Radha through State vs Khajan Singh and Others

Arun Madan, J.—The aforesaid three appeals are directed against the judgment dated 11th February, 1992, passed by Shri Mahesh Singh Tanwar, Special Judge (Atrocities Court), Addl. Sessions, Judge, Jodhpur in Sessions Case No. 31/90, State v. Khajan Singh and Ors., whereby he convicted each of the accused-appellants for offence u/s 498A IPC and sentenced each of them to undergo one years'' rigorous imprisonment and--fine of Rs. 1,000/- each. In default of payment of fine, each of them was ordered to further undergo three month''s simple imprisonment. The learned Trial Court however, acquitted the accused Khajan Singh for the offences under Sections 376 406 IPC and other two accused Sikandar and Smt. Jethi for offence punishable u/s 406 IPC. Since these appeals arise out of the same judgment and are connected matters, they are disposed of by this common judgment.

Appeal No. 161/92 has been filed by Smt. Radha through the State for enhancement of sentence of the accused awarded by the learned Addl. Sessions Judge No. 3, Jodhpur, convicting and sentencing the accused parsons as indicated above for the offence punishable u/s 498A IPC.

Appeal No. 57/92 has been filed by all the three accused/appellants, namely, Khajan Singh, Sikandar and Smt. Jethi against their coviction and sentence passed by the Trial Court.

Appeal No. 455/92, has also been filed by the complainant Smt. Radha through the State against the acquittal of the three accused persons of offence punishable u/s 406 IPC and accused Khajan Singh for offence punishable u/s 376 IPC.

The facts giving rise to the filing of the above three appeals, briefly stated are that the prosecution case started on a written complaint lodged by the prosecutrix Smt. Radha on 26-6-1988, in the Court of Addl. Chief Judicial Magistrate No 3, Jodhpur alleging therein that she was married according to Hindu rituals to accused Sikandar son of Khajan Singh on 29th November, 1987 at Jodhpur. Accused No, 1 to 3, namely, Khajan Singh son of Sanwlji and Smt Jethi w/o Khajan Singh were also cited as co-accused alongwith her husband Sikandar accused in the said complaint. She has alleged in her complaint to the police that her father gave all presents at the time of solemnisation of her marriage with accused No. 3 Sikandar and it was solemnised in best possible manner as per status of the family. It was further alleged in her complaint that on 17th of March, 1988 while she was travelling her husband and other members of her in-laws family in the First Class Compartment of the train, the father-in-law of the complainant accused Khajan Singh asked his son Sikandar (husband of Radha) to go in another adjoining compartment alongwith his mother Smt. Jethi (wife of Khajan Singh), while Khajan Singh accused No. 1 with some evil intentions remained in the compartment in which the prosecutrix was travelling. After some time when Smt. Radha woke up, she was that her husband was not in the cabin and accused Khajan Singh, her father-in-law, was bolting the door from inside and tried to outrage her modesty and he committed rape on her. She has further alleged in her complaint that apart from the said incident there were also demands of dowry from her in-laws and it was not possible for her parents to fulfill the demands of dowry.

The Addl. Chief Judicial Magistrate, Jodhpur forwarded the complaint u/s 156(3) Cr. P.C. to the Station House Officer, Police Station, Mahamandir for investigation. The police after investigation submitted a charge-sheet in the Court of Addl. Sessions Judge, Jodhpur for trial of the accused. The learned Trial Court framed the charges against the accused Khajan Singh for offence under Sections 376/406 and 498A IPC against co-accused Sikandar and Smt. Jethi for offence u/s 406 1PC, which were read-over to the accused persons to which they pleaded not guilty and claimed to be tried.

During trial, the prosecution examined 17 witnesses in support of its case while the accused persons examined two witnesses ill their defence. After trial the Addl. Sessions Judge, Jodhpur convicted and sentenced the accused persons for offence punishable u/s 498A IPC, as indicated above, while acquitting appellant Khajan Singh for offence under Sections 406 and 376 1PC and other two accused, namely, Sikandar and Smt. Jethi for offence u/s 406 IPC, as indicated above.

In this case the marriage was solemnised between the parties, i. e. the prosecutrix Smt. Radha and Sikandar son of Khajan Singh on 29th November, 1987, while the alleged incident of committing rape on the prosecutrix took place on 17th March, 1988. The complaint was filed before the concerned Magistrate on 20th June, 1988. All the accused were on bail during trial and their sentence was suspended during the appeal, by this Court on 11th March, 1992. The law is well settled on the subject by the Apex Court of the country that the findings of acquittal should ordinarily nut be lightly interfered with until there are sufficient circumstances justifying contrary view for reversing the said findings to that of hypothesis of guilty. In Balbir Singh Vs. State of Punjab, the Apex Court held :

"Presumption of innocence of the accused person is further reinforced by this acquittal by the Trial Court and the view of the Trial Judge as to the credibility of the witness must be given proper weight and consideration. There must be compelling and substantial reasons for the Appellate Court to come to a conclusion different from that of a Trial Judge".

Law has also been well settled by the Apex Court of the country with regard to the proposition that where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them, will not prevent the conviction on the other. Section 26 of the General Clauses Act can be called in aid in support of this proposition. The proposition finds support from the Judgments of the Apex Court in the matters of The State of Madhya Pradesh Vs. Veereshwar Rao Agnihotry, and Tarachand Damu Sutar Vs. The State of Maharashtra,

It is thus well settled legal proposition that inspite of the acquittal of a person in one case, it is open to the Court in another case to proceed on the basis of course if the evidence warrants it that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence u/s 34 IPC by virtue of having committed the offence along with the acquitted person as so observed by the Apex Court in the matter of Karan Singh Vs. State of Madhya Pradesh, Thus, in view of the above, it will not be proper for this Court to interfere with the findings of acquittal recorded by the Trial Court in favour of Khajan Singh accused for offence u/s 376 IPC, and other two co-accused namely, Sikandar and Smt. Jethi for offence u/s 406 IPC.

Learned Trial Court has recorded very reasoned and cogent findings in favour of the defence. So far as the prosecutrix is concerned, there is not an iota of evidence to suggest any incident of committing rape as alleged by the prosecutrix in her complaint. Even in her cross-examination, the prosecutrix, P.W. 1, has stated that while she was travelling in the train in the First Class Compartment alongwith her in-laws, her father-in-law Khajan Singh accused had committed rape on her and after the said incident the prosecutrix called her husband, who came to her and told her that his mother is calling her, who is sitting in the adjoining compartment and consequently she went to the adjoining compartment. She has stated in her examination-in-chief that the alleged incident of rape which she narrated to her mother-in-law (accused), did not find favour or support from her nor her husband supported the said incident.

There is 110 evidence on record to suggest the incident of rape which the learned Trial Judge has himself very correctly recorded in his order, there could not be any possibility of recording such evidence. But the prosecution has made no efforts for leading any medical evidence on record in support of its case to substantiate the charge of rape against Khajan Singh (Accused No. 1) by proving any violence meted out to the prosecutrix at the time of the alleged incident of rape or subsequent thereto. Surprisingly, no such evidence has come on the record. There is no medical evidence on record to suggest any marks of injury or resistance shown by the prosecutrix at the time of commission of the alleged incident. Hence it is not plausible to subscribe to the view that any rape was committed on the prosecutrix by Khajan Singh accused.

It is contended by the learned Public Prosecutor that it was not possible to adduce medical evidence because there was time gap of over three months between the date of the incident and the date when the matter was reported to the Court i. e. 17th March, 1988 to 20th June, 1988.

Keeping in view the facts and circumstances of the case, this Court is of considered opinion that no useful purpose will be served by sending the accused to jail again because there is no over-whelming evidence to suggest the participation of the accused Khajan Singh in the incident of rape nor there is any corroborative evidence with regard to the factum of dowry demand at the instance of the accused for commission of offence u/s 498A IPC. In my view, no case is made out for interference with the findings of acquittal recorded by the learned Trial Court with regard to offences under Sections 376 and 406 IPC, against accused Khajan Singh and other two co-accused persons namely, Sikandar and Smt, Jethi in respect of an offence punishable u/s 406 IPC. Appeal No. 161/92 filed by the State for enhancement of sentence with regard to offence under Sections 406 and 498A IPC is consequently dismissed. The complainant''s Appeal No.455/ 92 filed against acquittal of the accused for offence u/s 376 IPC is also dismissed.

From the perusal of the record, 1 find that the accused Khajan Singh is a Government Servant and keeping in view the facts and circumstances of the case, he deserves to be extended the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. Smt Jethi is an old lady and accused Sikandar is husband of the prosecutrix. It will meet the ends of justice if these two accused are also extended the benefit of Section 4 of the Probation of Offenders Act, 1958.

In the result. Appeal No. 161/92, preferred by the prosecutrix, through the State and Appeal No. 455/92 preferred by the State are dismissed while Appeal No. 57/92, preferred by the accused persons against their conviction is partly allowed. While maintaining the conviction of the accused persons for an offence u/s 491A IPC as awarded by the Trial Court, they are extended the benefit of the provisions of Section 4 of the Probation of Offenders Act. It is, therefore directed that all the three accused persons, namely Khajan Singh, Sikandar and Smt, Jethi shall be released on probation, on their entering into a personal bond in the sum of Rs. 2.000/- each with on surety in the like amount, to the satisfaction of the Trial Court concerned. However, it is also made clear that the release of the accused Khajan Singh on probation will not be a disqualification attaching to the conviction with regard to the service and other consequentially benefits, which may otherwise accrue or be admissible to him under the rules, u/s 12 of the Probation of Offenders Act, 1958. With these observations, the aforesaid appeals are disposed of A copy of this order be sent to the learned Trial Court for compliance,