Rajasthan High Court - Jodhpur

State vs Buta Singh And Ors on 20 July, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 460/1989

State

----Appellant Versus Buta Singh And Ors.

                                                                   ----Respondent


For Appellant(s)            :     Mr. Vikram Sharma, P.P.
For Respondent(s)           :     Ms. Anjali Kaushik

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/07/2022 Pronounced on 20/07/2022

1. This Criminal Appeal under Section 378 Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, prayed that the leave to appeal in the present matter may kindly be granted and the appeal may kindly be accepted and entertained. It is further prayed that the order of the learned District and Sessions Judge Raisinghnagar dated 2.8.1989 may kindly be set aside and the accused persons may kindly be convicted and sentenced in accordance with law and appropriate sentences may kindly be awarded."

2. This Criminal Appeal has been preferred against the

judgment, dated 02.08.1989, passed by the learned Sessions

Court whereby the respondents were acquitted of all the

charges against them for the offences under Sections 366 and

376 I.P.C.

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3. Brief facts of the case as placed before this Court by learned

Public Prosecutor are that on 14.04.1986 Mahendra Singh S/o

Banta Singh lodged an F.I.R. at the Police Station, Anupgarh

alleging therein that he was not at home on 11.04.1986 for some

work and that upon his return on 12.04.1986, he learned that his

sister, Angrez Kaur @ Guddi, aged about 14 years, while asleep in

the courtyard of their house, on the night of 11.04.1986, at about

1 a.m. she was found to be missing from the charpai by her elder

sister, Nasib Kaur. And that, in the morning the mukhiya Jeetsingh

was called and it was found that their sister was at the residence

of Buta Singh, who lived near Looniya, and that the accused

respondents, Buta Singh, Manga Singh, and Darshan Singh, had

raped Mahendra Singh's minor sister Guddi.

4. Learned Public Prosecutor submits that the F.I.R. was lodged,

upon receipt of such report, against the respondents for the

offences under Sections 366 and 376 I.P.C. And that, after the

investigation was completed, a challan was filed against all the

accused persons before the concerned Magistrate and that it was

committed for trial before the concerned Sessions Court. And that,

vide judgment dated 02.08.1989, the learned Sessions Court

below erred in acquitting the respondents of the charges filed

against them for the offences as already mentioned.

5. Learned Public Prosecutor further submits that the learned

Sessions Court has erred in so acquitting the respondents, and

without rhyme or reason, disbelieved the version of the victim,

who in her statement clearly narrated the story, stating therein

that she was threatened and beaten by the accused respondents.

And that, given the facts and circumstances of the case, it was not

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possible to produce any independent witness to corroborate the

version of the victim.

5.1 Learned Public Prosecutor also submits that the testimony of

the victim clearly reveals that while she was sleeping in the

courtyard (aangan) of the her house, along with her elder sister,

mother and father, and that, she suddenly awoke to find the rope

which was used to tie their buffalo/bull had came loose, which

when she had then gone to fasten, the respondents, Buta Singh,

Darshan Singh, Manga Singh @ Bhaag Singh kidnapped her and

took her to and that, Buta Singh beat her and forced himself upon

her after which each of the respondents forced themselves upon

her, twice over, due to which she bled from her private parts, and

her clothes were also blood stained.

After which, the respondents threatened her, to not make any

disclosure of what had transpired, and that Buta Singh forced her

to wash her blood stained salwar, telling her that if her family

found out she would be beaten. After which they left her at Kanak.

It was further deposed by her that the next day the respondents

picked her up from Kanak and dropped her back to her home.

6. Learned Public Prosecutor also submits that the delay in

filing of the F.I.R., by the complainant, Mahendra Singh, the

brother of the victim, was explained and that such delay cannot be

held to be fatal to the case of the prosecution.

7. Learned Public Prosecutor further submits that merely

because P.W. 3 and P.W. 4 turned hostile, it does not take the case

to the realm of reasonable doubt.

8. Learned Public Prosecutor also submits that the learned

Sessions Court has wrongly disbelieved the statement of P.W. 6

Ramsingh, who prepared the site report (naksha mauka) and who

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got the victim medically examined. That her clothes were taken

into custody and examined per the due procedure established by

law. And that, there are 8 injuries on the person of the victim.

Furthermore, the radiologist's report reveals that the victim is

aged about 17 years, a minor. And that, P.W. 8 Dr. Darbir Singh

deposed that the vicitm was aged about 16 years of age.

9. Learned counsel appearing on behalf of the respondents

submits that the learned Court below has rightly passed the

impugned judgment of acquittal, after looking into the overall

facts and circumstances of the case, and looking particularly into

the evidences placed on record before it, and correctly afforded

the respondents the benefit of doubt.

10. Learned counsel appearing on behalf of the respondents

further submits that there was a dispute between the victim's

brother and the respondents herein with regard to water, and that

the case lodged against them is an attempt to falsely implicate

them, owing to the said dispute.

11. Learned counsel for the respondents also submits that the

testimony of P.W. 1, the victim, was rightly disbelieved by the

learned Court below. And that, the allegations made therein did

not inspire confidence in the learned Court below.

12. Heard learned counsel for both parties and perused the

record of the case.

13. This Court observes that the learned Court below in

acquitting the respondents of the charges framed against them for

the offences under Sections 366 and 376 I.P.C. has rightly given

them the benefit of doubt.

(5 of 7) [CRLA-460/1989]

14. The prosecution has failed to take the case beyond the realm

of reasonable doubt, and has passed a detailed and speaking

order of acquittal for the same.

15. This Court arrives at this conclusion on making the following

observations, as rightly recorded by the learned Court below:-

15.1 There is a 3 day delay in filing of the F.I.R. by the

complainant, the brother of the girl alleging that the offence of

rape was committed on her by the respondents herein, which

creates a doubt in the favour of the respondents. Furthermore,

there was acrimony between the complainant's family and the

respondents, owing to a water dispute between them.

15.2 The injuries on the person of the victim, as per the medical

report, at Ex. P/2, generated by Dr. P.L. Mathur and Dr. Jyotsna

Ojha, state that the injuries appear to be 8-20 days old from the

date of medical examination.

15.3 The victim states that she awoke at about 1 a.m. on the

night of the incident in question, and saw that the rope which was

used to tie their bull/buffalo had come loose, and that when she

went to fasten the same, the respondents kidnapped her and took

her away. This likelihood of the same that just when the victim

happened to awaken, and then happened to notice the rope with

which the bovine was tied was loose, and that at the very moment

the respondents were waiting in the lurch and then kidnapped her

and subsequently raped her, seems highly unlikely, and is not

sufficiently corroborated with support of other evidences.

15.4 P.W. 3 and P.W. 4 turned hostile and did not support the

version of the prosecution.

15.5 Neither the P.W. 6 Ramsingh, the Investigating Officer, nor

the victim have mentioned in their statements deposed in their

(6 of 7) [CRLA-460/1989]

testimonies anything regarding Bikaner, whereas it is the version

of the prosecution that the medical examination to verify the age

of the victim was conducted in a facility in Bikaner. This further

casts a shadow of doubt on the version of the prosecution.

Whereas the medical examination that was conducted in Sri

Ganganagar reveals that the age of the victim may be between

17-19 years at the time of the incident, whereas in the F.I.R. it is

averred that the victim was about 14 years.

15.6 Furthemore, the testimony of Dr. S.C. Bharadwaj, P.W. 7 in

his testimony states that no opinion could be given with respect to

recent sexual activity of the victim.

15.7 Lastly, the testimony of Chindo @ Chindra Pal, the neighbour

of the victim, states that she went with one Roshan, and upon her

return, came back with 2 new sets of clothes, a radio and Rs.

250/- cash.

16. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Chandrappa and Ors. v. State

of Karnataka (2007) 4 SCC 415 wherein the Hon'ble Apex

Court has made observations, with regard to the powers of an

appellate Court while dealing with an order of acquittal of a

subordinate Court.

Relevant portion of the judgment is reproduced as under:-

"1.An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

2. The Cr.P.C. puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an

(7 of 7) [CRLA-460/1989]

appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

17. On a thorough perusal of the evidences placed on the

record; the testimonies of the witnesses, especially the

testimonies of the medical officers, the medical report so

generated by them, and looking into the overall facts and

circumstances of the present case, and the observations made

by the Hon'ble Apex Court in Chandrappa (supra), this

Court finds that the learned Court below has rightly passed

the impugned order of acquittal. And that the impugned

judgment therefore, deserves to affirmed and upheld.

18. Resultantly, the impugned judgment of acquittal passed

by the learned Court below is upheld, and consequently, the

present criminal appeal fails.