Full Judgment
S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
Date of Judgment : 25.11.2014 PRESENT HON'BLE MR JUSTICE VIJAY BISHNOI Mr L.R.Upadhyay - Public Prosecutor Mr K.R.Bhati, for appellant-Badam Bai BY THE COURT: These criminal leave to appeal as well as the appeal have been preferred respectively on behalf of State and complainant-Badam Bai against the judgment dated 05.03.2014 passed by Additional Sessions Judge No.2, Chittorgarh Camp at Begun (for short 'the trial court' S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
2 hereinafter) in Sessions Case No.26/2012, whereby the trial court has acquitted the accused - Shiv Lal for the offences punishable under sections 341, 354 and 376 IPC.
Learned Public Prosecutor as well as the learned counsel appearing on behalf of appellant - Badam Bai have argued that sufficient evidence is available on record against the accused - Shiv Lal to prove that he has committed offences punishable under sections 351, 354 and 376 IPC, however, the learned trial court, without appreciating the evidence as well as the material available on record, has illegally acquitted the accused - Shiv Lal for the alleged offences.
Both the learned counsels have invited the attention of the Court towards the statement of PW.1 Badam Bai, PW.2 Nemi Chand, PW.3 Kanhaiya Lal and PW.4 Madhu Lal and argued that on the basis of the above named witnesses, the prosecution has proved that on 05.09.2012 in the afternoon, the accused-Shiv Lal caught hold the prosecutrix S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
3 and after lifting her, forcibly took her away towards his Bara (pen) and committed sexual assault upon her.
It is claimed that the prosecution has also proved that on 19.09.2012, the accused-Shiv Lal again caught hold the prosecutrix and molested her and when she raised cries, he fled away from the scene of offence.
It is further contended that the trial court has disbelieved the testimony of the above named witnesses without giving any cogent reason, hence, the judgment under challenge is liable to be quashed and set aside.
Heard learned counsel for the parties and perused the impugned order.
The trial court has acquitted accused-Shiv Lal for the offences punishable under sections 351, 354 and 376 IPC for the following reasons: (i) That the FIR regarding alleged incident of 05.09.2012 was registered on 21.09.2012 and no satisfactory explanation has been offered in filing the delayed FIR.
S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
4 (ii) That from the statements of witnesses namely PW.1 Badam Bai, PW.2 Nemi Chand, PW.4 Madhu Lal, PW.6 Hajari Lal, PW.11 Chunni Lal and PW.12 Vikram Singh- Investigating Officer, it is not clear that the complaint was filed in the police station or in the Court and who were present at the time of submitting the complaint.
(iii) That the statements of PW.1 - Badam Bai that on 19.09.2012, the accused-Shiv Lal had caught hold her and molested her are not believable because in her statement recorded under section 164 Cr PC, she has not stated about the alleged incident took place on 19.09.2012.
(iv) That as per the statement of PW.1-Badam Bai, accused-Shiv Lal has committed sexual assault upon her at about 3:00 P.M., whereas in the complaint, the time of the incident is shown as 12:00 noon.
The other witnesses namely PW.2 and PW.11 have not mentioned about the S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
5 date and time of the incident.
(v) That in the injury report, there is no mention about the injury on the body of PW.1, whereas in her statement, she has alleged that accused-Shiv Lal after catching hold of her, lifted her and forcibly took her away towards Bara and thereafter committed sexual assault upon her.
As per the statement of PW.7 Dr.
Kiran Bala, no injury was found on the private parts or body of PW.1.
(vi) That from Ex.P/3-Naksha Mauka, it is clear that the Bara, where the alleged incident said to have taken place is open from all sides and is situated on the way, where regular traffic leads, therefore, it is not believable that in the day light at 3:00 P.M., accused- Shiv Lal had sexually assaulted the victim in the vicinity of all.
(vii) That the statements of witnesses viz.
PW.4 Madhu Lal and PW.11 Chunni Lal are not believable as they are near relatives of the complainant and her S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
6 husband and PW.3 Kanhaiya Lal is not having good relations with accused-Shiv Lal, which has been admitted by him in his statement that the relations between him and the family of accused- Shiv Lal are not cordial.
After going through the evidence produced on behalf of the prosecution as well as the defence, this Court is of the opinion that the trial court has not committed any illegality in not relying on the testimony of the prosecution witnesses because the evidence of those witnesses are not trustworthy and there are several contradictions in their statements.
The conduct of the witnesses of reporting the incident dated 05.09.2012 after a delay of more than 15 days creates suspicion about the complaint and the learned trial court has rightly held that the prosecution has failed to prove the charges against the accused-Shiv Lal beyond reasonable doubt.
Hence, there is no force in the criminal leave to appeal preferred on behalf of the State and in the S.B.CR.
LEAVE TO APPEAL NO.131/2014 State of Rajasthan versus Shiv Lal S.B.CRIMINAL APPEAL NO.422/2014 Badam Bai versus State of Rajasthan & Anr.
7 appeal preferred by complainant Badam Bai.
Consequently, the instant criminal leave to appeal as well as the appeal are dismissed.
[VIJAY BISHNOI].,J.
m.asif/-