GARG, J. - (1.) THIS appeal has been filed by the State of Rajasthan against the judgment and order dated 16. 5. 1996 passed by the learned Sessions Judge, Merta in Sessions Case No. 25/1994 by which he acquitted the accused respondent of the charge for the offence under Section 376 IPC and another Om Prakash of the charge for the offence under Section 376/34 IPC.
(2.) IT may be stated here that though the learned Sessions Judge acquitted two accused persons, but this Court vide order dated 2. 5. 1997 granted leave to appeal to State of Rajasthan only against the present accused respondent Kalu Ram. The facts giving rise to this appeal, in short, are as follows :- On 5. 5. 1992 at about 9. 00 AM, PW3 Sohanlal lodged a report Ex. P/3 with the Police Station Degana District Nagaur stating inter-alia that on 4. 5. 1992 at about 7. 30/8. 00 PM, his wife Chothi, PW6 (hereinafter referred to as the prosecutrix) was coming to Choukha-Ki-Dhani from Chudiyawas after grinding the wheat and at that time, his son Rameshwar (PW-5) was also with her. It was further stated in the report that when the prosecutrix PW6 Chouthi was coming to Choukha-Ki-Dhani from Chudiyawas, the present accused respondent Kalu and one more person encircled her and after putting her dabba of flour on the ground, they took her to some other place with an intention to commit rape with her and, thereafter, accused respondent Kalu committed rape with the prosecutrix PW-6 Chouthi against her will and also torn her clothes and lehanga and also bite her at some places and, thereafter, prosecutrix PW-6 Chothi made hue and cry, but since there was darkness at that place, nobody came therefore. It was further stated in the report that PW-5 Rameshwar, who was also with the prosecutrix PW-6 Chouthi at that time, ran away from the scene after being frightened and came to his Dhani and told PW-3 Sohanlal that prosecutrix PW-6 Chothi was raped by the accused respondent and when PW-3 Sohanlal went towards the place of occurrence, prosecutrix PW-6 Chothi met him on the way and she also narrated the whole story to him. On this report, police registered the case and chalked out regular FIR Ex. P/10 and started investigation. During investigation, on 5. 5. 1992 lehanga belonging to the prosecutrix PW-6 Chothi was seized through seizure memo Ex. P/2 in presence of witnesses PW-2 Bagdaram and PW-1 Bannaram. The prosecutrix PW-6 Chothi was got medically examined by Dr. Asha, PW-10 on 6. 5. 1992 and her medical examination report is Ex. P/8. PW-10 Dr. Asha found the following four injuries on her body :- (1) Multiple, Fine, Linear abrasions, size about 8cm x 1/8th cm on medical aspect of left forearm. (2) Abrasion 1-1/2cm x 1/4cm on left forearm, about 4" above waist joint. (3) Abrasion 1-1/2cm x 1/2cm on middle of antr aspect of left leg. (4) Abrasion 1x 1/2cm on lateral aspect of left thigh. PW-10 Dr. Asha opined that prosecutrix PW-6 Chouthi was not raped. After usual investigation, police submitted challan against the present accused respondent Kalu and another accused Om Prakash for the offence under Section 376 and 376/34 IPC respectively in the Court of Magistrate, from where the case was committed to the Court of Session. On 29. 11. 1994, the learned Sessions Judge, Merta framed charges for the offence under Section 376 IPC against the present accused respondent and for the offence under section 376/34 IPC against another accused Om Prakash. The charges were read over and explained to the accused persons. They denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under section 313 Cr. P. C. were recorded. In defence, three witnesses were produced by the accused persons. Some documents were also got exhibited in defence by the accused persons. Ex. D/4 is the affidavit alleged to have been sworn-in by the prosecutrix PW-6 Chothi on 11. 9. 1992, in which she has stated that accused respondent did not commit rape with her. Ex. D/5 is the application dated 6. 9. 1993 alleged to have been filed by the prosecutrix PW6 Chothi in the Court of Addl. Chief Judicial Magistrate, Merta stating therein that the report which was lodged by her husband PW-3 Sohanlal did not contain the true version and the same was false one. Ex. D/6 is the Vakalatnama on which there is thumb impression of the prosecutrix PW-6 Chothi and for that DW-3 Gopi Kishan was produced and DW-2 Nemi Chand is the Munshi, who was working with DW-3 Gopi Kishan, Advocate and both have stated that application Ex. D/5 was filed in the Court as per the version given by the prosecutrix PW6 Chouthi and DW-1 Champalal, Notary Public, who has attested the affidavit Ex. D/4 has stated that the contents of that affidavit were read over the explained to the prosecutrix PW-6 Chouthi, who admitted them to be correct. After conclusion of trial, the learned Sessions Judge through his judgment and order dated 16. 5. 1996 acquitted the present accused respondent of the charge for the offence under section 376 IPC and also acquitted another accused Om Prakash of the charge for the offence under Section 376/34 IPC holding inter-alia :- (1) That the most important aspect of the statement of the prosecutrix PW-6 Chothi is that she has nowhere uttered in her statement recorded in Court that sexual intercourse which took place with her by the accused respondent, was against her will or with some force or at the time when sexual intercourse took place with her, she made any hue and cry. (2) That the version given by the prosecutrix PW-6 Chothi in her statement recorded in Court did not tally with the version given by her husband PW3 Sohanlal in the report Ex. P/3 on the points :- (i) That as per the statement of the prosecutrix PW-6 Chothi recorded in Court, the accused respondent had sex with her thrice, but in the report Ex. P/3, the allegation is that accused respondent committed rape with her only at one time. (ii) That in cross-examination, prosecutrix PW-6 Chothi has admitted that because of shame and self-instinct, she did not tell the story to her husband PW-3 Sohanlal about sexual intercourse, which took place with her thrice as she was afraid of the fact that if she would narrate the whole story to her husband PW- 3 Sohanlal, he would best her and she has further admitted that she told her husband PW-3 Sohanlal that she was only beaten by the accused respondent. But, as per the statement of PW-3 Sohanlal and the report Ex. P/3, when he went towards the place of occurrence, prosecutrix PW6 Chothi met him on the way and on the way, she told him whole incident that she was raped by the accused respondent. (iii) That PW-3 Sohanlal states in his statement recorded in Court that he was told by his son PW5 Rameshwar that accused respondent had raped prosecutrix PW-6 Chothi, but in his statement recorded in Court, PW5 Rameshwar states that only scuffle took place between his mother prosecutrix PW6 Chothi and the accused respondent. (iv) That in her statement recorded in Court, prosecutrix PW-6 Chothi states that she received injuries because of dragging, but the fact that that she was dragged and because of dragging she received injuries is not mentioned in the report Ex. P/3. (v) That in the report Ex. P/3, it is mentioned that accused respondent bite her at various places, but in her statement recorded in Court, that fact is not mentioned by the prosecutrix PW-6 Chothi. (vi) That prosecutrix PW-6 Chothi has stated in her statement recorded in Court that she was dragged, but seeing the site plan Ex. P/1, no such signs are found. (vii) That the statement of prosecutrix PW6 Chothi that she was dragged and because of dragging she received injuries becomes doubtful as in the report Ex. P/3, there is no mention that she was dragged and because of dragging she received injuries. (viii) That prosecutrix PW-6 Chothi has stated in her statement recorded in Court that on the spot flour spread, but this fact is not found in the site plan Ex. P/1. (ix) That prosecutrix PW6 Chothi admits that when she was being dragged by the accused respondent, a Tractor passed through on the way and many persons were sitting in the Tractor, but she did not say that she made any hue and cry seeing many persons in the Tractor. (3) That in the above circumstances, the learned Sessions Judge came to the conclusion that the statement of the prosecutrix PW6 Chothi was not reliable and trustworthy. (4) That the learned Sessions Judge further observed that prosecutrix PW6 Chothi was got medically examined on 6. 5. 1992 and PW10 Dr. Asha, who examined prosecutrix PW-6 Chothi for the purpose of ascertaining whether rape was committed with her or not, has stated that she received four injuries and out of four injuries, there were two abrasions on left hand and two abrasions on left thigh. PW-10 Dr. Asha has further stated that these injuries might be self-inflicted one and since they were superficial one, the same could have been caused by another person. PW- 10 Asha has categorically stated that prosecutrix PW6 Chothi was not raped. (5) That the learned Sessions Judge has further observed that since prosecutrix PW6 Chothi mentioned her age as 42 years, therefore, if a lady of matured age would have been raped forcibly, some sort of injuries on private part and other parts of her body would have been found, but such types of injuries were not found on the body of the prosecutrix PW6 Chothi. In these circumstances, the learned Sessions Judge came to the conclusion that medical evidence was not sufficient to corroborate the prosecution case on the point of rape. (6) That so far as the FSL Report Ex. P/9 where on lehanga of prosecutrix PW6 Chothi, spot of semen was found, is concerned, the learned Sessions Judge observed that since alleged incident took place on 4. 5. 1992 and the report Ex. P/3 was lodged on 5. 5. 1992, therefore, it cannot be ruled out that spot of semen would have been found on her lehanga as her husband PW3 Sohanlal might have sex with her during that night. (7) That alleged incident took place on 4. 5. 1992 and the report Ex. P/3 was lodged on 5. 5. 1992 and, thus, there is also delay in lodging the report Ex. P/3. (8) That after discussing the above evidence, the learned Sessions Judge considered the defence evidence and he has come to the conclusion that DW1 Champalal attested the affidavit Ex. D/4 of the prosecutrix PW6 Chothi and since prosecutrix PW6 Chothi has admitted that she put thumb impression on Ex. D/4 and in that affidavit Ex. D/4, there is a clear mention of the fact that rape was not committed with her by the accused respondent and she received injuries at the time when she was riding in Chhakra and from this point of view also, the learned Sessions Judge came to the conclusion that whole prosecution case becomes doubtful. (9) That from the statements of DW-2 Nemichand and DW3 Gopi Kishan, it appears that the application Ex. D/5 was filed by the prosecutrix PW6 Chothi in the court, in which it has been clearly mentioned that the report Ex. P/3 was false one and, therefore, this defence evidence clearly negatives the case of the prosecution on the point of rape. (10) That learned Sessions Judge has further come to the conclusion that from the evidence on record, it cannot be said that accused respondent had sex with the prosecutrix PW6 Chothi against her will. He has further come to the conclusion that if for the sake of argument it is held that accused respondent had sex with the prosecutrix PW6 Chothi, that was with her consent. Aggrieved from the said judgment and order of acquittal dated 16. 5. 1996 passed by the learned Sessions Judge, Merta, this appeal has been filed by the State of Rajasthan. In this appeal, it has been argued by the learned Public Prosecutor that the findings of acquittal recorded by the learned Sessions Judge are erroneous and perverse one. The learned Sessions Judge erred in not believing the statement of the prosecutrix PW-6 Chothi and from the statement of the prosecutrix PW-6 Chothi and other evidence on record, a case for the offence under section 376 IPC is clearly made out against the accused respondent. Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal be set aside and the accused respondent be convicted and sentenced for the offence under Section 376 IPC. On the other hand, the learned counsel appearing for the accused respondent supported the impugned judgment and order of acquittal passed by the learned Sessions Judge. He has further submitted that the findings of findings of acquittal recorded by the learned Sessions Judge are based on correct appreciation of evidence available on record and therefore, they do not call for any interference by this Court in the appeal filed by the State of Rajasthan. I have heard the learned Public Prosecutor and the learned counsel appearing for the accused respondent and perused the record of the case.
(3.) THE question that arises for consideration is whether the above mentioned findings of acquittal recorded by the learned Sessions Judge, which are based on correct evaluation of all aspects of evidence, are liable to be confirmed one or not. Before proceeding further, it may be stated here that in Ajit Savant Majagavi vs. State of Karnataka (1), the Hon'ble Supreme Court has held that in an appeal against the order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction, but some guidelines have further been formulated by the Hon'ble Supreme Court holding that if the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted and presumption of innocence in favour of accused should also be kept in mind and if the order of acquittal is based on reasonable and plausible grounds, the High Court should not disturb it. The Hon'ble Supreme Court in the latest decision in Kalyan and ors. vs. State of UP (2), has held that while hearing appeal against the order of acquittal, the High Court is fully empowered to review the evidence, but it should be slow in disturbing the findings of fact arrived at by the trial court. ;