix recorded after she was recovered in

the missing person report.

44. As far as Devaram is concerned, PW-3 Kailash Chand

has deposed before the Court that he gave his house on rent on

06.02.2010 at the rate of Rs.2,100/- per month as Devaram told

him that he would stay with his wife and with his two daughters,

he has also stated that Devaram took the house on rent by

showing Shakuntala as his wife. PW-12 prosecution has also

deposed that Devaram and her mother were living as husband and

wife. Also appellant Devaram was aware of the fact that

Shakuntala is wife of Heera lal, still he took house of Kailash

Chand showing Shakuntala as his wife. Thus, appellant Devaram
(18 of 19) [CRLA-495/2016]

has been rightly convicted for offence under Section 497 IPC by

the trial Court.

45. The statement of prosecutrix and complainant shows

several lacunae. There are serious contradiction in her statement

and they have 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

under Section 376(2)(g) read with Section 120-B IPC in alternate

Section 107 and Section 306 IPC cannot be sustained

46. In view of the above the appeal filed by Devaram is

partly allowed. His conviction under Section 376(2)(g) read with

Section 120-B IPC in alternate Section 107 IPC and Section 306

IPC is quashed, however, his conviction under Section 497 IPC is

upheld. If he has undergone the sentence imposed under Section

497 IPC, he be released forthwith if not required in any other

case.

47. Appeals of Shakuntala and Basram is allowed. They are

acquitted of the charges levelled against them. They be released

forthwith.

48. 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

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

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

(19 of 19) [CRLA-495/2016]

49. Record of the Court below be returned forthwith.

(PANKAJ BHANDARI),J

Arti/52-54

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