Deva And Anr vs State
2022 Latest Caselaw 7012 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Jail Appeal No. 112/1994

Deva And Anr.

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Ashok Kumar Panwar, Amicus Curiae For Respondent(s) : Mr. Mukhtiyar Khan PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

11/05/2022

1. This criminal jail appeal has been preferred against the

judgment dated 08.02.1994 passed by the learned Additional

Sessions Judge, Udaipur in Sessions Case No.93/93, whereby the

accused-appellants were convicted for the offences under Sections

366 and 376 IPC; for the offence under Section 366 IPC, each of

the accused-appellants were ordered to undergo two years

rigorous imprisonment and a fine of Rs.200/- each, in default of

payment of which, each of them were to undergo further one

month's imprisonment and; for the offence under Section 376

IPC, each of the accused-appellants were ordered to undergo five

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

default of payment of which, each of them were to undergo

further two month imprisonment; both the sentences were to run

concurrently.

2. Brief facts of this case, as noticed by this Court, are that on

26.03.1993 at about 03:00 p.m., one Sita Bai

(complainant/prosecutrix) lodged a report before the Police

Station, Kurabad, District Udaipur to the effect that after Holi

(2 of 6) [CRLJA-112/1994]

festival, prior to 6-7 days of lodging the report, while she departed

from her village, while accompanying one Hanjaram, and reached

to Kotda Mamdev, near Jagat Road to work as labourer; she did

such job four about five days and one day prior to lodging of the

report at about 5:00 p.m., she returned to her hut at Jagat Road,

where she was staying with Hanja Ram, Nana Ram, Shanti Lal and

Laxmi; after having meal, the prosecutrix went to sleep. It was

further reported that in the night, the accused-appellants

alongwith one Mohan Rawat r/o Mam Dev came there and make

the prosecutrix awake, whereafter, they dragged her away;

thereafter, she was subjected to forcible sexual intercourse by the

accused-appellants; at about 9:00 p.m., she was dropped by the

accused-appellants back to her hut. The whole incident was told

by the prosecutrix to Laxmi and other companions, and thereafter,

the report was lodged before the police station, as above.

2.1 On the basis of the aforementioned report, a case was

registered against the accused-respondents for the

aforementioned offences, and after due and thorough

investigation, charge-sheet was filed against the accused-

appellants for the offences under Sections 366 & 376 IPC before

the learned Munsiff & Judicial Magistrate No.1, Udaipur; the case

upon being committed for trial was sent to the learned Sessions

Judge, Udaipur ('trial court') for the necessary adjudication and

trial, whereafter, upon due trial, the learned trial court, vide the

impugned judgment and order, convicted and sentenced the

accused-appellants as above.

3. Learned counsel for the accused-appellants submits that as

is apparent on the face of the record, the prosecutrix and her

other companions were working as labourer through Contractor

(3 of 6) [CRLJA-112/1994]

Kurichand, and the present accused-appellants though were also

working under the same contractor, but the accused-appellants

were later on ousted from the labour work, on count of some

money dispute, which resulted into animosity between the said

contractor and the accused-appellants; thus, at the instance and

instigation, the prosecutrix has falsely implicated the accused-

appellants in this case.

3.1 Learned counsel further submits that even the version of the

prosecutrix is believed, then also, by no stretch of imagination, it

can be presumed that while the prosecutrix was dragged out of

her hut by the accused-appellants, her companions would not

awake, following the alarm, if any, raised by the prosecutrix at

that time. Thus, as per learned counsel, in absence thereof, the

version of the prosecutrix and the prosecution story is clearly

under a shadow of doubt; hence, even if any sexual intercourse

took place, the same was out of consensual relationship between

the parties.

3.2 Learned counsel also submits that as per the version of the

prosecution, during the alleged rape, her apparels were torn and

her bangles were broken, but the same were not produced in

evidence, so as to prove such version beyond doubt.

3.3 Learned counsel further submits that as per the prosecution,

the age of the prosecutrix, at the relevant time was 16-17 years;

however, as per her cross-examination, her age was 18/19 years;

such inconsistency, make the prosecution story all the more

doubtful.

3.4 Learned counsel however, submits that vide order dated

02.05.1994 passed by this Hon'ble Court, the sentence awarded to

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the accused-appellants vide the impugned judgment, was

suspended, and thus, they are on bail.

3.5 Learned counsel thus, submits that in the aforesaid

backdrop, the learned trial court ought to have acquitted the

accused-appellants from all the charges levelled against them; but

the learned trial court, without due appreciation of the evidence

placed on record before it and without taking into consideration

the overall facts and circumstances of the case, passed the

impugned judgment of conviction against the accused-appellants,

which is not sustainable in the eye of law, and thus, deserves to

be quashed and set aside by this Court, more particularly, when

the necessary element of corroboration, so as to connect the

accused-appellant with the alleged crime in question, is clearly not

there in the present case.

4. On the other hand, learned Public Prosecutor, while opposing

the aforesaid submissions made on behalf of the accused-

appellant, submits that not even an iota of inconsistency in the

testimony of the prosecution witnesses was proved before the

learned trial court, and thus, the testimony so rendered being

clear and consistent was sufficient so as to convict the accused-

appellants for the alleged offences. Furthermore, the testimony of

the prosecution witnesses, medical evidence, amongst others,

clearly connect the present accused-appellants with the alleged

crime in question, and thus, the necessary element of

corroboration is very much present and proved in this case.

4.1 Moreover, as per learned Public Prosecutor, the age of the

prosecutrix at the time of commission of the crime in question,

was only between 16-17 years, which is also apparent on the face

of record. Thus, as per learned Public Prosecutor the culprits

(5 of 6) [CRLJA-112/1994]

(accused-appellants) of the crime in question, more particularly,

subjecting a young girl of that age, required to be punished with

severe punishment, and hence, the learned trial court has rightly

convicted and sentenced the accused-appellants vide the

impugned judgment.

4.2 Learned Public Prosecutor thus, submits that the submission

made on behalf of the accused-appellants that the learned trial

court has passed the impugned judgment, without due

appreciation of the evidence placed on record before it and lacks

consideration of the overall facts and circumstances of the case,

does not merit acceptance.

4.3 Learned Public Prosecutor, therefore, submits that the

attempt on the part of the accused-appellants to make out a case

of false implication, owing to the animosity between the

aforementioned contract and the present accused-appellants, was

set at naught by the learned trial court with cogent reasoning, and

rightly so.

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

perusing the record of the case, this Court finds that the learned

trial court has committed no error in passing the impugned

judgment of conviction against the present accused-appellants, as

the same reflects a threadbare and issue-wise analysis, as made

by the learned trial court, before passing the impugned judgment.

6. This Court finds that the concerned doctor, who medically

examined the prosecutrix, opined that she sustained as many as

ten external injuries on her person; though he could not give any

definite opinion whether she was subjected to rape or not, but he

opined the age of the prosecutrix to be between 16-17 years, at

the relevant time. Even in absence of any definite opinion of the

(6 of 6) [CRLJA-112/1994]

concerned doctor regarding the commission of rape, the accused-

respondents could not prove that the several injuries as sustained

by the prosecutrix, were not the result of the alleged crime in

question. Thus, the said injuries clearly falsifies the claim of the

accused-appellants regarding their consensual relationship with

the prosecutrix.

7. The learned trial court also rightly recorded that the minor

inconsistencies in the testimony of the witnesses, would not come

in the way of believing the version of the prosecutrix (victim of

rape) aged 16-17 years, more particularly, when even prima facie,

there was no evidence led by the accused-appellant to falsify the

clear testimony of the prosecutrix. Thus, this Court agrees,

amongst others, with the finding recorded by the learned trial

court in the impugned judgment that the prosecution has

successfully proved its case, beyond all reasonable doubt.

8. In view of the above, this Court does not find any legal

infirmity in the well reasoned speaking judgment passed by the

learned trial court, so as to warrant any interference by this Court.

9. In light of the aforesaid observations, the present appeal is

dismissed. The appellants are on bail. Their bail bonds and

sureties are forfeited; they are directed to be taken into custody

forthwith and sent to the concerned Jail to undergo the remaining

period of the sentence. All pending applications are disposed of.

Record of the learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

40-SKant/-

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