K. S. LODHA, J. - (1.) ACCUSED Labh Chand has been convicted under sections 392 and 342 IPC by the learned Sessions Judge, Churu by his Judgment dated 16. 3. 79. He has been sentenced to five years rigorous imprisonment and a fine of rupees one thousand (Rs. 1,000/-) under the first count and to 6 months R. I. under the second count. He has, therefore, come up in appeal.
(2.) THE prosecution story briefly stated is that Smt. Manju wife of Chhotulal, aged about 19 years had come to her father-in-law's place from her father's place at about 8. 00 P. M on 7. 11. 1977. On this her mother in - law rebuked her and told her that she should not have come at that time of twilight, Manju got annoyed and after cleaning the utensils left her father-in-law's house and went towards Gandhi Vidhya Mandir. On this Babulal, elder brother of her husband went in search of Manju and one Noorekhan Chowkidar who met him at the Gandhi Vidhya Mandir told him that he had seen some people forcibly putting a woman on a truck and the woman was crying. He also told him that the truck had gone towards Ganganagar. On receiving this information Babulal went to Police Station Sardarsahar and lodged a report in this respect In that report he also mentioned that Smt. Manju was wearing a gold locket stand with white and red pearls and she had also golden ring in one hand and a silver ring in the other. He also expressed his fear in that report that 'truckwala' had taken away Manju with the intention of having forcible intercourse with her. On this police registered a case under section 366 I. P. C, and started investigations. This report was lodged at about 11. 30 in the night, the police set out in search of the accused as also Smt. Manju. However it appears that Smt. Manju was made to a light from the truck on the way and she returned to her father's house in the night but she does not appear to have informed of this incident to any one at her father's house nor to the Chhakarewala (camel cart driver) in whose cart she had returned to her father's place. According to the case of the prosecution the police came across one Laxmansingh from whom they came to know that the present accused Labh Chand as well as Ram Ratan and Prithviraj alias Vijay were the persons who had taken Smt. Manju forcibly in the truck and. that Labh Chand had forcibly snatched the gold locket and silver and gold rings from Smt. Manju. In pursuance of this information the police further went in search of these persons and arrested Ram Ratan, Prithviraj alias Vijay and Labh Chand. Labh Chand was arrested on 8. 11. 77 at Hanumangarh and at the time of his arrest he was found to be wearing the gold and silver rings belonging to Smt. Manju and was also carrying her locket in the pocket of his pant. THEse ornaments were, therefore, taken possession of by the police. It further, appears that Smt. Manju was examined by the police on 9. 11. 77 and Smt: Manjn and some of the accused persons were subjected to a medical examination in order to find out whether Smt. Manju had been subjected to sexual intercourse. After completion of the investigations in which the accused were also put up for identification so also the ornaments recovered from Labh Chand, a challan was put up against 3 persons namely Labh Chand, Ram Ratan and Prithviraj alias Vijay. Vijay absconded while the matter was pending before the learned Sessions Judge where it was committed. Charges u/sections 366, 392/ 394 and 342 I. P. C. were framed against Labh Chand and under Sections 366 and 342 against Ram Ratan, they pleaded not guilty and claimed to be tried. On trial the learned Sessions Judge, Churu, by judgment dated 16. 3. 1979 acquitted Ram Ratan of both the charges but convicted Labh Chand under Sections 392 and 342 I. P. C. and sentenced him as aforesaid, hence this appeal. I have heard the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record. It is urged by the learned counsel for the appellant that the story put forward by the prosecution is not at all convincing and the evidence does not established any of the charges against the appellant beyond reasonable doubt. He urged further that the conduct of Smt. Manju is wholly unnatural and she cannot be treated as a reliable witness. His further contention is that merely on the basis of the recovery of the ornaments from Labh Chand he could not have been convicted under Sections 392 and 342 I. P. C. The learned P. P. has, however, supported the judgment of the learned Sessions Judge. I have carefully considered the rival contention, it may at once be stated that as urged by the learned counsel for the appellant the prosecution story does not appear to be convincing and reliable and the conviction of the appellant for both the offences does not appear to be well founded. So far as the presence of the accused Labh Chand on the truck and his being one of the persons who are alleged to have forcibly put Smt. Manju on the truck goes, the learned Sessions Judge has not relied upon the identification of the accused Labh Chand by Smt. Manju before the police, he has however relied upon the testimony of Laxman P. W. 2 who had already been declared hostile by the prosecution and as a matter of fact at one stage he himself was being suspected to be a co-accused. Against Laxmansingh a suggestion had been thrown by the learned counsel for the accused before the trial Court that he had been given a go bye and has been set free because he happened to be a son of Dy. Superintendent of Police who was at that time posted at Churu itself and under whose jurisdiction Sardarsahar the place of the incident fall. Be that as it may, I cannot agree with the learned Sessions Judge that the statement of Laxman Singh P. W. 2 who had been declared hostile may be relied upon for establishing the presence of the accused Labh Chand and his participation in the offence specially in the circumstances mentioned above. He has further found the statement of Mst. Manju to the effect that her ornaments had been removed forcibly by Labhchand reliable because according to him this fact stands corroborated by the recovery of the ornaments from the person of Labh Chand when he was arrested on 8. 11. 1977. He has further found support to this statement on account of the identification of the ornaments by Smt. Manju in the Identification Parade and so far as the recovery of the ornaments from the person of Labh Chand goes, he has placed implicit reliance on the evidence of Shri Ramjilal P. W. 8 Investigating Officer and Shri Vijay Singh P. W. 7 and Motbir. Having perused the statement of these witnesses including Smt. Manju as also her husband's elder brother Babulal, I am clearly of the opinion that the evidence is not at all reliable and it appears that the prosecution has come forward with a manipulated version of the incident. The incident is said to have taken place on 7. 11. 1977 at about 8. 30 P. M. near Gandhi Vidhya Mandir, Sardarsahar whereas accused Labh Chand was arrested at about 8. 30 P. M. on 8. 11. 77 i. e. about 24 hours after the incident, it is hard to believe that having committed the offence as alleged by the prosecution Labh Chand would be living and owning about wearing the rings of Smt. Manju in his fingers and carrying the gold locket in the pocket of his pant so that it may be quite easy for the police to locate him and arrest him. Had he really been the culprit who had removed these ornaments from the person of Smt. Manju or had received them from some body else knowing them to be stolen property, he would not certainly have exhibited them in this manner but would have either hidden them somewhere or must have disposed them or atleast entrusted to some body else. Not only this, the manner in which he had been arrested is also not free from doubt. According to Shri Ramjilal the information about the implicitly of the accused Labh Chand was given by Laxman Singh P. W. 2, Laxmansingh accompanied him in order search Labh Chand. There were two motbirs said to be present at the time when Labh Chand was arrested at Hanumangarh, one was Shri Hasam Khan P. W. 5 who had been declared hostile and does not support the prosecution. So far as the recovery of the ornaments are concerned and the only other Motbir was Vijaysingh P. W. 7 who of course supported the story of the prosecution regarding the arrest of and recovery of the ornaments from Labh Chand but a careful perusal of the statement of this witness goes to show that he is a highly interested witness being a very close relation of Smt. Manju and had been with the police throughout when the search for Manju started. He admits that when the police went from Sardarsahar to Hanumangarh in the Jeep he was the only person from the family of Smt. Manju who had accompanied them. He also admits that after the arrest of Labh Chand he had come back with the police in the same jeep. In these circumstances, he cannot be said to be an independent witness of the locality where Labh Chand was arrested, Shri Ramjilal A. S. I, does not indicate exactly on what place at Hanumangarh Labhchand was arrested i. e. whether he was found roaming about or was staying at some house or hotel etc. He also does not appear to be a reliable witness, in as much as, although he was posted at Sardarsahar as A. S. I, he shows his ignorance as to who was the Dy. S. P. at Hanumangarh those days. He also expressed his ignorance whether Shri Chiman Singh, Dy. S. P. was posted at Hanumangarh during those days or not. Not only this, there is a serious contradiction between the statement of Shri Ramjilal P. W. 8 and Shri Vijay Singh P. W. 7 regarding the fact of sealing of the ornaments which are said to have been recovered from Labh Chand. Shri Ramjilal states that the ornaments recovered from Labh Chand were sealed at the spot itself i. e. at Hanumangarh whereas Shri Vijay Singh states that the recovery Memo Ex. P 9 was got signed by him at Sardarsahar at the time when the ornaments were sealed. In these circumstances the recovery of the ornaments from Labh Chand becomes highly suspicious.
(3.) THE statement of Smt. Manju that she had been robbed of these ornaments by Labh Chand after she was forcibly made to board the truck also appears to be highly unreliable and her conduct appears to be most unnatural. In the first place she says that when she reached her father-in-law's house the only conflict with her mother-in-law was on account of the fact that she should not have returned at twilight, she should have either come a little earlier or should have come a little later, such a advice by the mother-in-law could hardly be a reason for Smt. Manju to leave her husband's house. Even if that was so, she would have gone to,her parents house but she did not do so and proceeded towards the Gandhi Vidhya Mandir. Further, when she was near the Gandhi Vidhya Mandir and a truck approached her and she was made to board it by three persons. She does not appear to have put up much resistance otherwise some injuries would certainly have been caused to her. Her medical examination does not disclose any injury on her person. THEn according to the prosecution atleast three persons had seen her being forcibly made to board the truck namely Shri Noorekhan Chowkidar and two other persons who according to Noorekhan had just met him and told him that they had also seen a woman being forcibly taken on the truck but strangely enough none of these three persons appear to have come to the rescue of the helpless woman nor raised any hue or cry. Those two other persons have not been produced. Noorekhan PW. 4 does not say that he went to the Police Station to report the incident seen by him and appears to be content with asking those two strangers to report the matter to the police without caring to know who those two persons were. It was only later when Babulal P. W. 3, the elder brother of Manju's husband came there then he informed him of the incident. Reverting to the statement of Smt. Manju, it may further be mentioned that after the ornaments had been snatched from her, she made to alight from the truck and then she came to her father's place in a camel-cart. But strangely enough she did not mention this incident either to the driver of the camel Cart nor to any one at her father's place nor did she go to her father-in-law's place to inform them of this incident and to lodge a report before the police. Not only this her statement was recorded by the police on 9. 11. 1977 after two days of the incident when she is alleged to have reached back her father's place on the night of 7. 11. 1977 itself. The prosecution story is, further, rendered to be highly doubtful on account of the fact that while Smt. Manju had stated in her statement on 9. 11. 1977 that nobody in the truck had tried to molest her still she was sent for medical examination for suspected rape, as would be clear from the Medical Report Ex. P. 14. Labh Chand was also subjected to medical examination in order to find out whether he was capable of performing sexual intercourse on 9. 11. 77. All this goes to show that the prosecution has put forward a cock and bull story hiding the true facts and in these circumstances no reliance can be placed upon such story. ;