1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Munshi Singh & ors. S.B.Cr. Appeal No.233 of 1998 Under Section 378 (i) (iii) of Cr.P.C. against the judgment dated 28.6.1996 passed by Additional District & Sessions Judge, Neem Ka Thana by which he acquitted the accused respondents under Sections 376, 354, 323 and 324 of IPC. DATE OF JUDGMENT ::: December 18, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. BK Sharma, Public Prosecutor for the State. Mr. SS Sunda for the accused respondents. BY THE COURT Challenge in this appeal is to the judgment dated 28th June, 1996, rendered by the Sessions Judge, Neem Ka Thana whereby the accused respondents were not found guilty and acquitted in the offences under Section 376, 354, 323 and 324 of IPC. 2. The prosecution story as unfolded by the prosecutrix in her written complaint Ex.D/3 and Ex.P/8 is as under:- That on 21st September, 1994, at 9.00 AM in the morning, the prosecutrix was digging grass in her field. It is alleged that the accused Munshi Singh suddenly came from the back and caught hold of her with an intention to commit rape. The accused tore her blouse, Ghaghra and Lugadi and bit her left chick. It is 2 further alleged that the accused attempted to commit rape upon her but some-how she managed to save her. On the written report Ex.D/3, the police lodged the FIR Ex.P/9 and commenced investigation. 3. During investigation, the Investigating Officer recorded the statements of the witnesses acquainted with the facts and circumstances of the case, took the written complaint Ex.P/8 on record, arrested the accused persons vide memo Ex.P/1A, P/2B got the prosecutrix and the accused persons medically examined and after usual investigation sent the accused respondents to the Court for trial. 4. The accused respondents were indicted for the charge under Sections 376, 354, 323 and 324 of IPC who did not plead guilty and claimed trial. The prosecution examined in all nine witnesses to prove its case. In their explanation under Section 313 of Cr.P.C, they claimed innocence. After the completion of trial, the accused respondents were not found guilty for the alleged charges and they were acquitted as indicated hereinabove. 5. Heard the learned Public Prosecutor appearing for the State, learned counsel for the accused respondents and perused the relevant material on record. 6. While reiterating the grounds as enumerated in the memo of appeal, the learned Public Prosecutor has contended that the learned trial Court has not properly appreciated the evidence of the prosecution witnesses and the medical report of PW/1 Dr. Om Prakash. The statement of the prosecutrix is sufficient to base the conviction of the respondents as there is no reason to disbelieve her testimony. The alleged 3 offences are proved beyond reasonable doubt from the evidence of the prosecution witnesses, as such, the impugned judgment may be set aside and the respondents should be convicted. 7. Per contra, the learned counsel for the accused respondents has canvassed that the First Information Report Ex.D/3 filed by the prosecutrix before S.H.O. Police Station Thoi reveals that only the accused Munshi Singh attempted to commit rape upon her. The prosecutrix did not name rest of the two respondents in her report but after five days of the occurrence, she gave another report Ex.P/8 to Superintendent of Police, Sikar stating therein that three accused persons Munshi Singh, Hajari Singh and Pappu Singh caught hold of her, bit her cheeks, tore her cloths, pressed her breasts and ravished her one after another in succession, as a result of which her Bangles broke and she became unconscious. Both these reports submitted by the prosecutrix are contradictory to each other, which renders the whole prosecution story doubtful and the statements of the prosecutrix are untrustworthy and unworthy of credence. The lower Court has critically analysed and properly appreciated the evidence of the prosecution witnesses at length and given an apt finding of acquittal, which requires no intervention. The learned counsel has further contended that the prosecution case is devoid of such material and trust-worthy evidence which may fasten the guilt upon the accused respondents, hence, the State appeal may be dismissed. 8. Having reflected over the submissions made at the bar and properly weighed the prosecution evidence, it is noticed that the prosecutrix in the First Information Report Ex.D/3, narrated the incident to this effect only that the accused Munshi Singh attempted to commit 4 rape upon her but some-how she managed to save herself. So far as the rest of the accused respondents Hajari Singh and Pappu Singh are concerned, they are said to have been standing away from the place of occurrence. But the report EX.P/8 which is found to have been submitted on 26th April, 1994 before the Superintendent of Police, Sikar, is altogether contrary to the facts of the earlier report Ex.D/3. This report is with regard to the offence of rape being committed by all the three accused persons Munshi Singh, Hajari Singh and Pappu Singh. It has been alleged that all the three accused ravished her forcibly one after another in succession and caused injuries on her cheeks and breast. Not only this, they tore her clothes also, she was wearing. PW/1 Dr. Om Prakash examined the prosecutrix on 21st September, 1994 and found the following injuries on her person:- (1) Abrasion “ “ shape like this on left with bruise cheek teeth mark clearly seen 3,2,1/1,2,3 ----------- 3,2,1 /1,2,3 Other teeth impression are diffused not so clear (2) Abrasion – 1/2”X1/4” on left side root of neck (3) Abrasion – 1/4”X1/4” left Elbow. 9. At the instance of Superintendent of Police Sikar the prosecutrix was again examined by PW/6 Dr. JR Tanwar on 27th September, 1994 who found on her person the following injuries:- (1) Interrupted Abrasions Teeth bite circular 2-1/2 cmX2-1/2cm -1cm wide with scab and peripheri healing at left cheek. (2) Abrasion with scab and peripheri healing at both nipples 2cmX2c. Cut and shaved. (3) Abrasion with peripheri healing 2cmX2cm at left thigh medially. 5 (4) Abrasion with scab at 5cmX3cm at right thigh medially. (5) Abrasion with scab 1cmX1cm at right scapular region. (6) Abrasion with scab 1cmX1cm left side chest posteriorly. 10. PW/2 Chhagan Lal and PW/5 Ladu Ram are the independent witnesses who are stated to have seen the occurrence. The witness PW/2 Chhagan Lal has stated that one accused had pressed the prosecutrix and other accused was committing rape. The rape was being committed by the accused Munshi Singh. The rest of the two accused persons ran away from the spot, whom he could not identify. PW/5 Ladu Ram has deposed that Munshi Singh was committing rape upon the prosecutrix, he and Chhagan reached on the spot and they found the clothes of prosecutrix torn and teeth bite on the cheeks. Before he reached, the accused persons had run away from there. In his cross examination, he deposed that he had seen the accused persons running from the distance of 100 steps. At another place, he deposed that when he reached, the prosecutrix was sitting in the field. Similarly, PW/2 Chhagan Lal in his cross examination deposed that they raised an alarm from the culvert and thereupon the accused Munshi Singh left the prosecutrix and ran away. In further cross examination, he stated that when he reached and came near the prosecutrix, the accused had already run away. Thus, the statements of prosecutrix as also of these two independent witnesses are found to be laden with contradictions in material particulars. The contradictions emerging in their statements are of such nature, which renders the whole prosecution case doubtful and their evidence is totally untrustworthy. The prosecutrix in the beginning came with the report Ex.D/3 before the police that only the accused Munshi Singh attempted to commit rape upon her and after six days of the incident, 6 she improved upon her earlier version and entangled not only Munshi Singh in the offence of commission of rape but rest of the accused Hajari Singh and Pappu Singh also, who were said to have been standing away from the place of occurrence in report Ex.D/3. Otherwise too, the statements of the prosecutrix did not stand corroborated by the independent witnesses PW/2 Chhagan Lal and PW/5 Ladu Ram at all. It appears from the perusal of the statements as if they had seen the accused Munshi Singh committing rape upon the prosecutrix but when I ruminate the whole statement, it is gathered that before these witnesses reached on the spot the accused had already ran away from there, so they cannot be categorized as eye- witnesses. Albeit, the accused in a rape case can be convicted on the sole testimony of the prosecutrix, if she is found to be reliable and trust-worthy. But in the instant appeal, the statements of the prosecutrix are not only contradictory to each other but she has made such an improvements in her written report Ex.P/8 upon the earlier version as narrated in Ex.D/3 that it makes the whole prosecution story totally fragile and her statements are unworthy of credence and unreliable. The statements of prosecutrix do not inspire any confidence. The learned trial court has critically analysed and properly appreciated the evidence of the prosecution witnesses and arrived at a just finding of acquittal which does not require any interference. The impugned judgment is cogent and well merited and it suffers from no infirmity. 11. In the ultimate analysis, the prosecution is found to have miserably failed to fasten the guilt upon the accused. I am in full unison with the finding of acquittal arrived at by the learned trial Court and the impugned judgment calls for no interference. 7 12. For these reasons the State appeal being bereft of merits stands dismissed. The accused respondents are on bail and their bail bonds also stand discharged. (MAHESH BHAGWATI)J. PCG 8 DECEMBER 2008 INDEX 15.12.2008 17.12.2008 19.12.2008 174-97 93-89 198-88 224-87 2333-98 9 S.B.CR.APPEAL NO.233/1998 STATE OF RAJ. VS. MUNSHI SINGH AND ORS. 18.12.2008 HON'BLE MR.JUSTICE MAHESH BHAGWATI Mr. BK Sharma, Public Prosecutor for the State. Mr. SS Sunda for the accused respondents. Judgment pronounced in open Court today. For these reasons the State appeal being bereft of merits stands dismissed. The accused respondents are on bail and their bail bonds also stand discharged. (see separate judgment). (MAHESH BHAGWATI)J. PCG