1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT ************* S.B. CRIMINAL APPEAL NO. 447/1985 (Manohar Singh & Anr. vs. The State of Rajasthan) Date of Judgment: 30th of January, 2008 PRESENTS. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Sanjay Mehrishi, for the appellants. Mr. B.S. Chabba, Public Prosecutor. The accused-appellants had preferred this appeal seeking to challenge the judgment dated 30/09/85 passed by learned Sessions Judge, Bundi, in Sessions Case No. 122/84 whereby the accused- appellnats have been sentenced for the offences under Section 451 & 354 I.P.C. and awarded sentence for 6 months R.I. and a fine of Rs. 250 each, for both the aforesaid offences, in default of payment of fine, each of the accused were ordered to further undergo S.I. of 1 month. 2 2. The brief facts giving rise to this appeal are that a report came to be lodged on 26/09/84 by one Smt. Prasadi Bai wife of Shri Mahaveer at Police Station, Gaindoli, District Bundi. As per the report, on the night intervening 23-24/09/84 the prosecutrix and her husband were sleeping in the paul of their house. The husband of the prosecutrix is said to have been suffering from bristles in the mouth for the last four days. As the trolley of Shri Giraj Bhartiya, of his village, was going to Kota, Mahaveer also went in it at about 01.00 a.m. in the night to have medical treatment of his ailment. 3. Further, it is mentioned in the report that thereafter the prosecutrix had bolted the door of her house and slept in the paul. At about 02.00 a.m. in the night, the accused-appellants Manohar Singh & Kripa Shanker entered into the house of prosecutrix from the side of 'bada'. After crossing the tin-shade, the accused persons came to the 'Chauk'. Manohar Singh came and sat down on the chest of the prosecutrix and Kripa Shanker pressed her mouth. He also gave threat to the prosecutrix that in case she raises any cry, then 3 she would be done to death by a gun, which he was having with him. It is also stated in the report that the accused Manohar Singh tried to outrage the modesty of the prosecutrix and also to the remove her clothes. The prosecutrix tried to raise hue and cry but the accused Kripa Shanker had pressed her mouth which resulted in bruises on her lips and neck. However, the prosecutrix had ultimately got up and started weeping. 4. Thereafter, Smt. Guna wife of Shri Mohan, who was the neighbour had come to the house of the prosecutrix to find out as to what was happening there. Both the accused persons then opened the door and ran away to the jungle. The prosecutrix came on the way after opening the door of the paul and raised hue and cry. Consequently, several persons gathered before whom the prosecutrix narrated the story of the incident. It is mentioned in the report that Chhitar, who was the hali had seen the accused running away. The prosecutrix then went to the house of her mother- in-law. On the next day, the mother-in-law of the prosecutrix had sent Ramesh son of Chaturbhuj to Kota after giving him rupees 10 to call back the 4 husband of the prosecutrix. In the night at about 08.00 p.m. on 25/09/84 Ramesh returned with Mahaveer and prosecutrix then narrated the entire story to her husband. Thereafter, on the next date, a report was lodged in the instant case. 5. On the basis of the aforesaid report the police registered a case for the offences under Section 376/511, 354, 450 and 34 I.P.C. Thereafter, the investigation commenced and the prosecutrix was medically examined, the site plan was prepared and statements of the witnesses of the incident were recorded. The police then filed challan in the concerning court for the offences under Section 456 & 376/511 I.P.C. 6. The learned trial court thereafter committed the case to the court of Sessions. The learned trial court then framed charges against the accused- appellants, who denied the same and desired for trial. The prosecution in support of its case examined 7 witnesses and produced several documents. On the conclusion of the trial, the learned Sessions Judge, 5 Bundi, by the order impugned convicted and sentenced the accused-appellants for the offences aforementioned. 7. Taking into consideration the facts and circumstances, I have carefully gone through the material on record including the evidence of prosecution witnesses. I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant. A bare perusal of the impugned judgment passed by the learned trial court also goes to show that it had also arrived at a finding that there is inconsistency in the statements of the prosecution witnesses. It has also held that there are contradictions in the statement of prosecutrix Smt. Parsadi and that of her husband, Mahaveer. The learned court below has also held that there had been improvement in the statement of the prosecutrix Smt. Parsadi before the court than the one recorded earlier. 8. The First Information Report (Ex-P/2) in the instant case has been lodged only on 26.09.84. A 6 perusal of the Report goes to show that the prosecutrix had alleged about having sustained injuries at the hands of the accused persons at the time of incident when she tried to resist. But a perusal of the 'Police Karwai' appended to the said Report goes to show that there is no mention of any apparent injury having been sustained by the prosecutrix, particularly on her face. Indisputably, the incident had taken place on 23.09.85 and the report had been lodged on 26.09.85. There is no explanation from the side of the prosecution to justify the delay in lodging the report. Moreover, even when the husband of the prosecutrix had reached home on the second day, the report came to be lodged only on the third day of incident. There is no explanation whatsoever for further delay in lodging of the report, soon after the husband of the prosecutrix came to know about the incident on his arrival at the village. 9. As per the prosecution case, the independent witness, namely Smt. Guna (PW-6), a neighbour, was the first person to arrive at the place of incident after hearing the cry of the prosecutrix. She has deposed 7 that when she came to the site of occurrence and inquired from the prosecutrix as to why she had raised the cry, the prosecutrix did not give any reply to her. Ultimately, when the said witness did not support the prosecution story, she had been declared hostile. Similarly, another independent witness, namely Chhitar (PW-5) is said to have seen the accused persons from the back when they were running away. In his court statement, the said witness had also stated that the accused Manohar Singh had abused him. Taking into consideration the statement of Chhitar in its entirety, the same does not inspire confidence particularly looking to the statement given at the stage of investigation. Even the learned trial court had held that there is an improvement in the statement of Chhitar before it and the version given by him does not appear to be correct. In such view of the matter, the testimony of the prosecution witness Chhitar does not appear to be reliable. 10. So far as the prosecution version, as initiated by the prosecutrix Smt. Prasadi (PW-2), is doubtful in respect of the injuries sustained by her at the time of 8 incident, because it does not find support from the medical evidence on record. It is the case of the prosecution, in the First Information Report itself, that the prosecutrix had sustained injuries on the face, neck, hands, etc. But the said injuries are not corroborated by the statement of the Medical Jurist. In fact, it is in contradiction to the medical evidence on record and the statement of Dr. Trilok Chand Mahawar (PW-1), who had stated that there was no injury on the breast of the prosecutrix as alleged by her. Similarly, the statement of the prosecutrix that she sustained injuries on hands due to breaking of the bangles and on the back because she was thrown on the ground by the accused is falsified as no corroborative injury had been found by the Medical Jurist on the person of the prosecutrix. Similarly, the allegation made by the prosecutrix that her face was pressed and as a result of which she sustained injury number one is not supported by the medical evidence so much so that the Medical Jurist has stated that the said injury could not have been caused by the palm. 11. When the statements of the prosecutrix, Smt. 9 Parsadi (PW-2) and that of her husband Mahaveer (PW-4) are perused, it is clear that on the face of it there are material contradictions in them. An observation in this regard has also been made by the learned trial court that there are contradictions between the prosecutrix and her husband in respect of the time of reaching of the Police Station. Therefore, there are no similarities in the statements of the prosecution witnesses and there are material contradictions amongst the statements of the prosecutrix and her husband. 12. Now coming to the statement of the prosecutrix Smt. Parsadi (PW-2), there are not only false allegations with regard to injuries which are not at all corroborated by the medical evidence but a perusal of the same goes to show that the allegation with regard to tearing of blouse etc. are also incorrect and not proved by the evidence on record. As a matter of fact, the prosecutrix has contradicted herself on material particulars resulting into prosecution story being suspicious and untrustworthy. When the learned Magistrate had observed, more than once, in the 10 judgment impugned that there are infirmities in the evidence on record, he had erred in not giving benefit of doubt to the accused persons who deserve to be acquitted. 13. In a matter of present nature, it has been aptly observed by the High Court in the case of State of Rajasthan vs. Jawar Singh (2001 (2) R.C.C. 979), as under: “It may be stated here that charge for offence under Section 354 I.P.C. is one which is very easy to make and very difficult to rebut and when such a charge is made, it is necessary to see whether it is supported by independent evidence besides that of woman herself or is corroborated by her conduct and surrounding circumstances and is consistent with ordinary probabilities. Where solitary evidence of prosecutrix did not appear to be reliable, the accused is entitled to acquittal. Where new allegations have been levelled and overtacts were attributed to the accused at the trial which were not mentioned in the FIR, under such circumstances, the accused is entitled to the benefit of doubt.” 14. Therefore, in the present case, there is delay in lodging of the report; the independent witnesses have turned hostile and there are material 11 contradictions in the statement of the prosecution witnesses including in that of Smt. Parsadi (PW-2), who has also made improvements. Thus, the prosecution evidence does not appear to be reliable and in these circumstances, the finding recorded by the learned trial court is not correct and it has erred in appreciating the evidence. 15. For the aforesaid reasons, I find it difficult to accept the findings given by the learned trial court and it is wrongly held that any offence, as aforementioned, has been committed by the appellants. 16. In the result, the appeal is allowed. The impugned judgment dated 30.09.1985 is quashed and set aside. The accused-appellants are acquitted of all the charges levelled against them. They are on bail and their bail bonds stand discharged. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. Item no. S-10