1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Ramotar son of Shri Pemaram by caste Chamar, Resident of Udawas, Police Station Sadar District Jhunjhunu (Rajasthan) Vs. State of Rajasthan through P.P. S.B.Criminal Appeal No.547/2008 under Section 374 of the Code of Criminal Procedure against the judgment dated 5.4.2006 passed by Additional Sessions Judge (Fast Track) No.2, Jhnjhunu in Sessions Case No. 166/2005(40/02, 23/02). Date of Judgment 4th February, 2010 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Rohan Jain Amicus Curiae for the appellant. Mr. Mahendra Meena Public Prosecutor for State. **** BY THE COURT: This appeal has been filed against the judgment dated 5.4.2006 passed by Additional Sessions Judge (Fast Track) No.2, Jhnujhunu in Sessions Case 166/2005 (40/02, 23/02) by which he convicted accused-appellant-Ramotar under Section 376 IPC and sentenced to undergo 7 years 2 rigorous imprisonment and fine of Rs.100/-, in default of payment of fine to further undergo one month's simple imprisonment. Brief facts of the prosecution case are that PW5-Ummed Singh lodged report Ex.P/9 on 25.8.2000 at 4.30 a.m. and alleged that on 24.8.2000 he alongwith Constable-Balbir Singh, Liyakat Ali proceeded for 'gasht' in Government Jeep driven by Jai Prakash. They reached at Budana Check Post at 2.30 a.m. where they got information through wireless that many persons have assembled in village Budana and they have detained one man and one woman. On this information complainant-Ummed Singh left Budana Check Post and took lady Constable- Subhita with them and reached in village Udawas at 3.00 a.m. and found that many persons assembled on the road side and they had detained one mentally retarded lady-Mamta and accused- Ramotar. The villagers also revealed them that accused-Ramotar has committed rape with 3 Mamta. On this report case under Section 376 IPC was registered. After completion of investigation challan under Section 376 IPC was filed against the accused-appellant in the Court of A.C.J.M.Jhunjhunu. Case was committed to the Court of Sessions Judge, Jhunjhunu which was transferred to different Courts and ultimately case was transferred to Additional Sessions Judge (Fast Track) No.2, Jhnjhunu. Charge under Section 376 IPC was framed against the accused-appellant to which he denied. During trial prosecution examined 12 witnesses and after recording statement of accused under Section 313 Cr.P.C. and hearing arguments the accused-appellant was convicted and sentenced as aforesaid. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant submitted that without recording statement of prosecutrix the trial Court has committed error in convicting the accused and further submitted that 4 none of the prosecution witnesse has proved offence of rape by the accused-appellant and in such circumstances learned trial Court has committed error in convicting the accused- appellant, hence, appeal of the appellant may be accepted and the appellant may be acquitted of the charge levelled against him. On the other hand learned Public Prosecutor submitted that as prosecutrix could not be traced the learned trial Court has rightly convicted the accused on the basis of other prosecution evidence, hence, the appeal of the appellant may be dismissed. Perusal of record reveals that prosecution failed to examine prosecutrix Mamta though she was sent to Nari Niketan, Jaipur. PW5-Ummed Singh, ASI who lodged report Ex.P/9 has stated that he alongwith other police personnels reached on spot in village Udawas where mentally retarded prosecutrix-Mamta and accused-Ramotar were detained by villagers and villagers revealed that 5 accused had committed rape with Mamta. Other Constables who were in gasht with ASI Ummed Singh have also corroborated statement of Ummed Singh. None of the witnesses has revealed name of any villagers who told police personnels about the rape by accused with Mamta. Report Ex.P/9 also does not contain name of any villager. The prosecution has examined some of the villagers. PW1-Mahendra has stated that his house is near the house of accused-Ramotar and witnesses Sultan & Bhagwana Ram. He further stated that in the night he did not hear cries of any lady and he has not seen accused committing rape with any lady. He was declared hostile and denied police statement Ex.P/1. PW3-Bhagwana Ram has stated that Sultan alongwith his daughter came to his house and stated that 5 to 6 miscreants were in the house of Ramotar, then he told this fact to Mahendra who intimated on telephone to the police. He further stated that police came on spot where accused-Ramotar and 6 one girl was found there. He further stated that when police came there he saw Mamta and accused-Ramotar on a cot but he did not see committing sexual intercourse. He was also declared hostile and he denied his police statement Ex.P/5. PW8-Sultan has stated that he heard cries of a lady from the house of accused- Ramotar then he alongwith Bhagwana Ram and Mehendra went there and saw lady-Mamta and accused-Ramotar in nacked compromising position and lady was crying. He further stated that accused was committing rape with that lady then they informed to the police on telephone and police came on the spot and took accused- Ramotar and Mamta with them. He admitted in his cross examination that his police statement was recorded after four days and he disclosed about sexual intercourse in his police statement Ex.D/1, but this fact does not find place in his police statement. He further stated that police personnels came at 10.00 p.m. on the spot 7 whereas as per report Ex.P/9 and the statements of police personnels, police reached on spot at about 3.00 a.m. He also admitted that Rajesh and Ramotar are his first cousin and he has filed criminal case against both of them regarding injuries inflicted by them. He has further stated that when they reached on the spot Mamta and accused were on cot inside the house and he disclosed this fact in his police statement Ex.D/1, but this fact does not find place in his police statement. Except aforesaid three villagers, none other villager has been examined by the prosecution. PW1-Mahendra and PW3-Bhagwana Ram have been declared hostile and have not supported prosecution case. No reliance can be placed on the statement of PW8-Sultan on account of enmity between him and accused and contradictions and omissions in his court statement and police statement and non- corroboration of his statement by Mahendra and 8 Bhagwana Ram, who were with him and on account of improvement in his police statement Ex.D/1. As far police personnels are concerned, all the police personnels except PW6-Balvir Singh have stated in their statements that lady Constable-Subhita was with them. This fact has also been mentioned in report Ex.P/9, but there is contradiction in their statements about the place and time from where and at what time Constable- Subhita was taken by ASI-Ummed Singh. Presence of Constable-Subhita on spot is very much doubtful because PW3-Bhagwana Ram has clearly admitted in his cross examination that no lady constable came with police personnels on the spot. PW8-Sultan has also admitted in his cross examination that no lady constable came on the spot with police personnels. PW6-Constable-Balvir Singh has admitted in his cross examination that lady Constable-Subhita was not with them in 'gasht' In such circumstances, it becomes doubtful 9 that PW2-Constable-Subhita went on the spot. PW2-Constable-Subhita stated in her statement that she went with ASI-Ummed Singh on gasht at Udawas and found prosecutrix-Mamta alongwith accused-Ramotar on the road side. She further stated that on enquiry, Mamta revealed her that accused has committed rape with her. None of the other police personnels have corroborated this fact that Constable-Subhita asked prosecutrix-Mamta about the rape. Even report Ex.P/9 does not contain this fact that on enquiry prosecutrix- Mamta revealed the fact of rape by accused to Constable-Subhita. All the police personnels except PW2-Subhita have admitted in their cross examination that report Ex.P/9 has been lodged only on hearsay statement of villagers. They also do not say in their statement that Constable- Subhita asked prosecutrix-Mamta about the occurrence and Mamta revealed her about commission of rape with her. 10 As per statement of PW4-Dr.J.P.Bhugaliya coupled with FSL report Ex.P/13, it can be inferred that sexual intercourse was committed by some person with prosecutrix-Mamta, but does not prove beyond reasonable doubt that accused had sexual intercourse with prosecutrix-Mamta amounting to rape. As per FSL report Ex.P/13 human semen was detected on Lehanga of prosecutrix and chaddi of accused, but recovery memo of chaddi Ex.P/4 reveals that packet containing chaddi has been assigned Mark-B lateron by different ink and in such circumstances no reliance can be placed on FSL report Ex.P/13 and accused cannot be connected with the crime. In this case the investigating agency made an attempt to get prosecutrix's statement recorded under Section 164 Cr.P.C. Document Ex.P/14 reveals that Judicial Magistrate tried to record statement of prosecutrix-Mamta under Section 164 Cr.P.C., but as she was mentally retarded and was not able to understand 11 questions, her statement was not recorded. The learned trial Court also tried to procure prosecutrix-Mamta for evidence as per order sheet dated 31.1.2006 to 3.4.2006 but her whereabouts could not be traced out and her statement could not be recorded. As per above discussion in the absence of statement of prosecutrix in the trial Court or statement under Section 164 Cr.P.C. and in the absence of corroboration by villagers and contradictions in the statements of police personnels, learned trial Court has committed error in convicting the accused-appellant specially when presence of PW2 lady Constable-Subhita is doubtful and narration of incident to her by prosecutrix is not corroborated by any other witness. Consequently, SB Criminal Appeal No.547/2008 is accepted and the judgment of the trial Court dated 5.4.2006 is set aside and accused-appellant-Ramotar son of Shri Pema Ram 12 is acquitted of the offence under Section 376 IPC. The accused-appellant is in judicial custody and he may be released forthwith if not wanted in any other criminal case. (K.S.CHAUDHARI) J teekam