Deva And Anr vs State
2022 Latest Caselaw 7075 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

12/05/2022

1. When the matter was listed and heard yesterday i.e.

11.05.2022, Mr. Ashok Kumar Panwar, who appeared as Amicus

Curiae, made detailed submissions.

2. After hearing the submissions and perusing the record of the

case, this Court passed the following order, yesterday i.e.

11.05.2022:

"In the result, the appeal is allowed. (see separate judgment)."

3. Thereafter, yesterday itself, upon retiring in the Chamber, the

judgment was dictated to the concerned stenographer, but due to

a bonafide mistake, this Court went on to give dictation on merits,

without considering an important element of the prosecutrix

having been taken away from a hut at Jagat Road, even when the

hut was occupied by the prosecutrix, alongwith other co-

occupants, namely, Hanja Ram, Nana Ram, Shanti Lal and Laxmi.

3.1 Upon missing such an element, this Court passed the

judgment of dismissal of the appeal; upon the judgment being

(2 of 9) [CRLJA-112/1994]

signed yesterday, the stenographer was directed to upload the

same, and the judgment was accordingly uploaded, yesterday

itself.

4. Learned counsel for the appellant, Mr. Ashok Kumar however,

brought to notice of the Court Master today i.e. 12.05.2022 that

the essential part of the facts has been missed in the concluding

part of the judgment and the result of the appeal pronounced in

the open Court has been mistakenly reversed.

5. Since the complete chain of events is of yesterday, therefore,

this Court has a clear recollection of the chain of events, and

immediately realized that due to a bonafide mistake, the

proposition of allowing the appeal did not turn into the

consequential judgment, but instead, the elementary fact of the

incident having been initiated in the presence of four other

cohabitants of the hut remained missing, which was the reason for

this Court to arrive at the conclusion of acquittal at the time of

pronouncing the result of the appeal in the open Court yesterday

i.e. 11.05.2022.

6. Releasing the mistake, today itself, this Court immediately

directed the Court Master to stop the office from issuing certified

copies of the judgment, as well as to delete the uploaded

judgment dated 11.05.2022 from the official web portal of this

Hon'ble Court, which was deleted accordingly; the Court Master

was also directed to get the matter listed in the category "To be

mentioned" for dictation today itself, and the same is being listed

before this Court today.

7. To undo the bonafide mistake, the judgment passed by this

Court in the present case, yesterday i.e.11.05.2022, is substituted

by the following:

(3 of 9) [CRLJA-112/1994]

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 months 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 festival, prior to 6-7 days of

lodging the report, while she departed from her

village, accompanying one Hanjaram, and reached to

Kotda Mamdev, near Jagat Road to work as a labourer;

where she worked for about five days, and one day

prior to the 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; and after having her meal, the prosecutrix

(4 of 9) [CRLJA-112/1994]

went to sleep. It was further reported that in the night,

the accused-appellants alongwith one Mohan Rawat

came to the hut and awakened the prosecutrix, and

that they dragged her away from the hut; thereafter,

she was subjected to forcible sexual intercourse by the

accused-appellants; and that at about 9:00 p.m., she

was dropped by the accused-appellants back to her

hut. The whole incident was narrated 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, a 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 labourers through the Contractor,

Kurichand, and though the present accused-appellants

(5 of 9) [CRLJA-112/1994]

were also working under the same contractor, 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 of the contractor, the prosecutrix has falsely

implicated the accused-appellants in this case.

3.1 Learned counsel further submits that even if the

version of the prosecutrix is to be believed, then also,

by no stretch of imagination, can it be presumed that

while the prosecutrix was dragged out of her hut by

the accused-appellants, her companions would not

awaken, 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 found the 18/19 years; such

(6 of 9) [CRLJA-112/1994]

inconsistency, makes 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 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.

                                    (7 of 9)                    [CRLJA-112/1994]



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 (accused-

appellants) of the crime in question, more particularly,

subjecting a young girl of that age, to the gruesome

offence of rape, were 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 contractor and

the present accused-appellants, was set at naught by

(8 of 9) [CRLJA-112/1994]

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 very fact of the prosecutrix residing in a

single hutment with Hanja Ram, Nana Ram, Shanti Lal

and Laxmi, casts a serious doubt upon the initiation of

the allegation, where it is alleged the prosecutrix was

taken away from the hutment by forcefully dragging

her, without any hue and cry having been raised by the

prosecutrix, despite presence of the other hutment

dwellers. The dragging incident does not find

corroboration in the medical evidence also. The FSL

Report (Ex.P.10) also did not indicate detection of

semen.

6. This Court also finds that in case, any such fact

which is a missing link, then the same would certainly

point towards a consensual relationship between the

prosecutrix and the accused-appellants. The

inconsistency in the age of the prosecutrix, as pointed

out by the learned counsel for the appellants, also

creates a shadow of doubt in the narration of events,

particularly the single hutment and the contradictions

amongst the testimony of inhabitants of the hutment.

7. This Court is also conscious of the fact that two

of the essential witnesses, namely, Laxmi and Shanti

Lal, who were present in the hutment, were not

examined before the learned trial court; and the

crucial witness PW-6 Nana Lal turned hostile. The very

(9 of 9) [CRLJA-112/1994]

pertinent fact is that the victim herself has deposed

that in the morning she returned back voluntarily by

herself.

8. The aforesaid backdrop creates a deep suspicion

in the prosecution version, and thus, the benefit of

doubt has to go to the accused-appellant.

9. Resultantly, the present appeal is allowed.

Accordingly, the conviction of the appellants as

recorded vide the impugned judgment dated

08.02.1994 passed by the learned Additional Sessions

Judge, Udaipur in Sessions Case No.93/93 is quashed

and set aside. The appellants are acquitted of the

charges levelled against them. The appellants are on

bail; they need not surrender. Their 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.

SKant/-

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