HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Appeal No. 700/2016

Dinesh Sharma S/o Shri Radheshyam Sharma, age – 41 years,

R/o Sahayak Karmchari, Rajasthan Rajya Krida Parishad,

Sawaimansingh Stadium, Jaipur – at present residing as tenant

at Makan No.627, Devi Nagar, New Sanganer Road, Shyam

Nagar, Jaipur.

(At present confined to Central Jail, Jaipur)

----Appellant

Versus

State Of Rajasthan Through PP

----Respondent

For Appellant(s)

:

Mr. Gajendra S. Rathore

For Respondent(s)

:

Mr. Deshraj Gosingha, PP

HON'BLE MR. JUSTICE PANKAJ BHANDARI

Judgment

ORDER RESERVED ON

::

15/09/2021

ORDER PRONOUNCED ON

::

22/09/2021

1.

The appellant has preferred the instant appeal aggrieved by

the judgment and order dated 2.6.2016 whereby the appellant

has been convicted for offence under Section 376 of IPC and

sentenced to 7 years rigorous imprisonment with fine of

Rs.10,000/-, and to further undergo 3 months rigorous

imprisonment on non-payment of fine.

2.

Briefly stated the facts of the case are that an FIR was

lodged through a complaint by Hemant Kumar Yadav, husband of

the victim stating therein that on 20.4.2010, the accused clicked

obscene photographs and made obscene video clips of his wife

and committed rape with her, while she was unconscious.

(2 of 7)

[CRLA-700/2016]

Thereafter, on the threat of making the video clips public, he

raped her at Karan Restaurant, Nehru Bazar, Jaipur; Milan Guest

House, Janta Store, Bapu Nagar and at various other places. Prior

to the present complaint, the accused filed a complaint alleging

therein that he is being blackmailed by the prosecutrix and a

compromise was arrived at between the parties and the SIMs of

the accused as well as complainant’s wife were destroyed. The

present complaint was filed on 11.1.2011 and FIR was registered

on 19.1.2011. The police, after due investigation, submitted the

charge-sheet on 22.6.2013. The accused was charged for offence

under Section 376 IPC. On behalf of the prosecution, 10 witnesses

were examined as PW-1 to PW-10 and Exhibit-P1 to Exhibit-P13

documents were exhibited. Explanation of the accused was

recorded under Section 313 Cr.P.C. in defence. Exhibit-D-1 to

Exhibit-D-3 were exhibited. The trial Court after hearing the

arguments, has convicted and sentenced the accused as aforesaid,

aggrieved by which, the present appeal has been filed.

3.

It is contended by learned counsel for the appellant that as

per the FIR, first instance took place on 20.4.2010. The complaint

was lodged on 11.1.2011 i.e. after an inordinate delay of more

than 8 months. It is also contended that earlier, a complaint was

lodged by the appellant against the complainant’s wife with regard

to blackmailing, in which a compromise took place between the

parties and the SIMs were broken. At that time also, the victim did

not make any complaint with regard to rape.

4.

It is also contended that from the document Exhibit-P11 –

call details, which is produced on behalf of the prosecution, it is

evident that number of calls were made by the victim to the

accused and the duration of call is also for about 20 minutes per

(3 of 7)

[CRLA-700/2016]

call. It is further contended that in the complaint (Exhibit-D-2),

which was lodged by the appellant, there was specific allegation

that the victim is blackmailing and demanding Rs.10,000/-. As

many as 85 WhatsApp messages were also sent by the victim to

the appellant. It is contended that the fact that WhatsApp

messages were sent and received by the appellant is admitted by

the complainant and the victim.

5.

It is contended that present complaint has been lodged to

extort money. It is also contended that except statement of the

victim, there is no other evidence to establish that the victim was

raped by the appellant. It is further contended that no obscene

m