1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Shamsher @ Sunil Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1119/2005. Under Section 374(2) of the Code of Criminal Procedure. DATE OF ORDER: 22nd January, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Gajanand Yadav for the appellant. Mrs.Nirmala Sharma PP for the State. BY THE COURT: This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 8th November, 2005 in Sessions Case No.70/2005 (13/2005) passed by the learned Additional Sessions Judge (Fast Track) No.2, Jhunjhunu whereby the accused-appellant has been convicted and sentenced under section 376 IPC for 10 years rigorous imprisonment and a fine of Rs.1,000/-, in default of payment of fine to further undergo one month simple imprisonment and under section 450 IPC for 7 years rigorous imprisonment and a fine of Rs.100/-, in default of payment of fine to further undergo 15 days simple imprisonment. Briefly stated the facts of the present case are that a written report Ex.P-1 was lodged by PW-1, the prosecutrix (name with held) in the police station Surajgarh district Jhunjhunu on 2 10.10.2004 at 6.10 p.m. wherein it was stated that on 9.10.2004 at about 10-11 p.m. in the night when the prosecutrix was sleeping in her house, some unknown person came and tried to press her neck. He also threatened her and took away a sum of Rs.5,000/- kept in a box and thereafter she was undressed and rape was committed with her though she tried to catch-hold of accused by his hairs but could not catch him. It is also alleged that on hearing her hue and cry, villagers came there. Since she was undressed by the accused, villagers gave her clothes. The accused while leaving the place left one knob of radio. In the morning foot-prints were seen outside the house of the prosecutrix and the same were followed, they ended near the house of the accused Shamsher son of Sadhu Ram. On this report, FIR No.174/2004 under sections 376 and 382 IPC was registered and investigation commenced. During the course of investigation, 'lahanga' of the prosecutrix was seized by the police vide Ex.P-2. Formal FIR Ex.P-3 was registered. A site plan Ex.P-4 was made. The statement of the prosecutrix Ex.P-5 was recorded by the Magistrate. The prosecutrix was medically examined by PW-3 Dr. Smt. Sindhu Bhatta. The accused was arrested. Test identification parade was got done. After completion of investigation, charge- sheet was filed. Ultimately, the matter came up for trial before the learned Additional District & Sessions Judge (Fast Track) No.2, Jhunjhunu. A charge under section 376, 450 and 382 IPC was framed against the accused appellant on 2.3.2005. In support of its 3 case the prosecution examined as many as 16 witnesses and tendered several documents. After close of the evidence of the prosecution, the accused was examined under section 313 Cr.P.C. in which he stated that he was falsely implicated in the case. It is also stated that in fact he gave a sum of Rs.10,000/- as a loan to the prosecutrix before 10 months of the alleged incident and on making several requests by him, the loan amount was not repaid by the prosecutrix and a false report of committing rape was lodged in the police station. No evidence in defence was produced. The learned trial court after hearing final submissions convicted and sentenced the accused as indicated here-in-above. I have heard learned counsel for the accused-appellant as well as learned public prosecutor and carefully perused the material available on record. The learned trial court has recorded its finding on the basis of the statement of the prosecutrix that the accused committed rape with the prosecutrix on 9.10.2004 in the night while she was in her house situated in the 'dhani'. The learned trial court has further recorded its finding that the accused with the intention to commit rape entered the house and committed rape with the prosecutrix. In the present case, the points for consideration are: (i) whether the accused committed rape with the prosecutrix as alleged in the night of 9.10.2004 while the prosecutrix was in her house situated in her field; (ii) whether the accused entered the 4 house of the prosecutrix with the intention to commit rape. (iii) Whether the accused stated that he was residing in the same village and was known to the prosecutrix and her family members from before, lended money to the prosecutrix and on asking to return the same, falsely implicated in the case? The points framed are being examined below. POINT NOS.1 TO 3: Since point nos. 1 to 3 are inter-related to each other, they are being decided together. In the instant case, the story of the prosecution as per Ex.P-1, written report, is to the effect that some unknown person on 9.10.2004 entered the residential premises of the prosecutix, she was put under threat, her neck was also pressed and a sum of Rs.5,000/- was taken by the accused, thereafter rape was committed. In the statement of the prosecutrix as PW-1, she has stated that accused came to her house in the night at about 10-11 p.m. while she was sleeping. The accused caught hold of her neck by one hand and by another hand her mouth was shut. It is also stated that thereafter accused torn her clothes and committed rape with her. It is also stated that she tried to save herself but could not succeed. She has further stated that on the day of incident her sons were not there as they had gone out. In the morning on the basis of foot-prints which were followed by the villagers it was revealed that foot-prints reached up to the house of accused Shamsher. She has also stated that at the time when rape was 5 being committed with her, she told the accused that she wanted to ease herself but accused did not permit her. On the next day, a report was lodged in the police station as she waited for her sons to arrive. In the cross-examination, she has denied that she knew the accused before the incident. She has also denied that she has falsely implicated the accused in the case. She has also denied that any amount of loan was taken by her from the accused. She has stated that during test identification parade, she has identified the accused. The prosecutrix was 60 years of age at the time when the alleged incident had taken place. The son of the prosecutrix PW-10 is Pawan Kumar Sharma. He has stated that on 10.10.2004 when he returned to his house, his mother told her that rape was committed with her by some-body. Thereafter, report was lodged in the police station on 10.10.2004. In the cross- examination, he has stated that the accused is his neighbourer and was oftenly coming to the village. He has further stated that he knew the accused from his childhood. He has further stated that prior to lodging the FIR, it was not known that who was the accused. The prosecutrix was medically examined by PW-3 Dr. Dr. Smt. Sindhu Bhatta on 10.10.2004 who prepared sex assault report Ex.P-6. In her statement Dr. Smt. Sindhu Bhatta has stated that the prosecutrix was fully developed. She was habitual of sexual intercourse. No injury was found on the person of the prosecutrix. No injury was found on the private parts of the 6 prosecutrix. Vaginal swab was taken and sent for chemical examination. In the cross examination she has admitted that no sign of intercourse were found on the person of the prosecutrix. She has also stated that no discharge was also found on any part of the body of the prosecutrix. In other evidence, FSL report Ex.P- 19 states that on 'lahanga' semen was detected. Semen was not detected on vaginal swab. Test identification parade took place on 25.11.2004. PW-13 Mahaveer Prasad Gupta, Magistrate conducted the test identification parade. He has stated that six persons of the same height were mixed with the accused. The accused in jail was kept 'baparda'. The prosecutrix correctly identified the accused. It was asked from the prosecutrix for what purpose she came in jail to which she replied that she had come to identify the person who committed rape with her. He has also stated that he prepared the test identification memo. No cross examination could be done from this witness as the counsel for the accused was not present and accused did not cross examine the witness inspite of opportunity given to him. PW-2 Raju and his mother PW-6 Rukmani both have stated that on hearing hue and cry by the prosecutrix they reached at the spot. The prosecutrix was found naked and some clothes were given to her. At that time on asking as to what was the matter, the prosecutrix replied that rape was committed with her and the person who committed rape also took away a sum of Rs.5,000/-. PW-11 is Rajendra Singh constable who took the 7 sealed packet of samples to the FSL. PW-14 Dr. Girdhari Lal Marya had examined the accused and found the accused potent. He stated that investigation was handed over to him on 29.11.2004. He has also stated that during the course of investigation he recorded the statement of witnesses and sent the matter to the FSL, filed charge-sheet. No cross examination was done from this witness. The contention of the learned counsel has been that it is really a matter of great strange that a person who is residing near the house of the prosecutrix was never seen by her as stated by the prosecutrix in her statement. In the instant case, no recovery has been made. According to the learned counsel, the son of the prosecutrix has clearly admitted this fact in the cross examination that the accused was known to him from his child- hood as he was residing in his neighbour. It is contended that it is a false and concocted case in view of the medical evidence also as no sign of intercourse were present on the person of the prosecutrix and the FSL report states that semen could not be detected on vagina of the prosecutrix. On the other hand, learned public prosecutor contends that in the Indian society a lady would not attribute such an allegation on account of shear enmity. The prosecutrix has identified the accused in the test identification parade, therefore, the findings recorded by the learned trial court appears to be reasonable and proper and needs no interference by this court. 8 I have carefully considered the submissions made before me. It is to be seen that at the time of committing rape, the accused could not be identified. It further appears from the FIR and the statement of the prosecutrix that before committing rape accused was in the house and threatned the prosecutrix and thereafter a sum of Rs.5,000/- which were kept in a box were taken by the accused and thereafter rape was committed. The defence of the accused is that in fact he gave some loan to the prosecutrix and when request was made to repay the loan, this false complaint has been lodged. Though the accused has also put questions in the cross examination in this regard but the prosecutrix has denied the suggestions made in this regard. The accused has also stated in his statement under section 313 Cr.P.C. that he was falsely implicated in the case. A very important evidence that is of test identification parade. PW-13 Mahaveer Prasad Gupta, the Magistrate, who conducted the test identification parade has stated that the prosecutrix has correctly identified the accused. No cross examination from this witness has been done. Thus, in the absence of cross examination the identification of the accused by the prosecutrix becomes a relevant piece of evidence. The question here is that the accused was residing near the residence of the prosecutrix and as the son of the prosecutrix has stated that he knew the accused from his very 9 child-hood, then in the circumstances it becomes absolutely unbelievable that her mother did not see the accused at any point of time except before the alleged incident. In village normally the population is very less and particularly when the son of the prosecutrix says that from the very child-hood he knew the accused then in the above circumstances, though there has been no cross examination from the Magistrate who conducted the test identification parade by the accused but the possibility cannot be ruled out that the test identification parade was merely a formality. The Magistrate who conducted the test identification parade when came to depose before the court, the learned trial court in a cursory manner asked the accused as to whether he was prepared to cross examine or not the witness to which he denied. Thereafter cross examination was closed. It is also an important aspect of the matter that nobody could see the accused at the place of alleged incident and the villagers those who came at the spot only in the morning saw some foot-prints of a human being in front of the house of the prosecutrix. Those foot-prints were followed and as stated by the witnesses the foot-prints ended near the house of the accused but then foot prints were not lifted and same were not tallied with the foot-prints of the accused. Again, it is very important to note that as per the prosecution story when foot-prints were seen why they were not preserved and on the basis of alleged foot prints found near the house of the accused appellant, how it can be presumed that the same were of the accused. The 10 entire night nobody took care of the foot-prints and even in the morning when this matter came to the notice of the investigating officer that on the basis of foot-prints accused was named in the FIR, therefore, in the above circumstances of the case it was the boundand duty of the investigating agency to have taken care of the evidence of foot-prints because the allegation in the present case was of rape and identity of the accused was in question. Only on the basis the foot-prints which were seen before the house of the prosecutrix and on being followed were seen ending near the house of the accused, suspicion was raised against the accused. If this part of the evidence that foot-prints were seen is not considered of much significance in the circumstances that foot- prints were not lifted and the same were not tallied with the foot- prints of the accused then the evidence which remains against the accused is only to the effect that in the house of the prosecutrix she was raped and before she was raped, the accused took a sum of Rs.5,000/- from a box which was lying in the house of the prosecutrix. It is again an important aspect of the matter that no money has been recovered in the instant case. As regards test identification parade is concerned, it is suffice to say that it is only corroborative piece of evidence, particularly, in the facts and circumstances of the present case when family members of the prosecutrix knew the accused from before then in the evidence of the prosecutrix that she did not see the accused in village before rape was committed on her by the accused becomes doubtful. In 11 village normally the villagers know each other very well and the allegation that the accused having committed rape with the prosecutrix, then there was no occasion for the prosecutrix not to have disclosed the name of the accused at the time of incident when villagers came at the place of incident and asked reason why she was making hue and cry to which she replied that some unknown person committed rape with her. It is also stated by the prosecutrix that she tried to save herself but the accused torn her clothes and thereafter forcibly committed rape with her. She has also stated that she tried to catch-hold the accused but could not succeed. In the above circumstances, when rape as alleged by the prosecutrix was committed with her then there ought to be some injuries on the person of the prosecutrix. The doctor found that there was no injury on the person or on the private parts of the prosecutrix. The vaginal swab taken of the prosecutrix on examination gave negative report of semen. In the above circumstances, when there was no injury at all on the person or on private parts of the prosecutrix, then the story of rape as alleged by the prosecution becomes doubtful. It is correct that in the Indian society normally a woman would not attribute allegation of rape against a person who has not committed rape with her but in the present case the prosecutrix has stated that some unknown person committed rape with her and as regards the un-known person, he has been fixed in the case on the basis of foot-prints being found near the house of the prosecutrix which when followed 12 ended near the house of the accused. In my opinion, this is a very weak type of evidence to connect the accused with the serious and grave allegation of rape. Suspicion may, however, be grave but that cannot be made a basis for recording conviction. The evidence against the accused in the present case, in my opinion, is not inspiring confidence of the court to hold the accused guilty. The trial court acquitted the accused for the offence under section 382 IPC. If that is so then half of the story of the prosecution that some amount was looted first and thereafter rape was committed goes out of consideration and what-ever evidence remains on record is hear-say evidence of the villagers and the evidence of the prosecutrix wherein she stated that at the time of rape accused could not be identified by her. As discussed above, the accused was residing in the same village and was also known to the family members of the prosecutrix, then in such circumstances, in my opinion, it is not liable to be believed that the accused was never seen by the prosecutrix before the incident. If the accused was also a villager and was also known to the family members of the prosecutrix, then definitely the statement of the prosecutrix that she has identified the accused in the test identification parade, in my opinion, becomes irrelevant because if a person is known from before to a witness then the test identification parade conducted looses its importance. 13 After carefully considered the facts and circumstances of the entire case, I am of the opinion that the learned trial court has misread the evidence and recorded the guilt against the accused on the basis of suspicion that since the accused was identified by the prosecutrix in the test identification parade and she has stated before the court that the accused was responsible for the rape. In the facts and circumstances of the case, as discussed above, in my opinion, the prosecution has not been able to prove its case beyond doubt against the accused and in the absence of reliable evidence against him, it cannot be held that the accused has committed rape with the prosecutrix. I am also of the opinion that the accused was known from before to the family members of the prosecutrix and it cannot be believed that the accused was not seen by the prosecutrix in the village before the incident. Since no evidence has been led by the accused that a sum of Rs.5,000/- was given as loan to the prosecutrix then this part of the defence cannot stand proved. In view of the fore-going discussion, the points framed are answered accordingly. In view of the above discussion and findings recorded on the points framed, the appeal is liable to be allowed. The judgment of conviction and order of sentence awarded by the learned trial court against the accused appellant is liable to be set aside and the accused is liable to be acquitted from the charges 14 levelled against him. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 8th November, 2005 passed by the learned trial court is hereby set aside. The accused is acquitted of the charges framed against him. He is in jail. He be set at liberty if not required in any other case. (S.P. PATHAK),J.