1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B.CRIMINAL APPEAL NO.72/1992 (State of Raj. Vs. Sher Singh) DATE OF JUDGMENT :- July 11th, 2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr B.K. Sharma, Public Prosecutor, for the State. Mr V.P.Bishnoi, for the respondent. BY THE COURT: The challenge in this appeal is to the impugned judgment dated 29th June, 1991 rendered by the learned Additional Sessions Judge, Kishangarh Distt. Alwar whereby the accused appellant Sher Singh has been acquitted in the offence under Section 376 readwith Section 511 of IPC. 2. The nub of the prosecution story as unfolded by PW/2 Ram Prasad S/o Shyolal is briefly stated thus: That on 2.04.1990 at about 6.00 in the morning, the prosecutrix PW/1 Mst. Ghanodi @ Dhanno went to her field to drop dung and also to answer the call of nature. It is alleged that when the prosecutrix was answering the call of nature, the accused Sher Singh suddenly came and caught hold of her. It is further alleged that he broke the draw- string of her Peticot, made her naked and in an attempt to commit rape upon her, made her to lie on the ground. When the accused was to ravish her, she shouted 2 and tried to get rid of him. Having heard the screams of Ghanodi calling “Bachao, Bachao”, the complainant Ram Prasad, Champa W/o Indraj, Jagmal and Surja S/o Chandariya reached there. They saw the accused Sher Singh lying upon Ghanodi and entangling her. On seeing them, the accused left Ghanodi and ran from the spot. The complainant Ram Prasad, PW/2 filed a private complaint Ex.P/1 in the Court of Additional Munsiff-cum- Judicial Magistrate, Kishangarh who sent the same under Section 156 (3) of Cr.P.C., to Police Station Mandwar Distt. Alwar for investigation. The police registered the F.I.R., Ex.P/4 in the offences under Sections 354, 323, 394 and 376/511 of IPC and commenced investigation. The Investigating Officer recorded the statements of witnesses under Section 161 of Cr.P.C. who were acquainted with the facts and circumstances of the case, prepared site-plan Ex.P/2, got the prosecutrix medically examined and after usual investigation, filed the charge- sheet against the accused. The proseuction has examined as many as 9 witnesses to prove its case. On completion of trial, the accused respondent was not found guilty and acquitted of the offence under Sections 376/511 IPC. 3. Heard the learned Public Prosecutor appearing for the State as also, the learned counsel for the accused respondent, considered the submissions made at the Bar and scanned the prosecution evidence as also the relevant material available on record. 3 4. The learned Public Prosecutor has contended that the learned trial Court has not properly appreciated the statements of the prosecutrix. In fact, there is no ground to disbelieve her statements. The evidence of the prosecutrix has been fully corroborated by other independent witnesses. Hence, the impugned judgment of the learned trial Court should be set aside and the accused -respondent should be convicted. 5. The accused was charged by the Court for the offence under Section 376 readwith 511 of IPC, but the prosecutrix PW/1 Dhano @ Ghanodi has depicted altogether a chequered version before the Court during trial. She has stated on oath that when she was answering the call of nature, the accused Sher Singh came from the back and embraced her. He broke the draw-string of her peticot and made her to lie flat on the ground. She has further stated that he untied his Dhoti and thereafter penetrated his penis into her vagina forcibly. She screamed and floundered but the accused gaged her mouth and forcibly ravished her. The accused is alleged to have extorted her pandle also from her neck but in the cross-examination, the prosecutrix has stated that the gold pandle later on was found lying there only. How did it fell, she did not know. She also did not know as to whether the golden pandle fell itself or the accused extorted it. PW/2, Ram Prasad, PW/3 4 Surja, PW/4 Champa and PW/5 Jagmal have all supported the case of the prosecution to that extent only that prosecutrix Ghanodi was found naked and the accused also was naked who had uptied his Dhoti. While PW/4 Champa has sated that the accused Sher Singh had penetrated her penis into the vagina of Ghanodi, PW/5, Jagmal has simply stated that Ghanodi was naked and her Lehanga was lying nearby and the accused Sher Singh was lying upon her; but they have not stated that the accused was ravishing her. 5. It is astonishing to note that inspite of the fact that the prosecutrix deposed that she was ravished by the accused, the Court did not ammend the charge nor the prosecution made any request for ammending the charge as the statements given by the prosecutrix before the Court were constituting an offence under Section 376 of IPC. 6. The fact-situation emerging in this case from the evidence of the prosecution witnesses take me to infer that the alleged offence of 376/511 of IPC is not at all proved against the accused respondent. Firstly, what made the complainant to file a private complaint in the Court of Additional Judicial Magistrate, Kishangarh instead of lodging a report of the occurrence in the Police Station, Mundawar, is not explained nor the complainant has assigned any reason for doing so. The complainant has deposed in the cross-examination that first, he went to 5 Mundawar where he was asked to go to Kishangarhbas but this explanation is neither appealing nor convincing. The prosecutrix is found to have been medically examined by Dr. R.N. Agarwal on 2nd April, 1990 at 3.15 PM on her own request. She is found to have sustained four simple injuries on her body but nothing has been suggested in this report Ex.P/3 that she was raped. On the contrary, PW/7 Dr. Ramanand who conducted the medical examination of prosecutrix Dhano @ Ghanodi has stated in his cross-examination that the injured Ghanodi did not disclose before him that she was raped or somebody attempted to commit rape upon her. 7. Smt. Dhano @ Ghanodi, the prosecutrix of this case has tried to give the highly exaggerated version of the occurrence. She has made innumerable improvements on material particulars which makes the whole prosecution story unbelievable. The statements of PW/3 Surja and others in regard to the alleged offences, are omnibus and devoid of particulars. All these witnesses have been cross-examined by the learned counsel for the accused respondent and on their cross-examination, many inconsistencies and infirmities have been found creeping in their statements. The manner in which the story of rape has been cooked up by the prosecutrix and her husband leads me to arrive at this conclusion that there is not even a shred of evidence on record about the commission of offence of rape. The 6 learned trial Court has appreciated the evidence of the prosecution witnesses in their right perspective and the conclusion drawn in the last paragraph is found to be cogent and apt. Not only the statements of prosecutrix but the statements of other witnesses also do not inspire any confidence. The testimony of the prosecution witnesses is not found to be credible in the facts and circumstances of the case. The judgment of the lower Court thus is well-merited with which I fully concur and, to my firm view, it calls for no interference. 8. For these reasons, this State Appeal being devoid of merits stands dismissed. (MAHESH BHAGWATI), J. /gandhi