[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- JUDGMENT CRIMINAL APPEAL No. 340 of 2005 BALKARAN SINGH V/S STATE Date of Judgment : 9.9.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. M.K. GARG & MR. NIRANJAN SINGH, for appellant Mr. K.R. Bishnoi, PP BY THE COURT (PER HON'BLE MR. JUSTICE A.M. KAPADIA): 1.The appellant ('the accused' for short) was charged and tried by the learned Special Judge, SC/ST Atrocities Cases, Hanumangarh in Sessions Case No.17 of 2002 for commission of the offences punishable under Sections 366, 376 of the Indian Penal Code ('IPC' for short) and under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Atrocities Act' for short) on the accusation that on 16.10.2001 at about 4 PM when Shilo d/o Pala Ram, aged about 15 years, who belongs to Scheduled Caste, went to the shop for purchasing household articles, he had forcibly kidnapped her and thereafter committed rape upon her without her will and wish. [2] 2.At the end of the trial, the accused was found guilty of the charge levelled against him therefore vide judgment and order dated 26.04.2005 he was convicted and sentenced as under: Offence u/s Sentence Fine In default 3(2)(v) SC/ST Act Life Imprisonment Rs. 1000 2 months' R.I. 376 IPC 10 years' R.I. Rs.500 1 month R.I. 366 IPC 7 years' R.I. Rs.500 1 month R.I. 3.The accused aggrieved by the judgment and order of conviction and sentence, has filed instant appeal with the aid of Section 374 of the Code of Criminal Procedure, 1973 ('the Code' for short). 4.Since the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal, as disclosed from the FIR and unfolded during the trial, are as under: 5.On 19.10.2001 at about 4.30 p.m., complainant Sahi Ram submitted a written report before Police Station Sangria wherein he stated that his brother is having two sons and two daughters and all are minor and Shilo @ [3] Sulochna d/o Pala Ram, aged about 15 years, went from the house on 16.10.2001 at about 4 p.m for purchasing household articles but didn’t return back. They, therefore, searched for her but could not find her and later on came to know that Balkaran Singh had taken Shilo alongwith him. On the basis of this report Ex.P.5, FIR No.594/2001 (Ex.P/6) was registered at Police Station, Sangria for the offence under section 363, 366 IPC. 6.During the course of investigation, Shilo was recovered on 12.01.2002 from Punjab, who was sent for medical examination and her statement was recorded and on the basis of her statement the investigating officer added offence under section 376 IPC. Accused was arrested on 12.01.2002 and after receipt of the medical and x-ray reports determining the age of the prosecutrix, chargesheet was filed against accused before the ACJM, Sangria. As the offences under Section 376 IPC and the Atrocities Act are exclusively triable by the Court of Sessions, the learned Addl. Chief Judicial Magistrate committed the case to the Court of Sessions, Hanumangarh. Since the prosecutrix belongs to Scheduled Caste, the case was transferred to Special Judge, SC/ST (Prevention of Atrocities) Cases Court, Hanumangarh. [4] 7.The learned Special Judge, SC/ST (Prevention of Atrocities) Cases Court, Hanumangarh (‘trial Court’, for short), to whom the case was made over for trial, framed charge against the accused for commission of the offences under Sections 366, 376 IPC and Section 3 (2) (v) of the Atrocities Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon the trial Court put him to trial in Special Case No.17 of 2002. 8. To prove the culpability of the accused, the prosecution has examined as many as 9 witnesses and relied upon their oral testimony. They are as under: PW NAME WITNESS OF WHAT REMARKS 1. Shishu Pal S.I. & I.O. Investigation 2. Hari Ram A.S.I. Investigation 3. Lal Chand Constable Malkhana Incharge 4. Bajrang Lal Constable Carrier 5. Dr. Naresh Garg Doctor 6. Shilo @ Sulochna Prosecutrix 7. Bhagirath Motbir 8. Sahi Ram Complainant FIR 9. Pala Ram Father of prosecutrix [5] 9.To establish the charge against the accused, the prosecution has also produced a number of documents and relied upon the contents of the same. 10.After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Code. In his further statement he denied the case of the prosecution and stated that in the village there is party politics and they were against the party of Kripal Godara, whose father had been the Sarpanch of Bolawali and as the complainant party is under the influence of Kripal Godara, he has been implicated in a false case whereas he is innocent. However, he has neither led any evidence nor did he examine any witness in support of his defence. 11.On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court held that the prosecutrix belongs to Scheduled Caste and she was forcibly kidnapped and raped by the accused against her wish and will, and therefore, the prosecution has been able to establish the charge levelled against him. The trial Court, therefore, convicted and sentenced the [6] accused for the said offences to which reference is made in earlier paragraph of this judgment, which has given rise to instant appeal at the instance of the accused. 12.Mr. M.K. Garg, learned Advocate for the accused, has contended that as per medical evidence and the statement of PW5 Dr. Naresh Garg, it is clear that at the relevant time the prosecutrix was of the age of 17 to 19 years and Dr. Naresh Garg has admitted in his cross examination that according to margin of two years she might be of 21 years. He further contended that the prosecutrix in her medical examination was found habitual of sexual intercourse and no injury was found on her private parts, therefore, looking to medical evidence she was not forcibly ravished by the accused but she was a consenting party. It is also highlighted by him from the statement of the prosecutrix PW6 Shilo, it is clear that she lived with accused for three months and while residing with the accused she used to do all household works and she cooked food for the accused so looking to her statement and medical evidence she was a consenting party, and therefore, offence under Sec.366 and 376 IPC is not made out. It is also pointed out by the learned counsel that if the offence under Sec.366 and 376 IPC is not made out then in that case offence under the [7] Atrocities Act is also not made out. Therefore, according to the learned counsel, impugned judgment and order of conviction and sentence recorded against the accused is against the evidence on record and the trial Court has not appreciated the evidence in its true perspective, therefore, same deserves to be quashed and set aside and by allowing the appeal and thereby acquitting the accused of the offence with which he was charged. 13.Per contra, Mr. K.R. Bishnoi, learned P.P. for the respondent State of Rajasthan, has supported the impugned judgment and order. According to him, no illegality or infirmity is committed by the trial Court in passing the impugned judgment and order of conviction and sentence. He, therefore, urged to dismiss the appeal. 14.We have considered the submissions advanced by the learned counsel for the parties. We have also perused the impugned judgment and order and we have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 15.At the outset, for deciding the accusation against the [8] accused, it is pertinent to first re-appreciate the evidence of PW5 Dr. Naresh Garg, who has examined the prosecutrix. He has inter-alia testified that on 12.01.2002, he was posted as Medical Officer Incharge Community Health Centre, Sangria and that day on the requisition of police, he examined prosecutrix Sulochana @ Shilo D/o Pala Ram Nayak, aged 15 years, resident of Bolawali in respect of rape committed on her. According to the doctor, the examination was conducted with consent of Sulochana in the presence of Nurse Kamlesh. He stated that the mark of identification was a scar, which was an old injury on the middle of her right leg of the size 1’ x ¼’, the height of prosecutrix was 5 ft. 1 inch and her weight was 45 kgs, who had 28 teeth and her breast and areola were developed. The doctor found no hair in the armpit of prosecutrix and it was shaved, her pubic hair were also shaved and the prosecutrix had her menstruation cycle on 25.12.2001. He further testified that health of the prosecutrix was normal and no mark of injury was there either on her body or on her vagina nor blood was coming from her vagina and two fingers could easily be inserted in it. According to doctor her hymen was old broken and uterus was of normal size and there were no marks of discharge on her pubic genital perineum region. He stated that a separate slide was prepared of [9] vaginal swab and it was sent for examination in sealed condition and the samples of blood and spit were also sent for examination. In the opinion of doctor, prosecutor Sulochana was habitual of sexual intercourse and according to him x-rays of joints of elbow, wrist and hips were taken for determination of her age and as per x-ray report, age of Sulochana was found to be 17 to 19 years. He has prepared Report Ex. P/12 in his writing and has admitted portion ‘A’ to ‘B’ which bears his signature. X-ray report Ex.P/12 also bears his signature on portion ‘A’ to ‘B’. He has further testified that on the same day he also examined the accused whose age was 22 years. In cross examination, this witness has admitted that he had opined about the age of the prosecutrix to be 17 to 19 years and there may be variation of two years in it either side as such the age of the prosecutrix might be 21 years. He further testified that he mentioned in column 5, 6 and 16 of Ex. P/12 that auxiliary and pubic hair of the prosecutrix were shaved and that might have been shaved two or three days before the examination or might have been shaved four days before also. According to him, the prosecutrix might have indulged in sexual intercourse many times for some months and therefore two fingers could be easily inserted in her vagina, else it was not possible to insert two fingers. He [10] admitted that he was not a Radiologist and that for giving opinion on x-ray only Radiologist is the expert one. He also testified that he had given report of radiological examination for age in Ex. P/13 and before he had not sought opinion of a Radiologist. 16.On re-appreciation of the evidence of PW5 Dr. Naresh Garg and medical reports in respect of age of the prosecutrix, it is crystal clear that she was above 17 years of age at the relevant time as according him on the basis of x-ray report, her age was 17 to 19 years and there may be variance in age of two years upwards also. In any case, she was above 18 years. 17.Now having held that the prosecutrix was above 18 years of age, now the next question is whether she was forcibly kidnapped and ravished by the accused. In this connection, it would be relevant to notice the oral testimony of prosecutrix herself who has been produced as PW6. She has inter-alia testified that about one and a half year back, she was in field from where her mother had sent her to house for preparing food and in the way accused Balkaran Singh met her who told that her Grandmother was at his house so she went with him but thereafter she found that accused would cheat her so she [11] started to return back but the accused threatened her that he would kill her as such she being afraid of him went with him. She further testified that the accused took her to Sangria passing through fields and thereafter boarded her in a bus. In the way, accused gave her tea and on drinking it she became just like unconscious and she didn’t know where she went thereafter and after many days she came to know that she was brought to Malot where accused Balkaran Singh kept her in a room, which he used to keep locked and there he did wrong acts with her by picking her legs and inserting his penis into her vagina. He used to do so twice in night and kept on doing so till she was kept there on the point of knife. She stated that when she was being taken to some other place then at the bus stand, police caught them, who after taking them to the police station sent her with family members and kept accused Balkaran Singh there at the police station. She further testified that her statements were recorded in the Court, where she narrated the incident and stated that she was kept at Malot for 3 months and that she was medically examined. 18.The prosecutrix in her Cross Examination has testified that her statements were recorded by the police 3-4 days after she was caught. She pleaded ignorance about the [12] Police statement Ex.D/1 and Ex.D/2 not containing that accused told her that her Grandmother was at his house which she stated but why the police and Magistrate didn’t write. She stated that she knew that accused would cheat her and this was said by her while recording statements Ex.D/1 and EX.D/2 but why the police and Magistrate not written this she didn’t know. She further stated that she had told about offering tea by the accused and her drinking the tea in journey and thereafter becoming unconscious, and knowing it after so many days that she was in Malot, which all things were stated by her, but why they were not written in Ex.D/1 and Ex.D/2, she didn't know. She further testified that her statement before the magistrate was recorded after 10 days of recording of the police statement. She denied that her younger sister Suman was in the field of Gurdev Singh which was written in Ex.D/1 at portion ‘A’ to ‘B’ and stated that she had not stated so to the police. She also testified that she didn't know that at what time she came from field but stated that it was evening and the sun was very high and it was a summer month. She admitted that she went with the accused which was stated in Ex.D/1 and Ex.D/2. She stated that in her police statement Ex.D/1 at portion ‘C’ to ‘D’ is wrongly written that she went behind the accused whereas she stated that she [13] went with the accused. She also denied portion ‘A’ to ‘B’ of statement Ex.D/2 saying that this was wrongly written by the Magistrate as she didn’t say so. She further testified that the place where the accused met her in the village the house of Godara was there and stated that she didn’t know that it was the house of Kripal Singh Godara. She further stated that neither she knew where the house of Kripal Singh Godara situate and it is also not known to her whether Kripal Singh Godara is of her village or not. She further testified that she didn’t know that the son of Kripal Singh Godara had come with her in the Court and said that Randheer had come with him but she didn’t know whether he was Godara or not but he is Bishnoi by caste. In the next breath she stated that it is correct that he is Bishnoi Godara. She further stated that she didn’t know whether Balkaran Singh and Kripal Singh have good relations or not and stated that in the villages there is always politics of elections. She didn’t know that due to election politics, Kripal Singh and Balkaran Singh have no good relation. The place where Balkaran Singh met her in the village there are houses of Nayaks near the houses of Godaras and on the other side also there are houses of Nayaks and house of one Ram Pratap Nayak is also there and one house of Magla Ram is there but she didn’t know the names of Godaras. She denied the suggestion that [14] she was not mentioning the names of Godaras intentionally. She further stated that at the time when Balkaran Singh met her and she went with him, no person of the village was present there. She stated that their village is quite big and she didn’t know what its population is. She stated that she didn’t know that the way about which she stated to be taken through by Balkaran Singh was passing through fields and whose fields were there she didn’t know. According to her, no farmer was working in the fields which were near the village, however, in the fields which were beyond the village farmers were working in the fields but due to fear she didn’t told anything to them. She was taken to Railway Station in Sangriya and thereafter to Bus Stand from where they boarded the bus. The Railway Station is in the middle of Sangria and they had walked on foot all the way about 2-3 kms in the city and there was no police at the Station at that time. She didn’t know whether the Police Station or the office of Dy. SP Office was near the railway station. There were not many people in the city but only few people were coming and going and at the time when we went all the houses were shut and the shops were closed. The sun had set and its light was not there. There was only the one bus on the bus stand. She didn’t know whether there was any hotel nearby the bus [15] stand or not. She also not knew whether there were shops of mechanic or not. She didn’t remember whether the bus in which she was traveling reached Malot without any stop or she was boarded down from the bus in the way and after halt another bus was taken. She stated that she inform the police about giving tea to her for drinking but why it is not written in Ex.D/1 she didn’t know. The portion in Ex.D/1 “Mujhe --- Le Gaya”, was not told by her to the police but how it was written she didn’t know. She was not given tea to drink at Malot Mandi but it was given in the way how it is written at portion G to H she didn’t know. 19.She further stated that after getting off from the bus, they walked and reached the room and she didn’t saw any hotel at Malot bus stand. The bus in which they travelled was private, whether it was of Rajasthan Roadways or Punjab Roadways she didn’t know. In the route many passengers got down from the bus but where they got down she didn’t know. Dabwali falls in the route or not she didn’t know. Whether the bus stopped at Dabwali she didn’t know. The bus stand where the bus stopped was small and she didn’t know whether any big city came in the route or not. The room in which she was staying in Malot was not near Danamandi, it was far but [16] how far it was she was not able to state as she is not literate and she told the police that the room was far from Danamandi but if police has written it near, she didn’t know. What was the rent of the room she didn’t know because the rent was paid by the accused. Whether this room was in the house of Bittu, she didn’t know. She told the police about room. The police caught them while accused was taking her on the way. The police didn’t ask her regarding the room and if police had asked her about it then she would have informed about it. 20.Prosecutorix denied the suggestion that infront of the room wherein she was staying there was Bittu's shop and she used to go to that shop for purchasing. She also denied that at the time of leaving she had taken clothes, bangles, lipsticks etc. with her. She also denied that they daily used to go for walking in Malot and stated that it is wrong to say that they got their photograph snapped which was kept by the police. She has testified that a latrine was constructed outside the room and she used to go to the latrine outside that room to ease herself. She admitted that she used to cook food in the room on stove. She denied the suggestion that the room had two gates out of which one was opening inside the house rather it was stated that the room had only one gate [17] which was opening towards the road. There were houses near the room which were at some distance. She denied the suggestion that the house was not far but was in thickly populated area. She stated that Balkaran Singh had brought her a knife for cutting vegetables by which she used to cut vegetables. The accused used to do labour work on daily basis, but what work he was doing she didn’t know. He used to go in the morning and would return in the evening after doing labour work. She remained for 3 months in Malot and in those 3 months, the accused daily went for labour in the morning and used to come in the evening. She admitted that when the accused had gone labour she never knocked at the door nor raised shouts because the accused before leaving used to threatened her. The accused used to cohabit with her twice in night. She didn’t know whether the accused enjoyed it first or she. She stated that while cohabiting water discharged but she could not say whether the accused cohabited with her using condom or not. The water which was discharged in her ovary later on came out after some time for quite some time but in it her discharge was also there she could not say. She denied the suggestion that she herself cohabited with accused putting her on him. The accused cohabited with her for a period of three months but she did not conceive because [18] the accused used to give her pills. She did not remember when she used to take pill but she used to swallow it when given by the accused. She didn’t know for what purpose the tablet was, may be for preventing pregnancy, she didn’t know. 21.The prosecutrix in her cross examination further testified that she showed her injuries to the police. She stated that she received injuries on her leg and hand and those were also shown to the doctor. She denied the suggestion that she did not show the injuries to police and the doctor and was making false statement regarding receiving injuries. She further stated that she used to take food sometimes when the accused would come after doing labour work or sometimes earlier to it