SBCr.Appeal No.443/87. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CRIMINAL APPEAL NO.443/1987. Ramji & Ors. Vs. State of Rajasthan Date of Judgment : September 19, 2008. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri D.K. Soral for the accused-appellants. Shri D.D. Sharma, Public Prosecutor for State. **** Reportable BY THE COURT :- This criminal appeal is directed against the judgment & order of learned District & Sessions Judge Baran dated 30/10/1987 whereby the learned trial court convicted all the accused-appellants for offence under Section 366 IPC and sentenced each of them to undergo rigorous imprisonment for three years with a fine of Rs.500/- to be paid by each of the appellants and in case of default of payment of fine, sentenced to further undergo simple imprisonment for three months. Additionally, accused-appellants Ramji and Tunda were convicted for offence under Section 376 IPC and each of them were sentenced to undergo rigorous SBCr.Appeal No.443/87. 2 imprisonment of 7 years with fine of Rs.500/- to be paid by each of the appellants and in case of default, they were to further undergo sentence of three months simple imprisonment. Both the sentences were directed to run concurrently. 2) The factual matrix of the case is that a criminal complaint was submitted by complainant Harilal in the court of learned Munsiff and Judicial Magistrate, Badi on 24/9/1984 inter-alia alleging therein that when his wife Smt.Urmila in the morning of 24/9/1984 at about 6.00 a.m. was going to answer the call of nature, accused Tunda, Tulua and Buddha, accompanied with two other persons, who were armed with lathis came there on a tractor and forcibly abducted his wife. On hearing hues and cries of his wife, Phool Singh S/o Lal Chand Jatav and Pati Ram S/o Karan Singh by caste Brahmin and complainant himself rushed to the place of occurrence. Phool Singh warned them not to do so. Wife of the complainant was crying but since the accused persons were armed with lathis, complainant could not rescue her wife from their cluthces. Complainant then approached the Police Station Badi for lodging the first information report but they refused to take any action and, therefore, the complaint was filed in the court concerned. In the complaint, request was made to the court to send the complaint to the police station for investigation u/S.156(3) Cr.P.C. and it was prayed that a direction SBCr.Appeal No.443/87. 3 be issued for recovery of his wife. 3) On receipt of the complaint from the court, Police Station Badi lodged the first information report and conducted investigation. Police filed challan against the accused-appellants herein for offences under Sectionis 366, 368 and 376 IPC. Learned trial court after completion of the trial, convicted all the aforesaid accused for offences as indicated above. 4) Shri D.K. Soral, learned counsel for the accused-appellants has argued that in fact, the prosecutrix Mst.Urmila, who is aged 50 years, came in 'Nata' to Gote, who was brother of accused Tunda. Learned counsel referred to Exh.D/1 written majornama, which was prepared on a non-judicial stamp of Rs.5/- on 18/2/1978. It was argued that complainant Harilal had written the said written majornama in presence of witnesses and the panchyat that his wife Mst.Urmila wanted to desert him to lead her life with someone else. It was agreed that Gote would pay to him a sum of Rs.1250/- for the cost of the ornaments and such amount was paid and that Harilal stated that he would have no objection if his wife wanted to live with someone else. In fact, Mst.Urmila since then on lived with Gote and when he died, with his brother Tunda. Entire prosecution story has been concocted with a view to recovering the prosecutrix from Tunda. Learned counsel submitted that statement of PW1 Harilal cannot SBCr.Appeal No.443/87. 4 be believed because he has stated that when Urmila was abducted, he was in market but at the same time he described himself as an eye-witness. While PW1 Harilal states that he knew all the accused, prosecutrix stated that these accused were not known to Harilal. PW3 Phool Singh asserted that Urmila was residing with Hari Lal ever since her marriage with him eight years ago whereas Urmila herself has not supported this part of his statement because she has admitted that she was sent to Gote by her brother Karamveer and her mother. Learned counsel referred to the statement of PW4 Smt.Urmila and argued that in her satement, she has admitted that her age is 50 years and accused- appellants behaved with her in good and decent manner and that she did not object to the accused or any other persons about her being kept there. Learned Public Prosecutor at that stage requested the court for declaring this witness hostile but the court instead of doing so, permitted the Public Prosecutor to ask leading questions. Learned counsel has cited the judgment of Patna High Court in Niru Bhagat Vs. Emperor : AIR 1922 Patna 582 to argue that if prosecutrix did not support the prosecution case and the Public Prosecutor requested the court at that stage to declare her hostile, the court could not permit Public Prosecutor to ask leading questions. Learned counsel argued that statement of the prosecutrix recorded from that stage onwards being SBCr.Appeal No.443/87. 5 inadmissible, is liable to be ignored. 5) Learned counsel further submits that the prosecutrix in her statement has nowhere stated that she was subjected to forcible sexual intercourse or rape. In fact, tenure of the statement is such that she willingly stayed with Tunda, brother of Gote with whom she was living for long. Learned counsel also relied on the statement of DW1 Amar Singh aged 10 years, son of prosecutrix Mst.Urmila born to her from Gote and has argued that even from the statement of Amar Singh, both the offences of abduction and rape cannot be taken as proved beyond reasonable doubt. Conviction of the appellants both for offences under Sections 366 and 376 IPC recorded by the learned trial court is therefore bad in law and is liable to be set- aside. Learned counsel argued that the prosecutrix in her statement before the court has disowned the part of her statement recorded u/S.161 Cr.P.C. wherein she had alleged that upon hearing her hues and cries, her husband Harilal came for her rescue but accused Dal Chand threatened him, therefore he ran away. Learned trial court also erred in law in seeking corroboration from the statement of prosecutrix recorded under Section 164 Cr.P.C. Learned counsel citing the judgment of Supreme Court in State of Delhi Vs. Shri Ram Lohia : AIR 1960 SC 490 argued that statement of witnesses recorded under Section 164 Cr.P.C. is not a substantive piece of evidence. It can be used only to SBCr.Appeal No.443/87. 6 corroborate or contradict that witness. Learned trial court therefore was not justified in basing its finding on such statement. It is therefore prayed that appeal be allowed and the judgment of conviction and sentence be quashed and set-aside. 6) Shri Deen Dayal Sharma, learned Public Prosecutor opposed the appeal and argued that the prosecution story has been proved beyond reasonable doubt by overwhelming evidence. He has referred to the statement of PW1 Harilal. He submitted that PW1 Harilal has clearly stated that he witnessed his wife Urmila being forcibly abducted by the accused along with other accused and as per his statement, this was also witnessed by Pati Ram, Brahman, Phool Singh and Imlak. Learned Public Prosecutor argued that even if Pati Ram was declared hostile, Phool Singh has supported the prosecution story atleast on the allegation of abduction. Minor contradictions and discrepancies in the statement of Mst.Urmila cannot be made basis for discarding her entire testimony. Learned Public Prosecutor further argued that from the statements of PW5 Girdhar Singh SHO PS Salimpur, PW6 Gulab Singh & PW7 Jagdish Prasad Sharma, it is proved that prosecutrix was recovered from the residence of Tunda. It was therefore argued that the trial court was justified in convicting and sentencing the appellants for the aforesaid offences. SBCr.Appeal No.443/87. 7 7) I have given my anxious consideration to the rival submissions advanced on behalf of the parties and perused the material on record as also the cited precedents. 8) Evidence that has come on record clearly suggests and which fact has been admitted by prosecutrix PW4-Mst.Urmila herself that though she was originally married to PW1 Harilal and stayed with him for about five years but on account of some quarrel between her and her husband Harilal, she went to her parental house. She has admitted this fact in her cross-examination further stating therein that after death of her father, her brother Karamveer and mother sent her on 'Dhareja' to Gote, brother of accused Tunda. She lived with him for about two years in village Kawaila where she gave birth to Amar Singh DW1. Word 'Dhareja' means a married woman living with another person while her husband is alive. Gote thereafter died due to snake bite. She in her examination-in-chief stated that she was abducted from the place of Harilal while she was going to answer the call of nature in the field of village Kawaila but she further stated that accused gave her good treatment and that she did not object to either the accused or any persons for being kept her there. Learned Public Prosecutor at that stage requested that this witness be declared hostile but the learned trial court required the Public Prosecutor to put leading SBCr.Appeal No.443/87. 8 questions to her. At that stage, ofcourse, this witness has stated that Tunda and Ramji had sexual intercourse with her but she has not stated that she was ever subjected to forcible intercourse against her wishes. Contrarily, on being asked whether part of her police statement from places A to D marked in Exh.P/3 is correct that upon hearing her hues and cries, her husband Harilal came to rescue her but accused Dal Chand threatened him, he ray away, she stated that she did not give this statement to the police. Accused Ram Kishan was also known as Dal Chand. Besides this, she in her cross-examination has stated that while she was sleeping with accused Tunda, police came there, when called and she came out at about 2 p.m. and was sent to the residence of Harilal where she stayed for about 3-4 days. She admitted that her son Amar Singh was residing with accused Tunda. As regards written majornama Exh.D/1, she has admitted that when she came to Gote, Harilal had taken money from him. She even stated that police at the second time also recovered her from Tunda's place. When the statement of prosecution witness PW3-Phool Singh is analysed in the light of this statement of the prosecutrix, it would be evident that he is not speaking truth because this witness Phool Singh has stated that ever since her marriage with Harilal eight years ago, prosecutrix Urmila was living with him. No doubt, this witness has stated that when he was going to answer the call of SBCr.Appeal No.443/87. 9 nature, Tunda, Ramji, Ramhet and Kishan forcibly abducted Urmila in tractor but PW1 Harilal in his statement has stated that he was in the market at the time of incident and when his cousin Imlak informed him that accused were forcibly taking his wife Urmila with them, thereupon he came for her rescue. He found Patiram also present there who asked the accused not to do so. Phool Singh Jatav also thereafter reached there from the side of Panchayat Samiti. From the statement of PW1-Harilal, it appears that Phool Singh Jatav reached there after prosecutrix Urmila had already been taken away by the accused. In fact, statement of Harilal does not inspire confidence that he witnessed the incident because he stated that he was informed about the incident by his cousin Imlak when he was in market. Thereupon, he went to the place of occurrence. If the accused appellants were on tractor and immediately ran away from the place of occurrence, it could not be believed that they would wait for arrival of all these witnesses including that of PW1-Harilal and PW3-Phool Singh. Learned trial court in order to make out for the deficiencies of all these cryptic pieces of evidence sought to rely upon evidence of the prosecutrix recorded under Section 164 Cr.P.C. Statement recorded under Section 164 Cr.P.C. can only be made use of for corroboration or contradiction of the evidence of the witnesses but it cannot be by itself treated as substantive piece of SBCr.Appeal No.443/87. 10 evidence. The evidence which has been produced by the prosecution in the present matter, if take into consideration cumulatively and in its entirety, does not prove either of the offences against the accused appellants beyond reasonable doubt entitling them to the benefit of doubt. It is highly unsafe to record conviction of the accused-appellants on the basis of such evidence which is full of contradictions and discrepancies so much so even the prosecutrix herself in her examination-in-chief did not fully support the prosecution story, this is why the learned Public Prosecutor at that stage requested the court to declare her hostile. 9) In view of the aforesaid, in my considered view, the judgment of conviction and sentence cannot be sustained. In the result, the appeal succeeds and is allowed. The impugned judgment of conviction and conviction dated 30/10/1987 is quashed and set-aside. The accused-appellants are acquitted of the charges for offences under Sections 366 and 376 IPC. Their surities and bail bonds are discharged. Record be sent back to the trial court forthwith. (MOHAMMAD RAFIQ), J. anil SBCr.Appeal No.443/87. 11