Vijay Kumar @ Beni Vs. State of Rajasthan - Court Judgment

Excerpt:
- - when she woke up in the morning, she found her in bad condition. according to the learned counsel, the conduct of the prosecutrix is such, which necessarily required corroboration of her version by cogent and reliable evidence. failure on the part of prosecution in not examining those witnesses who were present in the house where in one of the rooms, the rape was alleged to have been committed on the prosecutrix is fatal to the prosecution case and vitiates the trial. there are atleast three persons who must be able to tell us something, whether it is of value or it is of no value is another matter, about what happened and we feel that it is not safe to convict the appellant upon the evidence as it stands. state of kerala (2), the division bench has held that it is only in exceptional cases that the appellate court requires the accused to face trial again.sharma, j.1. these two appeals arise out of the judgment and order dated 6.2.2001 passed by the learned special judge, sc/st (prevention of attrocities) cases, ajmer, whereby he convicted the accused appellants under section 376(2)(g) 1pc and sentenced each of the appellants to undergo rigorous imprisonment for 11 years with a fine of rs. 5500/-, in default of payment of fine, each to further undergo rigorous imprisonment for 55 days. since both these appeal arise out of the same judgment, they are being disposed of by a common judgment.2. the facts of the prosecution case are summarised as here below :3. on 20.1.1994, smt. sunita harijan, a resident of ajmer lodged a verbal report at police station, pushkar stating that she left her house with an intention to stand on her own legs by doing labour and for that purpose, visited number of places. she had fifty rupees with her and after staying at ajmer for two days, she left for pushkar on 19/1.1994 for walking and in search of labour. after getting down from the bus at bus stand, she went in the town. since she was ignorant of the place she entered into a street, where 3 persons met her. she then asked them the way of temple. thereupon they asked her to follow them. she accordingly accompanied them. she further alleged that these 3 persons took her to a house. on reaching there, the prosecutrix told them that this was not the temple. these persons, in turn, replied that after staying for a little while they will go for temple. thereafter they asked her where-abouls. she disclosed them her name as sunita and told that she wanted to stand on her own legs. she also enquired about their names and it was found that one was vijay painter, second was ajeet and the third introduced himself as a contractor. she further stated that these 3 persons asked her that if she wanted to learn painting, she can do so and that she would be self dependent. they further told that number of girls have learnt the painting from there. according to the prosecutrix, she fell to their belief. she stated that at the time when she reached the house, one tenant, who the accused were addressing 'bhabhi' was also present in the house. she along with the accused stayed in a room, whereas appellant vijay went to the room of bhabhiji and after talking to her for some time, came back. according to her, she does not know as to what transpired between bhabhiji and vijay. thereafter, all the four went to the roof of the house. as per the prosecutrix, ajeet left the place at about 5.00 pm and did not return thereafter, appellant vijay and co-accused stated to have detained the prosecutrix in their room. having suspected some thing adverse, she tried to left the place but since the gate was locked, she could not go out.4. the prosecutrix further stated that in the evening at about 7.30 pm, the accused appellant and the co-accused (contractor) forcibly took her to the room on the upper story. both of them forcibly compelled her to consume whisky, but she refused to consume liquor. thereafter, both the them forcibly made her to consume liquor and they themselves consumed liquor, she then tried to raise an alarm, but they shut her mouth. thereafter all of them took their meals and she felt giddiness but was in full senses. thereafter, these persons with their ill intention, put off her cloths and also closed the door of the room. according to her, appellant vijay committed rape on her and thereafter co-accused also committed rape on her, as a result thereof, she became unconscious. she does not know as to what happened with her during night. when she woke up in the morning, she found her in bad condition. the accused made her to take both and also get her cloths washed. according to the prosecutrix, the accused asked her to follow their command and threatened her. the accused also took away her wrist watch and the cash, which she had with her. thereafter, the accused took her to ganga guest house, pushkar on the pretext that it belongs to their relatives and after leaving her at the guest house, the accused went away. she any how escaped from the guest house and went to police station to report the matter.5. on the basis of above, report, police registered a case for offence under sections 376, 379 and 120-b ipc and section 3(1), (11) and 12 of the sc/st (prevention of attrocities) act, vide fir, ex.p1 and proceeded to investigate the case.6. the prosecutrix was referred to the hospital for her medical examination and also to ascertain her age to pw.2 dr, sunita jaisinghani medical officer, government hospital, pushkar. a perusal of medical report, ex.p6 shows that the doctor did not find any marks of struggle and found the prosecutrix habitual to sexual intercourse. as regards recent sexual intercourse, the doctor opined that final opinion will be given after the report of chemical analysis is received. the doctor has issued a certificate ex.p 8, which mentions the age of the prosecutrix between 17 and 18 years.7. the police prepared site plan, ex.p2, seized the cloths of the prosecutrix which she was wearing at the time of commission of rape, vide seizure memo, ex.p/3 and also seized chaddar vide memo ex.p.4. the police also arrested the accused appellant vijay kumar vide arrest memos, ex.p. 17 and got both of them medically examined to ascertain whether they were competent to perform sexual intercourse. pw3 dr. b.p. sharma vide his reports ex.p.10 & ex.p11 of appellants subhash and vijay kumar opined that nothing was suggestive that they were not potent to perform sexual intercourse. the police also recorded the statements of witnesses under section 161 cr.p.c.8. having completed entire formalities, the police submitted a. charge sheet against the appellants.9. the learned trial court framed charges against the appellants under sections 376(2)(g), 342 and 379 ipc and under section 3(2)(v) of the sc/st (prevention of attroci-ties) act. the accused denied the charges and claimed trial.10. at the conclusion of trial, the learned trial judge found the appellants guilty of having committed offence under section 376(2)(g) ipc and according convicted them under the above offence and sentenced them as indicated above.11. i have heard learned counsel for the parties and perused the impugned judgment and the record of the case.12. in assailing the conviction, learned advocates appearing for the appellants have raised multiple arguments. firstly, it has been contended that the medical evidence in the cases of sexual assault plays vital role and in the case at hand it is completely missing. referring to the medical report, ex.p.6 and fsl report, ex.p7, it has been contended with vehemence that the report, ex.p.6 of pw.2 dr. sunita jaisinghani is negative as regards the presence of signs of struggle on vulva. similarly, it does'not mention any injury, external or internal, on the body of prosecutrix. over and above, there is no opinion of the doctor about the commission of rape on the prosecutrix. it is then contended that no test was got conducted to determine blood group of seminal stain, vaginal swab, urethral smear/swab containing semen.13. the second argument of the learned counsel is that mere presence of seminal stains cannot be said to be a proof of rape and, therefore, it cannot be made basis for establishing guilt of the accused.14. the third argument advanced by the learned counsel for the appellants is that the prosecution has withheld material witnesses, which has resulted in causing serious prejudice to the accused appellants. according to the learned counsel, the conduct of the prosecutrix is such, which necessarily required corroboration of her version by cogent and reliable evidence. failure on the part of prosecution in not examining those witnesses who were present in the house where in one of the rooms, the rape was alleged to have been committed on the prosecutrix is fatal to the prosecution case and vitiates the trial.15. lastly, it has been argued that the learned trial court has conducted trial of the case with objective considerations and with prejudicial attitude. according to the learned counsel, the trial was not conducted fairly.16. apart from what has been argued on merits of the case, learned counsel have also raised a preliminary point and contended with vehemence that it needs adjudication by this court. it is contended that on 19.9.2000, an application under section 311 cr.p.c. was moved with a prayer to examine material and important witness, namely sita ram and mst. kamla. the application was posted on 20.9.2000 and 25.9.2000 for arguments, but finally the case was fixed on 1.11.2000 for final arguments. however this application under section 311 cr.p.c. remained undecided and the material witnesses could not be examined, which has resulted in causing serious prejudice to the accused appellants.17. on the other hand, learned public prosecutor has supported the findings of guilt against the accused appellants arrived at by the learned trial court. he submitted that sufficient evidence and material was available before the learned trial court and that it was not necessary for the trial court to examine other witnesses, particularly in the light of the evidence of prosecutrix herself, which has been held to be trust worthy and worthy of credence and that no prejudice can be saidrto have been caused to the appellants by not examining the witnesses referred to above.18. i have considered the rival submissions. considering the facts and circumstances of the case, i am of the firm view that the application under section 311 cr.p.c. filed before the trial court during pendency of trial for examining two witnesses, namely sita ram and mst. kamla should have been adjudicated by the learned trial court.19. the factual position emerges from the record of the trial tallied with the factual aspect narrated by the counsel for the accused appellants. it is true that an accused has a right to make an application under section 311 cr.p.c. and the trial court is bound to summon and examine any witness whose evidence may appear to be essential to a just and proper decision of the case, even on the request of accused. therefore, it can be said that keeping the application filed under section 311 cr.p.c. undecided may itself tentamount to cause prejudice to the accused. however, i consider it just and proper to probe into the matter to find out whether the evidence of two witnesses, namely, sita ram and mst. kamla sought to be examined is essential to the just decision of the case and their non-examination has caused any prejudice to the accused.20. in the fir, ex.p1, the prosecutrix has stated about the presence of one lady tenant in the house when she reached at the house alongwith the accused appellants. ex.p2 site plan indicates the rooms marked 'c' and 'd' in the possession of tenant sita ram, who resides there along with his wife smt. kamla and his children. appellant vijay kumar is the owner of these rooms, the site plan further reveals that the room marked 'a' and 'b' is in possession of appellant vijay kumar. room marked 'c' is situated adjacent to the room marked 'b', where the alleged rape was committed.21. the prosecutrix, pw.1 has stated in her statement that when she reached at the house along with the accused persons, she found one lady present in the house. pw.9 dharam chand jain, sho had inspected the site and had recorded the statement of sita ram and smt. kamlaunder section 161 cr.p.c., which are available on recorded of the case. both these witnesses in their statements under section 161 cr.p.c. have stated that both the accused appellants alongwith ajeet and one girl entered in the house and then entered the room of appellant vijay kumar and remained in the room for whole night and the door of the room was bolted from inside. in the morning they saw all the three reading news paper on the roof of the house and thereafter all the three left the house together.22. from the record, it appears that the trial court closed the evidence of these witnesses on 24.6.2000 as in the opinion of the trial court their evidence, in the facts and circumstances of the case, was immaterial. the trial court also observed that the witnesses were summoned many a times, but they did not appear in the court. a perusal of the judgment under appeal makes it clear that the trial court has based the conviction of the appellants under section 376(2)(g) ipc having relied upon the evidence of the prosecutrix.23. undisputedly, the author of the fir is none other but the prosecutrix herself, who went to the police station and narrated the incident happened with her. in the report she has specifically stated about the presence of smt. kamla. the investigating officer has cited them as police witnesses and has recorded their statements under section 161 cr.p.c. both these witnesses have stated that accused came with a girl and remained in the room of vijay for whole night and in the morning they saw all of them reading news paper on the roof of the house and all of them left the house together.24. for the reasons aforesaid, i am of the considered view that sita ram and his wife mst. kamla being natural, important and material witnesses must have been examined and the trial court has overlooked the evidence of these two material witnesses. the evidence of these two witnesses might be able to bring out truth as to what exactly happened at the time of incident. non-examination of these two material witnesses who, according to the prosecution case, were admittedly present, in their capacity as tenants, in the house where the alleged rape was committed on the prosecutrix, through out night from the entry of the prosecutrix along with the accused persons in that house till she left the house along with the accused in the next morning, has resulted in rendering the trial unsatisfactory and it requires retrial of the case, inasmuch as these two witnesses must be able to tell something, whether it is of value or it is of no value is another matter, about what actually happened. 1 find myself in agreement with the observations of a division bench in nga kan chai v. emperor (1). the observations are :'that is, in our view, a very unsatisfactory state of affairs and it becomes still less satisfactory when it is recalled that there were three other persons who according to the prosecution's case were present and were eye witnesses of what happened, whose evidence is not made available at all. if the appellant is to be convicted and hanged on the present evidence, it really means that he has to be convicted and hanged in circumstances in which, on the face of the matters on record, the whole story (by which i mean all the available evidence) has not been given. there are atleast three persons who must be able to tell us something, whether it is of value or it is of no value is another matter, about what happened and we feel that it is not safe to convict the appellant upon the evidence as it stands. on the other hand, feeling as we do, that there are, or may be, further matters which ought to be brought to the notice of the court, we are unable to say that this is a case in which the appellant ought at once to be acquitted. our view is that this is a case which in all the circumstances must be re-tried. the course we propose to take is to set aside this conviction and the sentence under appeal and remit the case to the sessions court of pyapon to be re-tried and in so doing we shall direct the learned sessions judge of pyapon in the even of the three persons, ba sein, tet pu and kan pyo not being called as witnesses for the prosecution and not being called as witnesses by the defence, they are to be called as witnesses by the court. in having made these observations, speaking entire for myself, 1 do not intend to lay any general principles inasmuch as certain general principles have been touched upon in the recent case in 14 rang 45...'25. again in lakshmanan sundaram v. state of kerala (2), the division bench has held that it is only in exceptional cases that the appellate court requires the accused to face trial again. the court observed that when evidence available could not be placed before the court and such evidence is necessary for proper disposal of the case and its non consideration has caused serious prejudice to the accused, then in such cases recourse may be had to the provisions of section 386 cr.p.c. enabling retrial and trial may be ordered from a particular stage.26. in raghunandan v. state of u.p. (3), with one connected appeal, there lordships of the supreme court have observed that 'we must emphasis that whatever may be nature of offence, the accused are entitled to a fair trial.' the apex court while observing that in a criminal case, the fale of the proceedings cannot always be left entirely in the hands of the parties and the court has also a duty to see that essential questions are not, so far as reasonably permissible, left unanswered and held that 'in a serious case of murder, such as the one before us, persons who were, if the prosecution case is true, acting as utterly irresponsible and cafious bullies, should be judged on the evidence as it stands without the additional evidence mentioned above by us.' consequently, the apex court allowed the appeal and set aside the judgment and order of the high court and sent back the case to it for reconsideration and decision in accordance with law.27. the provisions of section 386 of the criminal procedure court empowers the appellant court that after perusing record and hearing counsel for the parties, if it appear that there are sufficient grounds to interfere with the judgment of conviction, it may reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tired by a court of competent jurisdiction subordinate to such appellate court or committed for trial.28. keeping in view the settled position of law, the law laid down by various high courts and the apex court, discussed above, it must be concluded that the present case is one in which it was pre-eminently necessary for the trial court to have examined sita ram and smt. kamla as witnesses for the purpose of deciding all important questions including the question whether the testimony of the prosecutrix could be safely acted upon or not. the trial court has barred the door against the truth and closed art important avenue leading to the truth. the case, therefore, must be sent back to the trial court.29. since the case is to be remitted back to the trial court, i do not consider it necessary to deal with and decide the other points raised by the counsel for the appellants on the merits of the case.30. consequently, i allow both the appeals to the extent that 1 set aside the judgment and order of the trial court and remit the case back for re-trial. the trial court is directed to allow the application filed under section 311 cr.p.c. and summon and examine sita raj and smt. kamla, whose evidence is essential to the just decision of the case and after these two witnesses are examined, decide the case in accordance with law.31. the accused appellants were on bail during trial of the case and they were sent to jail pursuant to their conviction by the trial court. since the judgment of conviction passed against the appellants stands set aside by this court, the position as it existed prior to the passing of judgment and order by the trial court, should be restored. it appears from the record that the appellants were on bail during trial and therefore, they shall remain on bail during re-trial, provided the appellants furnish bail bonds and sureties of the same amount as was ordered by this court while granting bail under section 439 cr.p.c., to the satisfaction of the trial court.32. copies of this judgment be sent to the concerned trial court and the superintendent, central jail, ajmer, forthwith.