Nathu vs State
2022 Latest Caselaw 5104 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 346/1993

Nathu

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Abhishek Charan For Respondent(s) : Mr. Mukesh Trivedi PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

06/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been

preferred against the judgment and order dated 21.08.1993

passed by learned Additional District & Sessions Judge, Nimbahera

in Sessions Case No.112/92, whereby though the accused-

appellant was acquitted of the offence under Section 392 IPC, but

was convicted for the offence under Sections 366 & 376 IPC; for

the offence under Section 366 IPC, he was sentenced to undergo

three years rigorous imprisonment and a fine of Rs.500/-, in

default of payment of which, he was ordered to undergo further

three months imprisonment and; for the offence under Section

376 IPC, he was sentenced to undergo seven years rigorous

imprisonment and a fine of Rs.1000/-, in default of payment of

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which, he was ordered to undergo further six months

imprisonment.

3. Learned counsel for the accused-appellant submits that on

31.05.1992, complainant-Kamla (prosecutrix) verbally informed

the Police Station, Nimbahera that the present accused-appellant

was her uncle (mausa). The prosecutrix also alleged that she used

to accompany his aunt (Mausi) (Ghisi w/o accused Nathu) to the

mines (khadaan), where they used to work as labour (hammalli);

her aunt also used to take her to the house of the accused, very

often. It was also alleged that 3-3½ months preceding the date of

the information to the police, the aunt asked the prosecutrix to

stay at her house, keeping in view the midnight hours and on the

pretext that the mausa (present accused) was away due to some

work. Thereafter, the accused-appellant returned back, and after

some time, when the prosecutrix fell asleep at the house of her

aunt, the accused-appellant covered her mouth and committed

forcible sexual intercourse with the prosecutrix; it was further

alleged that not only this, upon coming to know about the

incident, her aunt restrained the prosecutrix from reporting the

matter to her parents on the ground, amongst others, that if it is

so done, the reputation of the family of the prosecutrix would be

at stake.

4. Learned counsel for the accused-appellant also submits that

on the basis of the aforementioned report, a case was registered

against the accused persons (Nathu and his wife Ghisi) for the

offences under Sections 366, 376 and 392 IPC at Police Station,

Nimbahera; after investigation, a charge-sheet was filed before

the learned trial court against the accused persons. Learned

counsel further submits that thereafter, the charges were framed

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by the learned trial court against the accused persons for the

aforesaid offences as well as under Section 363 IPC, as also

against one Shanker Rao for the offence under Section 414 IPC.

5. Learned counsel however, submits that vide the impugned

judgment and order, accused Ghisi wife of the present accused, on

count of her being a lady, was convicted only for the offence under

Section 366 IPC and was sentenced to undergo 15 months

imprisonment and a fine of Rs.250/-, in default of payment of

which, she was ordered to undergo further two months

imprisonment; while Shanker Rao was acquitted of the charges

levelled against him; the present accused-appellant though was

acquitted of the charge under Section 392 IPC, but was convicted

under Sections 366 & 376 IPC and sentenced as above. Learned

counsel further submits that the sentence awarded to the

accused-appellant was however, suspended by this Hon'ble Court

vide order dated 28.10.1993 passed in S.B. Cr. Misc.

Bail/Suspension of Sentence Petition No.342/1993.

6. Learned counsel for the accused-appellant also submits that

the allegation levelled by the prosecutrix against the appellant

that he took the prosecutrix to watch a movie without her free

consent and will; it was also alleged that the prosecutrix

thereafter, was forcibly taken to Neemuch and Indore. Learned

counsel further submits that as regards the age of the prosecutrix,

there is no sufficient material placed on record to show that she

was below 18 years of age.

7. As regards the abduction of the prosecutrix by the accused-

appellant, learned counsel for the accused-appellant submits that

it is clear from the statement of the prosecutrix herself that on the

pretext of being taken away to Badi Sadri, she was taken to

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Lalpura and other places by bus (public transport); thereafter,

through public transport she was taken to Neemuch, Indore etc.

and stayed thereat with the accused-appellant for many days.

Learned counsel thus, harped upon the fact that by no stretch of

imagination, it can be presumed that any person having the age of

above 18 years, if taken away forcibly and without free consent

and will, would not raise any alarm so as to resist such an act,

despite the fact that the prosecutrix had as many opportunities to

raise alarm, as she was alleged to have been taken away through

public transport to various public places.

8. Learned counsel for the accused-appellant further submits

that as regards the commission of alleged rape, it was stated by

the prosecutrix that she was being sexually harassed at various

places on several occasions, but the fact remains that she has not

reported the matter either to her parents nor the police or to

anyone else, which is also unbelievable, looking to the age of the

prosecutrix.

9. Learned counsel for the accused-appellant also submits that

so far as the allegation regarding forcibly taking away of the

ornaments (kadiyan) of the prosecutrix is concerned, there is no

independent witness to such an incident; further, no independent

witness has been produced by the prosecution, so as to

substantiate the allegation regarding any threat of dire

consequences being given by the accused-appellant to the

prosecutrix.

10. Learned counsel for the accused-appellant thus, harped upon

the fact that in the aforesaid backdrop, the present case clearly

reveals consensual relationship between the accused-appellant

and the prosecutrix, which is also substantiated by the fact that

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the matter was reported to the police after an inordinate delay,

despite the prosecutrix had many opportunities to do so; and such

delay has not been satisfactorily by the prosecutrix, by placing the

relevant material on record. Thus, as per learned counsel, the

impugned judgment and order passed by the learned trial court,

convicting the accused-appellant, as above, is not sustainable in

the eye of law; this is more so when the prosecution has also not

been able to prove its case beyond the reasonable doubt, and the

facts and material placed on record on behalf of the accused-

appellant are sufficient to show that no forcible sexual intercourse,

under the garb of any threat, was committed by the accused-

appellant, rather it is a case of consensual relationship.

11. Learned counsel for the accused-appellant placed reliance on

the precedent law laid down by the Hon'ble Supreme Court in Md.

Ali alias Guddu Vs. State of U.P., 2015 CRI.L.J. 1967,

relevant portion of which reads as under:

"21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne

(6 of 8) [CRLA-346/1993]

out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In absence of both, we are compelled to hold that the learned trial Judge has erroneously conviction the accused-appellants for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same."

12. On the other hand, learned Public Prosecutor submits that

though there may not be any independent evidence on record

regarding the allegation that the prosecutrix has been forcibly

taken away by the accused-appellant under the threat of dire

consequences, but the testimony of the prosecutrix is sufficient to

the effect that she was taken away by the accused-appellant on

the pretext of watching movie at Badi Sadri, but she was taken to

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various other places under threat, and thereafter, she was

subjected to forcible sexual intercourse many times. Learned

Public Prosecutor thus, submits that the impugned judgment and

order passed by the learned trial court was based on due

appreciation of the material available on record and the same is in

tandem with the provisions of law. Learned Public Prosecutor

further submits that the ingredients of the offences, under which

the conviction and sentence in question is made, are clearly

discernible on the face of the record; and thus, the prosecution

has been able to prove its case beyond reasonable doubt, and

nothing was forthcoming on the record to show that the material

on record is detrimental to the case of the prosecution.

13. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the precedent law cited

at the Bar, this Court finds that the allegation levelled by the

prosecutrix that she was kept under constant threat by the

accused-appellant so much so that she was rendered unable to

raise any alarm or draw the attention of even her co-passengers in

the public transport, in which she had travelled with the accused-

appellant from one place to the other, where the accused-

appellant committed forcible sexual intercourse with her during

stay at such places, does not commend for acceptance, this is

more so when she was alleged to have been taken to various

public places by the accused-appellant.

14. The delay on the part of the prosecutrix to lodge the case

with the police is also a factor which weighs against the

prosecution case. It is beyond ones comprehension as to how and

why the prosecutrix who was alleged to have been taken to

various public places in public transport, her parents did not

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inform the police about her missing. As parents, judged by the

normal human conduct, they could not have been so indifferent

and that too in relation to their daughter for such a long period, if

the charges levelled had been true.

15. Thus, on the aforesaid counts, the present case appears to

be the one involving consensual relationship, as nothing was

forthcoming to show that at the time of the alleged incident, the

prosecutrix was minor, and thus, the prosecution had failed to

prove the charges against the accused-appellant beyond all

reasonable doubts.

16. Resultantly, while deriving strength from, amongst others,

the aforementioned precedent law, the present appeal is allowed.

Accordingly, the conviction of the appellant as recorded vide the

impugned judgment dated 21.08.1993 passed by the learned

Additional District & Sessions Judge, Nimbahera in Sessions Case

No.112/92 is quashed and set aside. The appellant is acquitted of

the charges levelled against him. The appellant is on bail; he need

not surrender. His bail bonds stand discharged accordingly. All

pending applications also stand disposed of. Record of the learned

court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

38-SKant/-

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