1985 Supreme(Raj) 491
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dinkar Lal Mehta, J.
Mal Singh - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 170 of 1981.
Decided On : 1-07-1985
Advocates:
For the Appellant:R.N. Sharma, Advocate.
For the Respondent: R. Alvi, PP.
The central legal point established in the judgment is the requirement for trustworthy and reliable evidence to support charges of rape and abduction under Section 366 of the IPC.
Headnote:
Section 366 - Rape - Abduction - [IPC Section 366] - The court discussed the evidence presented by the prosecution and found it untrustworthy, leading to the conclusion that no case under Section 366 is made out. The appeal was accepted, and the conviction of both the accused under Section 366 IPC was set aside.
Fact of the Case:
The appellant was convicted under Section 366 of the IPC for allegedly committing rape and abduction. The prosecution's evidence was challenged by the appellant's counsel, highlighting inconsistencies and lack of trustworthiness.
Finding of the Court:
The court found the evidence presented by the prosecution to be untrustworthy and unreliable, leading to the conclusion that no case under Section 366 is made out. As a result, the appeal was accepted, and the conviction of the accused was set aside.
Issues: The key issues revolved around the trustworthiness of the prosecution's evidence, the alleged rape and abduction, and the applicability of Section 366 of the IPC.
Ratio Decidendi: The court's decision was based on the lack of reliable evidence to support the charges of rape and abduction, leading to the conclusion that no case under Section 366 is made out.
Final Decision: The appeal was accepted, and the conviction of both the accused under Section 366 IPC was set aside.
JUDGMENT
1. - This appeal arises out of the judgment of learned Addl. Sessions Judge No. 2, Jaipur City dated 30th March, 1981. Learned District Judge convicted the appellant Under Section 366, in Sessions Case No 94/80 and sentenced both the accused to undergo rigorous imprisonment for three years and a fine of Rs. 500/-. In default of payment of fine, it was further directed that both the accused will undergo six months rigorous imprisonment.
2. Brief facts of the case, as alleged by the prosecution are that on 30th August, 1980, about 12 in noon, accused appellant Mal Singh went at the house of prosecutrix and committed rape. It is an admitted position that no first information report about the commission of the rape has been lodged separately. It is further alleged that at about 8 to 9 p.m. in night, when prosecutrix Sarju and her mother were sitting outside the house, both the accused lifted prosecutrix Sarju and took her away. First Information Report Under Section 366 was lodged at the police station Jothwara at 11.30 p.m. on the same day by Smt. Manoo, the mother of the prosecutrix. In this first information report Ex. P. 5, also there is no reference about the incident of rape when the prosecution has come with a specific case that Smt. Munni after hearing the cry reached her house. It is also alleged that the prosecutrix informed Smt. Munni about the commission of rape.
3. On behalf of the prosecution PW 1 Salim, PW 2 Moihudeen Shah, PW 3 Rajendra Prasad, PW 4 Sarju the prosecutrix; PW 5 Manoo the mother of the prosecutrix; PW 6 Gopal PW 7 Prahlad Rai and PW 8 Ganpat Lal the Investigating Officer have been examined.
4. Learned counsel for the appellant argued both the cases simultaneously but it was pointed out that evidence of one case cannot be read in another case and as such both the cases were heard separately.
5. PW 1 is the witness of the site-memo PW 2 has been declared hostile, PW 3 Rajendra Prasad has also been declared hostile. PW 4 is the prosecutrix and PW 5 Smt. Manno is the mother of prosecutrix. Their statements will be considered separately. PW 6 Gopal is the witness in whose presence it is alleged that Smt. Sarju was recovered by the prosecution at the house of Mal Singh accused. PW 7 Prahlad Rai is the SHO and he has recorded the first information report. He also arrested accused Jugraj Singh on 14-8-80 and prepared the arrest memo. PW 8 Ganpat Lal was the Sub-Inspector, Jothwara Police Station and he has investigated the case. This witness has stated that after the investigation of this case, he has added Section 376 in the diary and wanted to submit the charge sheet but the Assistant Public Prosecutor suggested that the case relating to rape is altogether a different case and so the first information report should be lodged and a separate case should be registered on the basis of investigation. He submits that on the basis of investigation he lodged the first information report at the Police Station Jothwara on 7-10-1980.
6. Learned counsel for the appellant has assailed the finding of the court below on the following grounds:
(1) That the evidence of PWs 4 and 5 is untrustworthy and conviction cannot be based on their testimony.
(2) It was also submitted that PW 6 Gopal Lal does not support the prosecution and he has not stated that Smt. Sarju was recovered from the house of Mal Singh. He points out that this witness has not been declared hostile and evidence of this witness should not be discarded. He has also submitted that PW 2 Moihuddeen has not supported the case of the prosecution. He submits that ordinarily the first information report of the rape will be lodged on the same day by the prosecutrix or her mother. It has come on record that the prosecution allegation is that about 12 in noon, accused Mal Singh entered in the house of prosecutrix, committed the rape and after hearing the cry, Rajendra Prasad PW 3 came and informed the mother of prosecutrix. It has also come on record that PW 5 Munni
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