Rajasthan High Court - Jodhpur
Khema vs State (2025:Rj-Jd:22754) on 12 May, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:22754]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 142/1995
Khema S/o Shri Kalia, B/c Adiwasi, R/o Village Loharia, PS
Loharia, District Banswara. (At present in Central Jail, Udaipur).
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Mridul Jain
For Respondent(s) : Mr. KS Kumpawat, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
REPORTABLE
12/05/2025
Instant criminal appeal has been filed by the appellant under
Section 374(2) Cr.P.C. against the judgment dated 14.02.1995
passed by learned District & Sessions Judge, Banswara, in
Sessions Case No.11/1993 by which the learned Judge convicted
and sentenced the appellant as under :
Offence Sentence Fine & default sentence
Sec. 376 IPC 7 years RI Rs.500/- & in default of payment,
undergo 1 month RI
Sec. 447 IPC -- Rs.300/- & in default of payment,
undergo 1 month RI
Both the sentences were ordered to run concurrently.
Brief facts of the case are that complainant gave an order
report at Police Station Loharia to the effect that the appellant had
committed rape with her. On this report, Police registered a case
against the accused appellant for offence under Sections 447 &
376 IPC and started investigation.
[2025:RJ-JD:22754] (2 of 11) [CRLA-142/1995]
On completion of investigation, the police filed challan
against the accused appellant for offence under Sections 323, 447
& 376 IPC. Thereafter, the charges of the case were framed
against the appellant, who denied the same and claimed trial.
During the course of trial, the prosecution examined as many
as 7 witnesses. Thereafter, statement of the appellant under
section 313 Cr.P.C. was recorded. In defence, no witness was
examined by the appellant.
Upon conclusion of the trial, the learned trial court vide
impugned judgment dated 14.02.1995 convicted and sentenced
the appellant as mentioned above.
Counsel for the appellant submits that the learned trial court
has committed a grave error of law in convicting the appellants
under Section 447 and 376 of IPC. Counsel submits that a false
case has been fabricated against the appellant. It is contended
that the FIR in this matter was lodged after a delay of three days
from the date of the incident, and the prosecution has failed to
furnish a satisfactory explanation for this delay. It is further
argued that the agricultural fields of the appellant and the
prosecutrix are adjacent, rendering them neighbours. Additionally,
it is alleged that the prosecutrix's husband, Hardariya, harbors
animosity towards the appellant. In fact, it is claimed that both
Hardariya and the prosecutrix assaulted the appellant, and that
the false case has been instituted. Moreover, there are significant
contradictions, omissions, and improvements in the statements of
the prosecution witnesses as well as in the First Information
Report. It is also noted that out of the two eyewitnesses to the
incident, only one, namely Ramesh, was examined, while the
[2025:RJ-JD:22754] (3 of 11) [CRLA-142/1995]
prosecution failed to examine the other eyewitness, Raman.
Further, the medical evidence does not corroborate the narrative
presented by the prosecution. Counsel contends that the
prosecutrix has concocted a completely false story to inflict harm
upon the appellant. The learned trial court, in passing the
impugned order of conviction, allegedly failed to properly evaluate
the evidence and other pertinent aspects of the case, thereby
erroneously convicting the appellant of the offences. Therefore, it
is submitted that the judgment of conviction is fundamentally
flawed and illegal, warranting its quashing and setting aside. The
appellant may be acquitted from the aforesaid offences. To
buttress his contentions, counsel has relied upon the judgment of
the Hon'ble Supreme Court in the case of Bibhishan Vs. State of
Maharashtra [2008(1) WLC (SC) Criminal 254] and the
judgments of this Court in the cases of Sanwaliya Vs. State of
Rajasthan [2008(2) Cr.L.R. (Raj.) 1071] , Mahesh Chand
Sharma Vs. State of Rajasthan [2009 (2) R.Cr.D. 51 (Raj.)].
On the other hand, the learned Public Prosecutor has
opposed the submissions made by the learned counsel for the
appellant and submitted that after proper consideration of the
evidence, the learned trial court rightly convicted the appellant for
the aforesaid offences. The impugned judgment is a detailed order
and required no interference from this Court.
Heard learned counsel for the parties and perused the
evidence of the prosecution as well as defence and the judgment
passed by the trial court regarding conviction of the accused-
appellant as well as the case law cited by the counsel for the
appellant.
[2025:RJ-JD:22754] (4 of 11) [CRLA-142/1995]
PW-2, Ramesh, an eyewitness, corroborated the occurrence
of a quarrel between the prosecutrix and the appellant, stating
that the appellant sustained an injury to his leg which was
bleeding. PW-3, the husband of the prosecutrix, also supported
this account, asserting that he and Ramesh arrived subsequently
on the scene and that he himself inflicted an axe wound on the
appellant's leg. These testimonies suggest a heated altercation
involving physical violence from both sides.
PW-6, the medical officer who examined the prosecutrix,
reported the presence of abrasions on her back and injuries on
other parts of her body. However, the medical report (Ex-P/4)
revealed that no seminal fluid or blood stains were found on her
clothing. This discrepancy between her account of being raped and
the medical findings significantly undermines her credibility, as the
absence of biological evidence pertinent to sexual assault casts
doubt on her allegations. Moreover, the prosecution failed to
produce an FSL (Forensic Science Laboratory) report, which could
have provided scientific validation of the sexual assault claim. It is
a well-established principle of law that "while a man may lie,
circumstances do not," and in this case, the scientific and medical
evidence should have corroborated the prosecutrix's testimony;
their absence raises a reasonable doubt regarding the veracity of
her version.
Under Section 313 of the Criminal Procedure Code, the
appellant has explicitly stated that a quarrel occurred between
him, the prosecutrix, and her husband. He admitted that the
prosecutrix struck him with a lathi and that her husband inflicted
an axe injury on his leg. Notably, the eye-witness, Ramesh and
[2025:RJ-JD:22754] (5 of 11) [CRLA-142/1995]
the appellant's medical report (Ex-P/5) corroborates his version of
events. This consistency between his testimony and medical
evidence significantly diminishes the strength of the prosecution's
case, which is primarily based on the prosecutrix's accusations.
Considering the totality of the evidence, several factors cast
serious doubt on the prosecution's case. The prosecutrix's
testimony lacks corroboration from scientific and medical
evidence, and the discrepancies between her account and the
medical report undermine her credibility. The non-production of
FSL reports further weaken the allegations. Additionally, the FIR
was lodged with a delay of three days without any satisfactory
explanation, which is often indicative of a fabricated or
exaggerated story. The inherent improbability of the prosecutrix's
version, combined with the consistent admissions of violence from
both sides and the corroborative medical evidence supporting the
appellant's account, suggest a likelihood that the case has been
falsely fabricated. It is plausible that the prosecutrix and her
husband may have lodged a false complaint to settle personal
scores or for ulterior motives. Therefore, in light of the entire
evidence and legal principles, the case against the appellant is not
conclusively established beyond a reasonable doubt, and the
evidence points towards the possibility of false implication.
Consequently, the benefit of doubt must be given to the accused,
and the case should be acquitted.
In the case of Radhu Vs. State of Madhya Pradesh
reported in (2007) 4 Cr.L.J. 4704, the Hon'ble Supreme Court
has observed :
[2025:RJ-JD:22754] (6 of 11) [CRLA-142/1995]
"5. It is now well settled that a finding of guilt in a case
of rape, can be based on the uncorroborated evidence
of the prosecutrix. The very nature of offence makes it
difficult to get direct corroborating evidence. The
evidence of the prosecutrix should not be rejected on
the basis of minor discrepancies and contradictions. If
the victim of rape states on oath that she was forcibly
subjected to sexual intercourse, her statement will
normally be accepted, even if it is uncorroborated,
unless the material on record requires drawing of an
inference that there was consent or that the entire
incident was improbable or imaginary. Even if there is
consent, the act will still be a 'rape', if the girl is under
16 years of age. It is also well settled that absence of
injuries on the private parts of the victim will not by
itself falsify the case of rape, nor construed as evidence
of consent. Similarly, the opinion of a doctor that there
was no evidence of any sexual intercourse or rape, may
not be sufficient to disbelieve the accusation of rape by
the victim. Bruises, abrasions and scratches on the
victim especially on the forearms, writs, face, breast,
thighs and back are indicative of struggle and will
support the allegation of sexual assault. The courts
should, at the same time, bear in mind that false
charges of rape are not uncommon. There have also
been rare instances where a parent has persuaded a
gullible or obedient daughter to make a false charge of
a rape either to take revenge or extort money or to get
rid of financial liability. Whether there was rape or not
would depend ultimately on the facts and
circumstances of each case."
In the case of Yogesh and Ors. Vs. State of Haryana
reported in AIR 2021 SC 1904 the Hon'ble Supreme Court found
that the prosecution's case relied heavily on circumstantial
[2025:RJ-JD:22754] (7 of 11) [CRLA-142/1995]
evidence and the testimony of witnesses. The court noted the lack
of conclusive evidence linking the appellants to the crime, such as
the absence of forensic evidence of sexual assault and unclear
circumstances. Citing the principles of circumstantial evidence
from Sharad Birdhichand Sarda v. State of Maharashtra, the court
concluded that the prosecution failed to prove the case beyond
reasonable doubt. The relevant para cited below:-
20) The evidence on record discloses that out of three
witnesses, who were stated to be the eye-witnesses,
two witnesses, viz, PW12 Rajiv and PW15 Neeraj turned
hostile and did not support the case of the prosecution.
Both these 10 witnesses are close relations of the victim
and there is nothing on record to indicate that they
were either put under any pressure or that there was
any element of suspicion. Both these witnesses were
categorical that the persons who kidnapped the victim
were not before the Court in the capacity as the
accused.
21) We are thus left with the testimony of PW10 Manoj,
the informant and the father of the victim. The reporting
made by this witness, based on which the crime was
registered neither shows that he was an eye-witness to
the occurrence nor does it disclose that the identity of
the accused who had kidnapped the victim was in any
way known at the stage when the occurrence took
place. The statement given by the witness in his cross-
examination further discloses that he was sitting inside
the house when the incident had occurred and that the
shouts of the children and other passers-by had
attracted his attention where after the witness came out
of the house. In the circumstances, it is extremely
difficult to accept PW10 to be an eye-witness to the
[2025:RJ-JD:22754] (8 of 11) [CRLA-142/1995]
occurrence. The observations made by the High Court
while placing reliance on his version, in our view, were
totally incorrect. Thus, all three witnesses who were
claimed to be the eye-witnesses to the occurrence and
on whose testimonies, reliance was placed by the
prosecution, are of no help.
22) We now turn to the other circumstances on record
to see whether circumstances on record by themselves
are sufficient to bring home the guilt of the accused.
23) The law on the point of circumstantial evidence
cases is very clear and as laid down by this Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116, the well settled principles are as
under:-
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. It may be
noted here that this Court indicated that the
circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this Court
in Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
[2025:RJ-JD:22754] (9 of 11) [CRLA-142/1995]
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
24) Certain salient features of the instant case are:-
(a) Though the post-mortem report discloses that the
victim was sexually assaulted, the FSL Report on record
does not establish any connection of the accused with
the sexual assault on the deceased victim.
(b) The dead body of the victim was found lying in an
open field.
(c) The record is again not clear as to when the present
appellants were arrested and how and in what manner
their disclosure statements led to the recovery of the
dead body.
25) There are of course circumstances like recovery of
clothing apparel as well as tiffin box etc. belonging to
the victim. However, such recoveries by themselves, in
the absence of any other material evidence on record
pointing towards the guilt of the accused, cannot be
termed sufficient to hold that the case was proved
beyond reasonable doubt. Not only those circumstances
are not conclusive in nature but they also do not form a
cogent and consistent chain so as to exclude every
other hypothesis except the guilt of the appellants."
Therefore, this Court opines that judiciary must exercise
prudence and discernment, particularly in cases involving serious
[2025:RJ-JD:22754] (10 of 11) [CRLA-142/1995]
allegations such as rape, recognizing that false accusations are not
uncommon. Such charges may be motivated by motives such as
revenge, extortion, or the desire to evade financial obligations.
Therefore, the determination of whether an act of rape has
occurred must be based on a thorough examination of the specific
facts and circumstances unique to each case. In light of this
perspective, and considering the inherent improbability of the
allegations presented, this Court is compelled to conclude that the
prosecution has failed to establish its case beyond a reasonable
doubt. The principles of justice and fairness necessitate that guilt
be established with unequivocal evidence, and in the absence of
such proof, the benefit of the doubt must be given to the accused.
Accordingly, the accused is entitled to be acquitted of the charges
under Section 376 IPC.
Based on the comprehensive examination of the facts,
circumstances, and the evidence available on record, this Court is
of the considered opinion that no case has been established to
warrant a conviction under Section 447 of the Indian Penal Code,
which pertains to criminal trespass. The evidence presented does
not substantiate the essential elements required to establish that
the accused unlawfully entered into or remained on the
defendant's property with criminal intent. Furthermore, the
circumstances do not demonstrate an intention to commit any
offence or to cause unlawful dispossession. In the absence of
concrete and convincing evidence, the presumption of innocence
must prevail. Consequently, the Court finds that the prosecution
has failed to prove the guilt of the accused beyond a reasonable
[2025:RJ-JD:22754] (11 of 11) [CRLA-142/1995]
doubt. Accordingly, the accused is entitled to be acquitted of the
charges under Section 447 IPC.
Resultantly, the present appeal is allowed. Accordingly, the
conviction of the appellant as recorded vide judgment dated
14.02.1995 passed by learned District & Sessions Judge,
Banswara, in Sessions Case No.11/1993 is quashed and set aside.
The appellant is acquitted of offence under Section 447, 376 IPC.
The appellant is on bail; he need not surrender. His bail bonds
stand discharged accordingly. Record of the learned court below
be sent back forthwith.
Keeping in view, however, the provisions of Section 437-A
Cr.P.C. the accused appellant is directed to forthwith furnish
personal bond in the sum of Rs.50,000/- and a surety bond in the
like amount before the learned trial court within a period of one
month, which shall be effective for a period of six months to the
effect that in the event of filing of Special Leave Petition against
the judgment or for grant of leave, the appellant, on receipt of
notice thereof, shall appear before Hon'ble Supreme Court.
Record of the trial court be went back forthwith.
(MANOJ KUMAR GARG),J
1-MS/-
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