Allowed

Amer Singh v. State

Rajasthan HC3 Jul 2023CRLA/454/1994

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal in a rape case. The court found the trial court committed a serious error by convicting the appellant based solely on the unreliable, improved, and inconsistent testimony of the prosecutrix, lacking any strict corroboration from witnesses or physical evidence. Consequently, the appellant was acquitted.

What did the court decide?

The order of conviction and sentence dated 08.09.1994 is set aside and the appellant is acquitted under Section 376 IPC.

Amer Singh Vs State — Criminal Trial and Appeal | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal No. 45411994

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Amer Singh S/o Dev Karan, Ahir R/o Vill. Santo, Teh. Behror, Distt., Alwar (Raj.)

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----Appellant

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Versus

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State of rajasthan through PP

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----Respondent

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For Appellant(s) : Mr. Nikhil Saini For Respondent(s) : Mr. S.S. Mehla, PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judament / Order

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RESERVED ON 19/04/2023 PRONOUNCED ON 03/07/2023

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Instant appeal is preferred aggrieved from order of conviction and sentence dated 08.09.1994 in Sessions Case No.12/1993 whereby learned Additional Sessions Judge, Behror convicted appellant under Section 3761511 IPC and sentenced to rigorous imprisonment of 4 years with fine of 75001-.

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The facts of the matter are on 07.03.1993, a written complaint (Ex.Pl) was filed by victim, who is widow alleging that on 06.03.1993 around 12 noon when she was returning, appellant near field of Balwant forcibly grabbed her and put her down with intent to commit sexual assault. He further tried to uncover her petticoat and also tried to remove it. During these 5 to 10 minutes, used criminal force to commit rape with her but on hue and cry, Jagroop and Om Prakash came on spot and appellant ran away. On the basis of this written complaint FIR No.1811993 was

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[CRLA-454119941

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registered at P.S. Mandhan Dlsfrict Alwar as Ex.P2 but after investigation police had filed charge-sheet against the appellant and appellant was charged under Section 3761511 IPC by learned Additional Sessions Judge, Behror, District Alwar. During trial a total number of 8 witnesses were produced by prosecution and accused was examined under Section 313 Cr.P.C. wherein he chose to submit defence evidence and in defence DW1 Balveer Singh was examined. After hearing the arguments, appellant was convicted. Hence this appeal.

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Learned counsel for the appellant submitted that for incident of 6th March, the FIR was registered on 7th March and delay of one day was not explained. He would further submitted that in written complaint two eye witnesses Jagroop and Om Prakash were named but out of which Om Prakash turned hostile and Jagroop did not support the version of prosecution. He would further submitted that prosecutrix had improved her version and introduced new eye witnesses like Amilal, Keher Singh and others. He would further submitted that PW1 prosecutrix in her statement clearly stated that she suffered injuries and same were shown to police but PW8 Investigating Officer clearly indicated that there were no bodily injuries on body of prosecutrix so no medical examination was conducted. He further submitted that the improvement in the statement of PW1 prosecutrix made her thoroughly unreliable and the incident was not supported by any one though from evidence it was proved that there were other people working on near by field. He would submitted that petticoat of prosecutrix was not sealed as per norms and the entire incident as narrated by PW1 was highly improbable. He submitted that it

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[CRLA-454119941

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was at the instance of Amilal PW3;'this FIR was registered so as to put pressure on appellant to settle a criminal case, registered against family members of Amilal. At last he submitted that the incident was a 30 years old and leniency may be adopted in favour of appellant.

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Aforesaid contentions were opposed by learned Public Prosecutor.

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Heard learned counsel for the appellant and learned Public Prosecutor. Perused the record.

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The incident was reported to police in the evening of 07.03.1993 which means there was a delay of more than one day though this delay was not explained but Ex.P2 clearly indicated that police station was nearly 14 KM from the place of the incidence. In this case, the matter relates to sexual assault and that too in a rural area, therefore, delay of one day had to be considered on the facts of the matter. In Ex.P2 itself it was mentioned that she prayed before villagers for justice but they failed to provide.

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In case of Santhosh Moolya & Anr. Vs. State of Karnataka reported in (2010) 5 SCC 445 Hon'ble Supreme Court while referring the cases of The State of Punjab Vs. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 and Sohan Singh & Anr. Vs. State of Bihar reported in (2010) 1 SCC 68 observed that where there is a delay and explained by victim or other witnesses and moreover, there was no male member in the family to help her then delay would not affect the merit of the case. Similarly, in case of State of Rajasthan Vs. Om Prqkash in Criminal Appeal No.197511996 (judgment dated 03.05.2002)

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State of Punjab Vs. Gurmit Singh & Ors. (supra) and State of Maharashtra Vs. Chandraprakash Kewal Chand Jain reported in (1990) 1 SCC 550 laid down that the court must not overlook the fact that a woman or a girl subjected to sexual assault is not accomplice to the crime but she is a victim of another person's lust and it is improper and undesirable to test her evidence with certain amount of suspicion and further treating her as if she is an accomplice. In this case Hon'ble Supreme Court while allowing the appeal from order of acquittal had turned down the argument of defence that there was a delay of 26 hours in reporting the matter.

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Having considered aforesaid judgments of Supreme Court, I am of considered view that delay in lodging FIR is not always fatal, particularly in case of rape wherein it would be very difficult for a women or a girl to console herself as the incident of sexual assault is something which disturbs her physical and mental well being. She definitely needs some time to console that's why'now a days the role of counselor particularly in cases of sexual abuse of children becomes relevant and the court must be alive to the situation, therefore, we thoroughly disagree with the argument as advanced by learned counsel for the appellant.

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Herein, this case in Ex.Pl two witnesses Jagroop and Om Prakash were named as eye witnesses. Jagroop was examined as PW5 and he turned hostile but in the entire deposition, the incident was not corroborated by this PW5. Rather he stated that the prosecutrix unearthed chickpea plants and she was scolded. Another witness, named by prosecutrix was PW4 Om Prakash and

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[CRLA-454119941

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he also turned hostile, therefij;?' both PW4 and PW5 had not supported the story of prosecution.

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In this case, new eye witnesses including PW3 Amilal, PW2 Jai Narayan and PW6 Kehar Singh were introduced by the prosecution. PW6 Kehar Singh also turned hostile but before turning hostile he deposed that he was with Amilal PW3, wherein he saw that appellant was running away. PW3 Amilal in his deposition stated that on call of prosecutrix, when he reached at the spot he saw that appellant had put down prosecutrix to commit rape with her. This PW3 further stated that he, Kehar Singh, Om Prakash and Jagroop had seen the incident and during cross examination that it was admitted by him that he revealed to the police about abrasion on back of prosecutrix but it was not mentioned in Ex.Dl. He further admitted that the field of appellant was near by the place of incident. Jai Narayan was examined as PW2 and he is not an eye witness as he just accompanied victim to the police station.

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Now the important witnesses PW1 prosecutrix in her statement stated that when she was returning, she was pulled down by appellant, who uncovered her petticoat. Thereafter, appellant touched his penis with her body but on her hue and cry Amilal, Kehar Singh, Jagroop and Om Prakash came to rescue. In her cross examination it was admitted by her that field of appellant was near to the place of incident. She further admitted that wife of Hari Singh was working in field but Jagroop and his sons were also there, working in the field. She further admitted that she sustained injuries on her neck, which were shown to police but she was not medically examined. She further admitted

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admitted in cross that private part of accused touched her vagina and semen was dropped on her leg which was shown to Doctor. She further admitted that semen also dropped on petticoat which was shown to police. She denied the fact that at the instigation of Amilal this report was registered by her. At last PW8 Mirju Singh, Investigating Officer was examined by the prosecution and during cross it was admitted that victim had refused medical examination so her medical examination could not be conducted.

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In defence accused-appellant had stated that family member of Amilal had assaulted his sister-in-law and family members of Amilal were convicted by the court. Further witness DW1 Balveer Singh was examined by the appellant in support of contention that prosecutrix had unearthed some plants of chickpea from field of appellant-accused.

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Having considered the entire evidence as led by prosecution and also defence, it is apparently clear that victim did not suffered any injury and there was no injury on body of victim, therefore, she was not subjected to medical examination. The statement of PW1 clearly indicated that the field of appellant was near to the place of incident and in near by field, other villagers were working as the incident was of broad day light. When we consider the fact that in Ex.Pl registered next day in presence of PW2 Jai Narayan who is a close relative of prosecutrix, there was no narration regarding removal of cloths either of appellant or of prosecutrix but while making deposition before the court not only there were substantial improvements but certain things were introduced by PW1, which were not there in prosecution case, till charge-sheet

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as eye witness in Ex.Pl but in her statement before the court she made it clear that it was master Amilal who first approached her. This master Amilal who was examined as PW3 was having animosity with present appellant though this might not be a factor to consider the evidence of PW1. Herein, none of the eye witness or near by persons working on the field have corroborated the incident with PW1. The narration of incident by PW1 clearly indicated that there must be some proof of either presence of semen petticoat or torned petticoat but no verification was available from evidence of prosecution.

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In this case in Ex.P1 report two named eye witnesses PW4 and PW5 have not corroborated the incident but during police investigation more eye witnesses were introduced and out of which PW6 Kehar Singh had turned hostile though he stated that he was with PW3 Amilal. Herein, presence of PW3 Amilal is doubtful and so also the presence of PW6 Kehar Singh. Moreover, in this case, as per admission of PW1 other persons who were working near by in the month of March wherein mustard crop was there on field and no one came to rescue or help then again it creates doubt on the story of prosecution. In case, if the place of incident so lonely, then the solitary deposition of this PW1 could be considered. In this case not only she improved her testimony but allegations went up to the extent that she was almost raped, therefore, the narration of incident and further improvement with inclusion of individual who were not available on spot made this entire story doubtful. Therefore, considering the entire aspect of the matter, the deposition of PW1 is not trustworthy and

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,,,<%\ w;!<,~ 2i-(;;(.b~) ""., a- ~~ t% [CRLA-454119941 ,J&$ @*;: 3 &73$&? conviction of the appellant on The basis of sole testimony of this PW1 cannot be sustained unless her testimony is worthy of credence and reliable and is of sterling worth.

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Hone'ble Supreme Court in case of Rai Sandeep Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 held that 'sterling witness' should be of a very high quality and calibre whose version should be unassailable. To test the quality of such witness, what would be relevant is the truthfulness of the statement made by such witness. It should be natural and consistent with the case of prosecution qua accused.

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In view of aforesaid the testimony of PW1 is not found to be trustworthy as she made improvements in her statement and learned trial court has committed a serious error in relying upon the wavering and improved statement of PW1 to convict appellant, therefore, appellant is entitled for benefit of doubt so created from aforesaid circumstances, thus, this appeal is liable to be allowed.

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As a result present appeal preferred aggrieved from order of conviction and sentence dated 08.09.1994 is hereby allowed and the order of conviction and sentence dated 08.09.1994 is set aside. The appellant-Amer Singh is hereby acquitted from charge under Section 3761511 IPC.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/45

Amer Singh v. State

Case brief

What is this about?

What did the court decide?

Amer Singh v. State

Case brief

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