Mahveer vs State
2022 Latest Caselaw 7843 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 482/1995

Mahveer

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Shreyash Ramdev for Mr. V.N. Kalla For Respondent(s) : Mr. Mukhtiyar Khan PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/05/2022 Pronounced on 25/05/2022

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

preferred against the judgment dated 29.09.1995 passed by

learned Additional District & Sessions Judge, Churu ('trial court')

in Sessions Case No.89/1993, whereby the accused-appellant was

convicted for the offence under Section 376(2)(G) of the IPC and

sentenced to undergo ten years rigorous imprisonment and a fine

of Rs.100/-, in default of payment of which, he was to undergo

further fifteen days rigorous imprisonment.

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

03.07.1993, one Gulab (complainant) lodged a verbal report

before the Police Station Sardarshahar against the present

accused-appellant-Mahaveer, alongwith two others namely, Debu

and Ganesh, to the effect that on 02.07.1993 in the morning,

while he went to his field, situated within the boundary of

Naharsara, his daughter (aged 13 years on that date) and his

(2 of 16) [CRLA-482/1995]

brother's (Mamraj) daughter (aged 11 years on that date)

alongwith one child Krishan also came to the field; in the

afternoon on the same day, he told them to go back home and

they all went accordingly; while the complainant stayed there to

look after the other side of the field.

2.1 As per the report, while he was returning from the field,

while crossing Naharsara Village at about 06:30 p.m. on

02.07.1993 itself, he saw the accused persons, coming bare feet,

from the opposite side, and at that time, one Imarta was also

accompanying the accused persons; the complainant tried to talk

to them, but the accused persons did not respond. It was further

reported that on the same day, after sunset, when he reached the

village, he heard the hue and cries coming from his and his

brother (Mamraj's) house. Upon being asked by the complainant,

he was told that the accused, namely, Mahaveer, Debu and

Ganesh, subjected both the prosecutrix to forcible sexual

intercourse; at that time, the apparels of prosecutrix were stained

with blood; the same narration of the incident in question was

reiterated by son (Krishan) of Mamraj (brother of the

complainant).

2.2 However, since there was no conveyance facility available at

the village in the night, therefore, the aforementioned report was

submitted before the police station on the next day (03.07.1993)

of the incident alleged to have occurred on 02.07.1993.

2.3 On the basis of the aforementioned report, a case under

Section 376 IPC was registered at Police Station, Sardarshahar

and the investigation commenced; after investigation, charge-

sheet for the said offence was filed against the accused, namely,

Mahaveer (present accused-appellant) and Debu before the

(3 of 16) [CRLA-482/1995]

learned Munsiff & Judicial Magistrate, Sardarshahar; against

accused Ganesh, looking into his juvenility, a separate charge-

sheet against him for the aforementioned offence was submitted

as per the provisions of the Juvenile Justice Act.

2.4 However, owing to the nature of the alleged offence under

Section 376 IPC, the learned Magistrate committed the case for

trial to the learned Sessions Court, qua accused-Mahaveer and

Debu, from where the case was transferred to the learned

Additional District & Sessions Judge, Churu ('trial court') for the

necessary trial and adjudication.

2.5 The accused persons denied the charges, and claimed trial.

After conclusion of the trial, the learned trial court, vide the

impugned judgment dated 29.09.1995, though acquitted accused-

Debu @ Deba of the offence under Section 376 IPC while

extending him the benefit of doubt, but the present accused-

appellant Mahaveer was convicted for the offence under Section

376(2)(G) IPC, and sentenced as above.

3. Learned counsel for the accused-appellant, at the outset

itself, tried to strike at the substratum of the prosecution case,

while submitting that the prosecution case is based on surmises,

conjectures and assumptions, which is apparent on the face of the

record, to the effect that the necessary identification of the

accused was not made on the spot, nor the prosecution witnesses

were known to the accused-appellant prior to the alleged incident

in question, and nor such occasion for having acquaintances ever

arose. As per learned counsel, on that count alone, even if it is

assumed that the alleged incident of forcible sexual intercourse

with both the prosecutrix had occurred, no role can be attributed

to the accused-appellant; this is more so when there is no

(4 of 16) [CRLA-482/1995]

incriminating evidence has been placed on record by the

prosecution before the learned trial court. Thus, as per learned

counsel, the present case is clearly fabricated as a case of gang

rape, so as to make wrongful and false implication of the accused-

appellant.

3.1 Learned counsel further submitted that the factum of false

implication of the accused-appellant in the present case is also

substantiated from the fact on record which indicates that the

identification of the accused-appellant on the spot was clearly

absent, and thereafter, when in the village, at the house of the

accused-appellant, he was not present there, a wrongful and false

presumption has been drawn that the accused-appellant and

others must have subjected both the prosecutrix to the forcible

sexual intercourse; the same, as per learned counsel, also strikes

at the very root of the prosecution case.

3.2 As per learned counsel, such surmises, conjectures and

assumptions, if taken otherwise, the same would reflect that the

false implication of the accused-appellant in the present case was

arising out of animosity between the parties.

3.3 Learned counsel also harped upon the delay in lodging the

report, while submitting that the incident in question alleged to

have taken place on 02.07.1993, but the report in connection

therewith was lodged on 03.07.1993, which also makes it clear

that the report is nothing but a result of an afterthought, so as to

falsely implicate the present accused-appellant in this case.

3.4 Learned counsel further submitted that by no stretch of

imagination, it can be assumed that despite the prosecutrix

alleged to have been dragged for too much distance, as per the

(5 of 16) [CRLA-482/1995]

testimony of the witnesses, no injuries to her external body was

caused, her clothes were not torn.

3.5 Learned counsel harped upon the various inconsistencies and

discrepancies in the testimony of the prosecution witnesses, more

particularly the star witnesses (eye witnesses) i.e. both the

prosecutrix and child Krishan; this is more so when these

witnesses, amongst others, have made their deposition in such a

manner, which makes the prosecution case all the more doubtful.

As regards, the age of prosecutrix (complainant's daughter) is

concerned, the same, in the report, was reflected as 13 years, but

as per the testimony of PW-9 Maniram, she, at the relevant time,

was aged 16-17 years, which also casts a serious doubt upon the

case of the prosecution.

3.6 Learned counsel thus submitted that in the aforesaid

backdrop, it is clear that the prosecution had failed to prove its

case beyond reasonable doubt; however, the learned trial court

without due appreciation of evidence placed on record before it

and without taking into due consideration the overall facts and

circumstances of the case, convicted and sentenced the accused-

appellant vide the impugned judgment dated 29.09.1995, and

thus, the conviction of the accused-appellant is unsustainable in

the eye of law; more particularly, in view of the fact that accused-

Debu @ Deba, against whom the same set of allegations were

there, was acquitted of the alleged offence.

3.7 In support of his submissions, learned counsel placed

reliance on the judgment rendered by this Hon'ble Court in

Papuria Vs. State of Rajasthan, 1995(3) WLC 164, relevant

portion of which reads as under:

(6 of 16) [CRLA-482/1995]

"5. On a careful scrutiny of the evidence on record, I find considerable force in the submissions made. The prosecutrix was examined by P.W.I. Dr. Usha Sharma, the Doctor has stated that there was injury, the hymen is ruptured, there was some blood oozing. However, the Dr. has also deposed the vaginal smear does not disclose presence of semen and has stated that no definite opinion could be given about rape. She has stated that the injury appears due to blunt object and may be the blunt object could in the circumstances be errect penis. In cross- examination the Dr. has candidly admitted that such injury is also possible by fall on hard blunt object. The evidence of the Doctor does not therefore, disclose with any certainty that the prosecutrix was sexual ravished.

6. P.W. 3 is the prosecutrix. Though, she was 9 years old, she was administered oath. She was deposed that she was sexually assaulted by the accused. She has deposed the manner in which the assault was committed. She has, however, stated in the examination in chief that the accused agreed to pay her Rs. 2/- but did not pay. She has deposed to in report the matter to her mother and father. In her cross-examination, she has said that the accused was lying on her for about 2 hours. It has come in evidence that no other injury was found on the person of the prosecutrix. If she forcible thrown on the ground and ravished atleast some scratches and bruises would have appeared on her body. She has denied the suggestion that there was no rape.

7. Then P.W. 6 was examined who was supposed to be the eyewitness. However, he has turned hostile, his cross- examination does not indicate anything regarding what factually was seen by him. It will thus be seen that except for the statement of the prosecutrix that she was ravished by the accused, there is no other evidence of such assault. This statement is not corroborated. In the circumstances of this case, the only question, therefore, is whether it is legal permissible to maintain the conviction on uncorroborated testimony of the prosecutrix or whether the attending circumstances can explain on the hypothesis of fall while running away. It will also be material to

(7 of 16) [CRLA-482/1995]

consider the defence evidence in this regard. All the defence witnesses have deposed that the injury was caused due to fan and that such writing was executed before Panchayat by the father of the prosecutrix.

8. Taking into consideration the defence evidence, the document Ex.D-2 executed by the father of the prosecutrix, the cross-examination of the prosecutrix, I find it unsafe to maintain this conviction on uncorroborated testimony of the prosecutrix. I feel that in such circumstances, corroboration on material particulars to the testimony of the prosecutrix is a legal necessity. A conviction without such corroboration in the facts of this case is not permissible. In my opinion, the totality of evidence does admit two interpretations and the possibility of the prosecutrix having been injured due to fall while running away cannot be over-Rule d. When the defence evidence is also considered that appears to be reasonably possible. In such circumstances, the benefit of reasonable doubt should go to the accused.

9. The learned Judge while recording conviction has rejected the defence evidence. He has rejected the document Ex.D-2 as after thought on the ground that no cross-examination was conducted on this point in relation to the father of the prosecutrix or the prosecutrix herself, However, the brother of the prosecutrix was examined and in cross-examination was confronted with that document and has in his cross-examination admitted the execution of the document by the father. In such circumstances, the rejection of the document and other defence evidence by the learned Judge appears to be incorrect and illegal, defence evidence cannot be rejected on extraneous considerations. There is nothing in the cross-examination of these witnesses to discredit the testimony. In my opinion, it appears to be a case of subsequent compromise, there is also reasonable doubt regarding complicity of the accused and the fact regarding ravishing the prosecutrix. The possibility of her having sustained the injury due to fall cannot be over-Rule d. I am therefore of the opinion that the conviction of the accused is not legally sustainable. Hence, the appeal is

(8 of 16) [CRLA-482/1995]

allowed and the order of conviction is set aside. The accused-be set at liberty if not required in any other case.

3.8 Learned counsel placed reliance on the judgment rendered

by the Hon'ble Calcutta High Court in Sambhu Das Vs. The

State of West Bengal & Anr. (C.R.A. 750 of 2019, decided on

07.04.2022, relevant portion of which reads as under:

"10. In support of his contention, learned Advocate for the appellant refers to the following decisions of the Hon'ble Supreme Court:-

(i) Hem Raj vs. State of Haryana reported in (2014) 1 SCC (Cri) 820: It is held by the Hon'ble Supreme Court in this report that since the evidence of the prosecutrix is placed on a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence, a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection, and only after its conscience is satisfied about its creditworthiness, rely upon it. In paragraph 10 of the report the Hon'ble Supreme Court found that the Medical Officer who held medico legal examination of the victim and submitted report was not examined during trial. The Hon'ble Court held this is a serious lapse on the part of the prosecution. In the said report, prosecution was able to prove from medico legal report that hymen of the prosecutrix was torn. The FSL report suggested presence of human semen on the wearing apparel of the prosecutrix as well as on the underwear of the accused. However, it was difficult to infer from this that the prosecutrix was raped by the appellant. Moreover, there was no injury found on the prosecutrix. Under such circumstances and also considering the fact that the evidence of the prosecutrix is too infirm to deserve consideration, the appellant was acquitted. .... ....

vi) Radhu vs. State of Madhya Pradesh reported in (2008) 2 SCC (Cri) 207: In this decision, in the absence of medical report the Hon'ble Supreme Court was left with

(9 of 16) [CRLA-482/1995]

the sole testimony of the prosecutrix. However the evidence of the prosecutrix did not inspire confidence of the Hon'ble Supreme Court and the appellant was acquitted. .... .... ...

14. I have duly considered the submission made by the learned Advocates for the appellant and the state respondent. The learned Advocate for the appellant has raised a question as to how the defacto complainant could know the name, father's name and address of the appellant at the time of lodging complaint in the P.S. It is needless to say that in a case under Section 376 of the Indian Penal Code, the evidence of the prosecutrix is most vital. Conviction can be based on the sole testimony of the prosecutrix if her evidence is found to be trustworthy, believable, cogent, reliable and free from material contradictions. In other words, if the sole testimony of the prosecutrix inspires confidence of the court, no corroboration is required to record conviction in a case under Section 376 of the Indian Penal Code. It has consistently been held by the Apex Court that a victim in a case of rape is not an accomplice. On the contrary, she is at per with the injured witness. At the same time, considering the gravity of the offence the Hon'ble Supreme Court time and again echoed a voice of caution that the evidence of the prosecutrix is to be considered with great care and circumspection. Only when the evidence of the prosecutrix is found to be of "sterling quality", court can rely on her sole testimony to convict the accused. In a subsequent decision in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, reported in (2012) 8 SCC 21, the Hon'ble Supreme Court had the occasion to consider who can be said to be "sterling witnesses". It is observed and held as here under:-

22. "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness

(10 of 16) [CRLA-482/1995]

of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co- relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

16. The defacto complainant made a statement before the learned Magistrate on 7th January, 2012 where she stated that the accused took her inside the jungle on his lap, thus she was not dragged by the accused.

18. The prosecutrix was examined by the Medical Officer after 12 days of occurrence. She did not find any marks of

(11 of 16) [CRLA-482/1995]

violence in her private part or any portion of her body. Had it been a case of forcible rape where the prosecutrix tried her best to resist the accused, there is every possibility of having some kind of injury on different parts of her body. The medical officer did not find any injury in any part of the body of the prosecutrix.

19. Therefore, the evidence of the prosecutrix is not supported by the medical evidence and in such a case it would be highly risky to sustain conviction of the accused.

20. For the reasons stated above, this Court is of the view that the accused is entitled to get benefit of doubt."

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

the aforesaid submissions made on behalf of the accused-

appellants submitted that the learned trial court has, before

convicting the present accused-appellant, analyzed each and

every aspect of the present case, particularly, in view of the fact

that a heinous crime of gang rape has been committed in this

case, that too when the both the prosecutrix, at the relevant time,

were aged 13 years and 11 years respectively; thus, while

convicting the present accused-appellant, the learned trial court

has taken into due consideration the overall facts and

circumstances of the case and has also made due appreciation of

the evidence placed on record before it.

4.1 Learned Public Prosecutor further submitted that as per the

medical opinion, blood oozing was there in the vagina of the

prosecutrix (complainant's daughter), her hymen was torn, and

the like opinion; semen was detected on the apparels of the

accused-appellant.

4.2 Learned Public Prosecutor also submitted that there was no

inconsistency in the testimony of the prosecution witnesses, as the

same were clearly consistent, more particularly, as regards the

manner in which the alleged incident took place, the identification

(12 of 16) [CRLA-482/1995]

of the culprits of such crime, brutal act by the accused-appellant,

that too, with the girls aged 13 and 11 years.

4.3 As regards the arguments advanced on behalf of the

accused-appellant regarding delay in lodging the report, learned

Public Prosecutor submitted that though the alleged incident took

place on 02.07.1993, but on count non-availability of conveyance

facility in the night and in view of the distance of the

complainant's village from the concerned police station, it was not

possible for the complainant to lodge the report on the same day,

and therefore, the report was lodged on the very next date; thus,

in view of such circumstances, the argument of learned counsel

for the accused-appellant does not merit acceptance.

4.4 Learned Public Prosecutor also submitted that the learned

trial court, while convicting the accused-appellant vide the

impugned judgment, had already taken a very lenient view on the

question of quantum of sentence, thus, the conviction and

sentence of the accused-appellant, owing to the nature of charge

proved, deserves to be upheld by this Court.

5. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgment cited at the Bar.

6. This Court observes that so far as the forcible sexual

intercourse with both the prosecutrix at the hands of the present

accused-appellant and others, is concerned, the version of both

the prosecutrix and the child (Kishaniya @ Krishan), in regard to

the alleged incident in question, is clearly consistent, to the effect

that all the three persons, named the present accused-appellant

as culprit of the alleged crime; the factum of forcible intercourse is

further substantiated by the testimony of PW-12 Dr. Hari Om

Narayan, who stated that the blood was oozing from the genitals

(13 of 16) [CRLA-482/1995]

of the prosecutrix (daughter of the complainant) and her hymen

was also torn; as regards the prosecutrix (daughter of the

complainant's brother), the chemical analysis and medical

examination, coupled with the opinion of the medical board have

further fortified the factum of forcible sexual intercourse with her

as well.

6.1 The presence of human semen on the apparels of both the

prosecutrix as well as the accused-appellant, as per the chemical

analysis and examination, also strengthens for prosecution version

regarding commission of the alleged crime by the accused-

appellant.

7. This Court also observes that after the alleged incident

coming to the knowledge of the complainant, he immediately

rushed to the house of the accused-appellant, but the accused-

appellant was not present there. The said fact, as per the record,

clearly indicates that the complainant before rushing to the house

of the accused-appellant was in unequivocal terms informed that

the accused-appellant was the person, who committed the alleged

crime in question, otherwise, there was no question of the

complainant going to the house of the accused-appellant

immediately after coming to know about the alleged incident.

8. This Court also observes that though there are consistencies

in the testimonies of the prosecution witnesses, but the same are

too minor, and are quite obvious, owing to the nature of the

alleged incident in question, as also the fact that the testimonies

of some of the witnesses could be recorded after a long time, from

the date of the alleged incident in question. Thus, such minor

inconsistencies, that too quite obvious, in the ordinary course of

(14 of 16) [CRLA-482/1995]

the alleged incident in question, does not render any help to the

case of the accused-appellant.

8.1 This Court further observes that owing to the nature of

alleged crime in question, such minor inconsistencies are of no

significance, as both the prosecutrix and the child (Kishaniya @

Krishan) have put forth the same and consistent version about the

alleged incident and culpability of the present accused-appellant.

Though, the prosecutrix in her statement could not give any

specific details, as to whom the surrounding fields belonged, but it

is quite natural that looking to the age of the prosecutrix, she is

not expected to give such specific details, because as per the

record, she visited such field(s) only 2-3 times, prior to the

alleged incident in question. But it is matter of record that the

prosecutrix (daughter of the complainant) has clearly identified

the present accused-appellant, as the person who subjected her to

forcible sexual intercourse, and such identification cannot be

doubted, looking to the overall facts and circumstances of the case

and the evidence available on record.

9. As regards the argument advanced on behalf of the accused-

appellant pertaining to the delay in lodging the FIR in question,

this Court observes that looking to the dark hours, when the

incident in question was brought to the knowledge of the

complainant and the fact that the concerned police station was

located at a distance of about 27 kilometers from the

village/house of the complainant, the said argument is not

sustainable in the eye of law; this is more so, looking into the

heinous nature of the alleged incident in question, and the same

could, in the ordinary course, result into delayed FIR of the

incident.

(15 of 16) [CRLA-482/1995]

10. Apart from the aforesaid observations, this Court is also

conscious of the fact that at the time of the alleged incident in

question, the age of both the prosecutrix was 13 years and 11

years respectively. This Court is also conscious of the fact that

looking to the charge against accused-Debu @ Deba was not

proved beyond all reasonable doubts, he was acquitted by the

learned trial court vide the same impugned judgment dated

29.09.1995, but his acquittal was not honourable acquittal, as

such indulgence was granted by the learned trial court, while

extending the said accused the benefit of doubt. But since the

charges against the present accused-appellant Mahaveer have

been proved by the prosecution beyond all reasonable doubts, this

Court does not find any ground to be made out so as to extend

the present accused-appellant-Mahaveer, even the benefit of

doubt, more particularly looking to the age of the prosecutrix at

the time of the alleged incident and the heinous nature of the

alleged crime.

11. The judgments cited by learned counsel for the accused-

appellant do not render any assistance to the case of the present

accused-appellant.

12. In light of the aforesaid observations, this Court does not

find any legal infirmity in the well reasoned speaking judgment of

conviction dated 29.09.1995 passed by the learned trial court, so

as to warrant any interference.

13. Resultantly, the present appeal is dismissed. The appellant is

on bail, in pursuance of the order dated 12.01.1996 passed by this

Hon'ble Court in S.B. Criminal Misc. Bail Application No.503/1995.

His bail bonds and sureties are forfeited; he is directed to be taken

into custody forthwith and sent to the concerned Jail to undergo

(16 of 16) [CRLA-482/1995]

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.

SKant/-

Powered by TCPDF (www.tcpdf.org)