1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Khushala Ram vs. State of Rajasthan D.B.Criminal Appeal No.802/2003 against the judgment dated 23.5.2003 passed by Additional Sessions Judge (fast Track), Jodhpur in Sessions Case No.129/2002. Date of Judgment :: 2nd April, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Varun Gupta, for the appellant. Mr. Anil Upadhyay, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Accused appellant Khushala Ram is sentenced, for life term with a fine of Rs.1000/- and further to undergo one month's imprisonment in event of failure to pay the fine, on being convicted for an offence punishable under Section 376(2)(f) Indian Penal Code under the judgment dated 23.5.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur. 2 As per prosecution, PW-1 Rajuram on 5.10.2002 at 09.00 AM submitted a written report to Station House Officer, Police Station Mathania with assertion that his daughter Lali aged 10 years at about 09:00 AM of the last day went to Ratranada pasture to graze the goats. His wife was all alone at home. One Jetharam son of Tulchharam, by caste Jat, resident of Bigoi at about 02:00 PM committed rape with her daughter Lali in the fields of Shivji Purohit near Basni pasture. At about 03:00 PM goats came to the house but Lali was not with them, thus, his wife went for search of Lali and she was found in the fields of Aasuji Master. His wife then came to the village and informed about the incident to Magaram, Sugnaram, Kesuram, Heeraram, Multanaram, Suganaram, Ramuram, all by caste Jat. The victim Lali was then taken to the village and then was carried to hospital at Osian. She was then referred for treatment to M.G. Hospital, Jodhpur, wherefrom she was sent to Ummed Hospital for necessary surgery. The informant further stated that he received information regarding the incident at village Tinwari. He asserted that the rape was committed by Jetharam, as per information given by his wife and other residents of village. On basis of the information aforesaid a case was registered, investigation was made and the accused Khushala Ram was charge sheeted for an offence punishable under Section 376(2)(f) IPC. Charge was 3 also framed against Khushala Ram and on denial of the same he was tried. The prosecution supported its case with the aid of 27 witnesses (PW-1 to PW-27) and 48 documents (Ex.P/1 to Ex.P/48). The accused appellant while explaining the evidence available against him, stated that whatever said against him by the witnesses is wrong, he do not know Lali and the village concerned is highly populated by Jat community, thus, he has been falsely implicated in the case just to save Jetharam. Learned trial court, after considering the evidence available, convicted the appellant and sentenced for life term. The contention of counsel for the appellant while giving challenge to the conviction recorded and sentence awarded is that the instant one is a case of no evidence and the accused appellant is falsely implicated just to save Jetharam against whom specific allegation of committing rape was made in the first information report. It is also stated that on basis of the available evidence a reasonable doubt exists to hold the appellant guilty. We have considered the arguments advanced and also scrutinised the entire record. 4 In view of the statements of PW-9 Dr. B.C.Temani, we are having no doubt that a girl below the age of 12 years suffered with a sexual assault i.e. rape. PW-1 Rajuram is father of victim girl and he is the person who submitted a first information report with specific allegation regarding commission of rape by Jetharam. As per this witness, he referred name of Jetharam in Ex.P/1 on basis of information given by his wife. He further submitted that victim Lali told to his wife that features of the man committing rape were alike Jetharam. He also stated that he never said to the police that rape was committed by Khushala Ram but the police at its own found Khushala Ram as culprit of the offence committed. This witness also stated that he was not knowing Khushala Ram prior to the incident concerned. PW-5 Smt. Khetu is wife of PW-1 Rajuram and is mother of victim. As per this witness her daughter at the first instance named Jetharam and then said that a person having features like Jetharam committed rape with her. She also stated that in her statements as per provisions of Section 161 Cr.P.C. (Ex.D/2) name of Jetharam was given as culprit being told by her daughter. 5 PW-3 Aasuram, who accompanied PW-5 Smt. Khetu to bring the girl victim from the spot of occurrence, stated that Lali told her that she went to pasture with goats and two other girls Kesudi and Lachhi. An another girl Chhotki also joined them subsequently. A man wearing a black colour pant and a stripped shirt committed rape with her. As per this witness, Rajuram informed him that rape was committed by Jetharam son of Tulchharam. He also stated that Khetu too named Jetharam as culprit for committing the offence in question. This witness also said in his examination in chief that Jetharam was not seen by him in village from last 2-3 months. PW-4 Dedaram stated that on making certain inquiry from the persons working in nearby mines the factum of commission of rape by Khushala Ram came into knowledge. During cross examination this witness failed to name the persons from whom such inquiry was made. PW-6 Lali is the victim prosecutrix herself. As per this witness she told her mother that the person committed rape with her was looking like Jetharam and he may be Jetharam. She further stated that she was not knowing Jetharam but merely on basis of the details relating to the features given, her 6 mother speculated that Jetharam may be the culprit. This witness also identified the accused. However, in cross examination, she also stated that after getting released from hospital she was first taken to police station where the accused present in court was shown to him and then she saw him in jail. In re-examination she said that she went to jail directly from hospital. PW-11 Kesu is a minor girl of eight years and she stated that she was accompanying Lali in pasture where one person wearing black pant and shirt and also rings in ears asked her about hamlet of Laxmanji and also about one mines. PW-12 Lachhi is also a minor girl and her stand is also quite similar as of PW-11 Kesu. PW-14 Malaram did not support the prosecution case and, thus, he was declared hostile. However, in his statements he stated that on 4.10.2002 Khushala Ram met to him and he was looking quite normal. Khushala Ram was busy with his usual work and he also informed about carrying stone cubes ('khandas') from Ratranada. PW-15 Chainaram also not supported the prosecution story and, therefore, he too was declared hostile. As per this witness, Khushala Ram met him on 4.10.2002 and made certain quarries regarding 7 availability of construction material (sand). He also stated that Khushala Ram was looking quite normal. PW-21 Salagaram too was declared hostile as he also not supported the prosecution case. He stated that on 4.10.2002 Khushala Ram came to him in evening, he was working with a tractor owned by Nenu Khan. PW-22 Heeraram stated that Jetharam is in his relation and the fact regarding commission of rape by Jetharam Jat was told to him by mother of victim Lali. This witness also stated that a meeting took place wherein all persons belonging to Jat community were present. In that meeting too it was found that rape was committed by Jetharam. PW-23 Mahendra Kumar Dave proved the identification of accused appellant by victim Lali. This witness also stated that no person namely Jetharam was included in the team forming group required for identification parade. PW-24 Jetharam is quite an important witness as he is the person who was first named as accused in Ex.P/1. This witness stated that on 4.10.2002 he was at Bhuvneshwar (Orissa) being in employment in a factory. He also stated that Rajuram father of the victim Lali is in his brotherhood and belongs to the same caste. He also stated that at Bhuvneshwar he came 8 to know through a telephonic information that a false case for commission of rape was lodged against him. PW-26 Nenu Khan stated that accused Khushala Ram was in his employment and on 4.10.2002 he worked for him for entire day. He went with tractor at 10-11 AM and returned at about 05:00 PM. This witness was also declared hostile. PW-27 Mahavir Singh is the Investigating Officer and, therefore, he narrated all the steps taken during the course of investigation. As per this witness, Jetharam and the complainant both were residents of the same village and, therefore, looking to similarity in features the girl named Jetharam while detailing the incident to her mother. This witness also stated that after recording statements of witnesses during the course of investigation upto 7.10.2002 he came to know that rape was not committed by Jetharam but by Khushala Ram. On basis of the evidence discussed above, the trial court held the present appellant guilty for commission of an offence under Section 376(2)(f) IPC. Learned trial court while appreciating the evidence observed that mentioning of wrong name in first information report was quite obvious as mother of the victim is belonging to rural area and she failed to express herself adequately. 9 Learned counsel for the appellant stated that as a matter of fact a definite information was given in Ex.P/1 by naming the accused, his parentage, his caste and his place of residence and as such there was no confusion about identification of the person committing offence. It is also submitted that as per evidence available on record holding of a meeting of a specific caste to which Jetharam belong and under pressure of that the entire case was changed, is established. It is asserted that Khushala Ram was introduced with the case at quite a belated stage just to save Jetharam. We have considered the argument advanced. A bare reading of Ex.P/1 clearly shows that a definite allegation was made against Jetharam with all necessary details relating to his identification. The details given in Ex.P/1 are so cogent and definite that it nowhere mentions any doubt regarding culprit. In the first information report it is nowhere stated any person having any resemblance with Jetharam may have committed the offence. PW-1 Rajuram in his statements also stated that he never informed the police about commission of any offence by Khushala Ram. As per this witness he named Jetharam in Ex.P/1 on basis of the information given by his wife. 10 PW-5 Smt. Khetu also stated that her daughter named Jetharam as a culprit of the offence. Quite interestingly PW-3 Aasuram in his examination in chief stated that he did not saw Jetharam son of Tulchharam in village from last about 2-3 months. As a matter of fact there was no need to say anything about Jetharam during examination in chief. A perusal of Ex.P/1 and the statements of PW-1 Rajuram, PW-5 Smt. Khetu and PW-3 Aasuram creates a reasonable doubt with the prosecution case and also creates a reasonable faith in the defence that the present accused may had been introduced with the case just to save Jetharam. Learned Public Prosecutor urged that the victim girl identified the accused and as such there is no reason to disbelieve the prosecution case. True it is, as per PW-23 Mahendra Kumar Dave, the victim identified accused during identification parade but in totality of facts of the case i.e. of no consequence, specially looking to the fact that PW-6 Lali during cross examination stated that from hospital she was taken to police station where she saw the accused and then she was taken to jail where she identified the accused present in court. It is also pertinent to note that in the team 11 of identification parade Jetharam was not included. It can be said that Jetharam was a free person and, therefore, it was not possible to include in the team for identification parade. We are of the view that such eventuality is not applicable in the present case in view of the fact that Jetharam as a matter of fact was the person who was specifically accused for commission of offence under Ex.P/1. If he would have been included in the team concerned, the possibility for making a genuine probe could have been of higher level. PW-14 Malaram, PW-15 Chainaram, PW-26 Nenu Khan and PW-21 Salagaram though have been declared hostile, but from statements of these persons a common feature emerges out is that on 4.10.2002 all these persons met to accused Khushala Ram and he was in quite normal position. These persons also stated that he was engaged in his regular work. On total examination of evidence, we are convinced that instant one is a case where a reasonable doubt exists in believing the prosecution case. It is also relevant to note that ample evidence is available on record that after 4.10.2002 a meeting of the members of a specific community took place in the village concerned wherein certain decision relating to the incident in question were taken. We are of the view that on basis of the available 12 evidence the prosecution failed to establish its case beyond reasonable doubt. Accordingly, this appeal is allowed. The conviction of the accused for the offence punishable under Section 376(2)(f) is quashed. Appellant Khushala Ram is acquitted from the charge aforesaid. Accordingly, the sentence awarded is also stands quashed. The judgment impugned dated 23.5.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No.129/2002 is also set aside. Appellant Khushala Ram son of Khinyaram be released from judicial custody forthwith, if not required in any other case. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.