Teja Ram @ Bheem S/o Pemaji vs The State of Rajasthan

The appellant has preferred this appeal assailing the judgment and order dated 08.02.2016 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Cases, Pali in Sessions Case No.14/2014.

2 By the judgment aforesaid, the appellant-accused has been convicted with sentence of imprisonment for life for the offence under Section 376 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Briefly, the facts in the matter are that on 01.11.2013 Rukma, the prosecutrix, at around 5:15 PM gave a written report at Police Station Raas stating therein that in between 1:00 PM- 2:00 PM while she was waiting for a tempo for going from Dayalpura to Raas, accused Teja Ram, who is the resident of Dayalpura, came on his motorcycle. Accused Teja Ram gave lift to Rukma on his motorcycle. Rukma while believing that Teja Ram is the resident of their village sat on the motorcycle. She was taken to Gaga Magri on a "Kachha" Road and thereafter taking her behind the bushes, the rape was committed by Teja Ram. Since, it was far flung area, even on her shouting, she could not get any

help. Accused Teja Ram threatened her that if she tell the incident to anybody she and her husband will be killed. She was frightened and, therefore, she asked for legal action against the accused Teja Ram. On this written complaint a First Information Report No.198/2013 was registered under Section 376 IPC read with Sections 3(2)(v) and 3 (1) (xii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the matter was investigated.

After completion of investigation, a charge-sheet for the aforesaid offences was filed against the appellant-accused. The trial Court framed charges under Section 376 IPC read with Sections 3(2)(v) and 3(1) (xii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

On having denied to accept the charges aforesaid, the appellant prayed for trial.

During the course of trial 16 witnesses were examined by the prosecution side and 15 documents and articles were exhibited.

Thereafter, the appellant was questioned under Section 313 Cr.P.C., the accused appellant, while denying the questions stated that he is not guilty and has been falsely implicated in the present case.

Learned trial Court, after hearing learned counsel for the parties, convicted the accused-appellant for the offence under Section 376 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced for life imprisonment with a fine of Rs.10,000/-, in default thereof, to further undergo one month's additional simple imprisonment.

We have heard learned counsel appearing on behalf of appellant-accused as well as learned Public Prosecutor and have scanned the entire record of the trial Court.

To examine the incident minutely, the statement of PW-3 Rukma Devi is the most important piece of evidence as in a case under Section 376 IPC, the most important and vital piece of evidence is the statement of the prosecutrix herself and it gains importance more particularly when there is no other direct or corroborating evidence in the matter. Keeping that in mind, the statement of Rukma Devi, the prosecutrix gains the significance in present case.

In her statement recorded before the trial Court, she submitted that on 01.11.2013, on ''Dhanteras'' while she was going from Dayalpura to Raas, she went on Motorcycle with the appellant-accused Teja Ram who took her behind the bushes and did something of his own volition, she stated that " "VERNACULAR MATTER OMITTED", thereafter she was left behind and the accused went away from the place of incident. She further stated that after going to the Police Station she lodged the report under her thumb impression and her statement under Section 164 Cr.P.C. was recorded in the Court at Jaitaran.

In her cross-examination, the prosecutrix has submitted that she had four children, out of which, the eldest who was 10 years old is no more and other three children are surviving, her husband is doing the masonry work. She further stated that there are 40- 50 houses in between her house and the house of accused Teja Ram.

To appreciate the contents of her statement more effectively, we deem it appropriate to reproduce the relevant parts of her statement in vernacular for better appreciation of the facts.

"VERNACULAR MATTER OMITTED"

When this statement is read alongwith other circumstantial evidence, the veracity of the statement itself comes under doubt as the prosecutrix's statement is not consistent and is not corroborating with the medical evidence and other evidence.

The other witnesses i.e. PW-1 Satyanarayan and PW-2 Guman, who are the witnesses who have attested their signatures on the recovery memo, have been declared hostile.

Thana Ram (PW-4) is the witness who has attested his signature on the site plan.

Lakshman (PW-6) who is the husband of the prosecutrix has deposed in his statement that his wife Rukma was taken on motorcycle by the accused Teja Ram on the pretext of dropping her on Balupura and has committed rape on the "Kachcha" road near Gaga Magri.

The other witnesses who are examined as PW-7 Bheekharam and PW-8 Mohanlal have attested their signatures on the arrest memo and recovery memo of the underwear of the accused Teja Ram.

PW-12 is Bheem Singh who is the witness who has taken the recovered material to the Forensic Science Laboratory.

PW-9 Dr. Vandana Gupta who was working as Medical Officer at Sojat and examined the prosecutrix Smt. Rukma on 01.11.2013, very categorically submitted that there was no injury on the private parts as well as body of the prosecutrix. A report to this effect Ex.-P-6 also very categorically states that "no injury marks seen on the ext. genitalia & private parts and on the body of the case examined" and "no definite opinion can be given about rape".

PW-14 Jaipal Singh, the Investigating Officer has submitted that he has investigated the matter and the recoveries has been made as per Section 27 of the evidence Act. He further submitted that the "Petikot" of the prosecutrix was taken at 3:30 PM on 02.11.2013 from the spot of incident in the presence of Satyanarayan and Guman.

Learned counsel for the appellant-accused submitted that there is no evidence on record which shows or suggests that the appellant is guilty of committing an offence under Section 376 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The statement of the prosecutrix herself is not disclosing any offence much less the offence alleged under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In her statement, she herself admits that she has not sustained any injury, she was not threatened, she was not forced and much less even the clothes were not removed by accused Teja Ram, therefore, he submits that offence under Section 376 IPC is not made out in the present case and the whole story woven by the prosecutrix is false and fabricated. Dr. Vandana Gupta has very categorically submitted that there was no injury on the genitalia and other body parts of Rukma which also corroborates the fact that no offence under Section 376 IPC was committed.

He further submitted that there is no Forensic Science Laboratory report on record of the Vaginal Swab or of the clothes and other articles collected during the course of investigation. The learned trial Court absolutely on no evidence has come to a conclusion that the appellant is guilty of an offence under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

On the other hand learned Public Prosecutor has supported the impugned judgment of conviction and order of sentence and submitted that learned trial Court has rightly convicted the accused-appellant for the offence under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the statement of the prosecutrix Rukma very categorically shows that she was taken to a lonely place on motorcycle and was subjected to rape by the appellant-accused. In the present circumstances, there is no reason to disbelieve the statement of the prosecutrix Rukma. The recovery and the material collected during the investigation also conclusively prove that the accused-appellant has rightly been convicted for the offence under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The certificate of backward class has already been produced by the complainant and, therefore, it does not need any corroboration that she belongs to a backward class and was subjected to sexual intercourse against her wish and consent. Since, the offence is against the society, giving a wrong message, therefore, life imprisonment is the only appropriate punishment in the present case.

The Hon'ble Supreme Court in State of Punjab Vs. Gurmit Singh; AIR 1996 SC 1393 has held that testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with the cases involving sexual molestation.

This Court in Nathu Singh Vs. The State of Rajasthan; 2003

(1) Cr.L.R. [Raj.] 417 while acquitting the appellant Nathu Singh held that the prosecutrix is a mature lady and she is habitual to sexual intercourse and she knows the accused-appellant earlier to the alleged incident and though there was crop of Bajra at the height of about six feet at the place of occurrence and she was put forcibly on the ground, but she did not receive any injury and this fact itself goes to show that no forcible intercourse was done with her by the accused-appellant as stated by PW-8 Smt. Devi. The fact that her clothes were intact bangles were not broken and no injury of any sort was found on her outward person, itself goes to show that it was a case of consent and not forcible intercourse.

In Aziz Vs. The State of Raj.; 2013(3) WLN 502 (Raj.) while allowing the appeal, this Court held as under:

"The prosecutrix at the time of incident was admittedly an adult and was a married woman. The medical report (Ex.-P-2) did not reveal any mark of struggle on her body. The medical opinion expressed was that she was not a virgin. The Forensic Science Laboratory report (Ex.-P-3) did not disclose any semen in her vaginal swab, though, it was collected on the very same day of the incident. The situs of the incident i.e. vicinity of the well where two other persons were at that time taking bath and their acquittal, though they had been earlier arrayed as co- accused with the appellant also, in my opinion, renders the prosecution case implausible and wanting in credibility."

We have examined the testimony of prosecutrix alongwith other statements of witnesses and the documents relied upon by the prosecution. Taking into consideration the chain of events and the place of incident suggest that the manner in which the incident has taken place is highly improbable. The prosecutrix without any force on having been given lift by the accused-appellant has boarded on his motorcycle and while passing through the area which was inhabited by a huge number of people and was a busy road where the traffic was also plying, therefore, if the route which was required to be followed by the accused was not been followed by him then in normal circumstances the prosecutrix should have raised an alarm. Not asking for help is unusual circumstance. The statements also shows discrepancy and the same are also not getting corroborated by any of the material evidence.

In our view, if a lady is thrashed on the floor against her wishes and without her consent, then in normal circumstances, the body of the person thrashed on the floor is bound to receive atleast some minor injuries or scratches more particularly in this particular case, the place where the incident occurred is a rough surface alongwith bushes around, therefore, it is highly improbable that a person will not receive injuries by the thrashes on her body. The prosecutrix Rukma has very categorically stated in her statement that she was never forced, the clothes were not torn by the accused. PW-9 Dr. Vandana Gupta, on medical examination of the prosecutrix has categorically submitted that no injuries are present on the body as well as on genitalia of the prosecutrix.

Taking into consideration the medical evidence and the statements, despite the fact that there is no Forensic Science Laboratory report on record, we are of the considered opinion that genuineness of the story projected by the prosecutrix is highly doubtful and to sustain the conviction on the evidence recorded, the same is not believable and correct.

In the present case when the statement of the prosecutrix is not inspiring confidence, there is no corroboratory evidence giving credibility to the statement of Smt. Rukma and the medical evidence remotely does not suggest the presence of any injury on the body of the prosecutrix as well as her genitalia although examined on the very same day leads us to the conclusion that the evidence is not sufficient to sustain the conviction of the appellant under Section 376 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The basic ingredients to constitute an offence under Section

376 IPC is missing in the present case. The Forensic Science Laboratory report having not been received by learned trial Court nor the same was produced by the prosecution at the time of trial to corroborate the factum of the presence of semen in the vaginal swab or on the clothes, the place of incident and the manner in which the prosecutrix was taken by the accused passing through the thickly inhabited area of the village and the two attesting witnesses of the recovery having been declared hostile takes us to the irresistible conclusion that learned trial Court fell in error while convicting the appellant-accused in the present case and we are of the view that the appellant is entitled to the benefit of doubt as the prosecution has not been able to prove the charge of rape against the appellant-accused beyond all reasonable doubts.

The appeal is therefore allowed. The impugned judgment of conviction and order of sentence is interfered and the same are set aside. The appellant Teja Ram @ Bheem is acquitted of the charges for the offence under Section 376 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In view of the acceptance of the appeal, in above terms, we order that the appellant Teja Ram @ Bheem S/o Pemaji, by Castese Devasi, age 29 years, R/o Dayalpura, P.S.

Raas, District Pali be released forthwith, if not required in any other case.

Record of the court below be returned forthwith with copy of this order.