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Rajasthan High Court Verdict in 1991 Criminal Case: Conviction Changed from Attempt to Rape to Assault

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Case title: Suwalal VS. The State Of Rajasthan  

Case no : S.B. Criminal Appeal No. 272/1991

Order on: 13/05/2024

Qoram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Fact of the case:

The complainant (PW-3) lodged a report at the Police Station, Todaraisingh, District Tonk, alleging that his six-year-old granddaughter, referred to as “D,” was drinking water at a Pyau (Water Booth) near Dharamshala when the accused, Suwalal, forcefully took her into the Dharamshala around 8:00 PM with the intent to commit rape. Villagers intervened upon hearing the girl’s cries. Based on this report, Crime Report No.40/1991 was registered for the offence under Section 376/511 IPC. Following the investigation, a charge sheet was filed against the appellant for the aforementioned offence, and charges were framed by the Trial Court, to which the appellant pleaded not guilty. The prosecution presented 7 witnesses and 5 documents. The appellant’s statements were recorded under Section 313 Cr.P.C. On 03.07.1991, the Sessions Judge, Tonk, convicted Suwalal under Section 376/511 IPC and sentenced him to 3 years and 6 months of rigorous imprisonment with a fine of Rs.100, with an additional 3 months of simple imprisonment in default of payment. 

Issues Framed by the Court

  • Whether the appellant, Suwalal, committed the offence of attempt to rape under Section 376/511 IPC as per the allegations.
  • Whether the facts and evidence support the conviction under Section 376/511 IPC or if a different section of the IPC is more appropriate.

Legal provisions:

Section 376/511 IPC: Deals with the attempt to commit rape. Section 376 covers the punishment for rape, and Section 511 deals with the punishment for attempting to commit offences punishable with life imprisonment or other punishments.

Section 354 IPC: Apply to to assault or criminal force to woman with intent to outrage her modesty.

Contentions of Appellant:

The appellant’s counsel argued that the allegations made by the prosecutrix did not constitute an attempt to rape under Section 376/511 IPC. The main accusation was that the appellant undressed himself and the prosecutrix, which does not fulfill the legal criteria for an attempt to rape. The counsel highlighted that there was no medical evidence connecting the appellant to an attempt to rape the prosecutrix. The counsel contended that the Trial Court erred in its judgment by convicting the appellant under Section 376/511 IPC without sufficient evidence of an attempt to rape.

Contentions of Respondents:

The respondent ( Public Prosecutor ) argued that the prosecutrix’s statements clearly indicated that the appellant undressed both himself and the prosecutrix, which were specific actions pointing towards an attempt to rape. The counsel noted that the appellant did not cross-examine the prosecutrix (PW-2) to challenge her testimony, thereby suggesting that her statements should be considered credible and sufficient to establish an attempt to rape. The Public Prosecutor maintained that the evidence on record and the testimony of the prosecutrix justified the conviction under Section 376/511 IPC.

Court analysis& Judgement:

In this case, The court examined the FIR and statements of witnesses, particularly focusing on the prosecutrix (PW-2) and her grandfather (PW-3). The prosecutrix’s account that the appellant undressed her and himself was scrutinized. However, it was found that these actions did not constitute an attempt to rape as defined under Section 376/511 IPC. The court clarified that for an act to be considered an attempt to rape under Section 376/511 IPC, it must go beyond mere preparation and constitute a direct attempt to commit rape. The court determined that the actions of the appellant, forcefully taking the prosecutrix into the Dharamshala and undressing, amounted to assault with intent to outrage modesty under Section 354 IPC. The court emphasized that the appellant’s actions had the intention or knowledge that the modesty of the prosecutrix was likely to be outraged, fitting the criteria for Section 354 IPC. The court considered the appellant’s age at the time of the incident (below 25 years). The duration the appellant had already spent in jail was noted (approximately 2½ months). The court acknowledged the long duration since the incident (over 33 years), which had likely caused mental, physical, and economic strain on the appellant. Given the significant lapse of time, the court found it inappropriate to send the appellant back to jail.

Therefore, the  court decided  that the appellant’s conviction was altered from Section 376/511 IPC (attempt to rape) to Section 354 IPC (assault or criminal force with intent to outrage modesty). The findings of the learned Sessions Judge, Tonk, were modified accordingly. In accordance with Section 437-A Cr.P.C., the appellant was directed to furnish a personal bond of Rs.50,000/- and one surety of a similar amount within three months. This bond would ensure the appellant’s appearance before the Supreme Court if an appeal was filed against this judgment. The bonds would remain effective for six months. The trial court’s record was ordered to be sent back immediately.

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Rajasthan High Court Granted probation to convicted appellants in an attempted murder case

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 Case title: Unknow VS State of Rajasthan

Case no.: S.B. Criminal Appeal No. 483/1993

Dated on:  February 19th 2024

Quorum:  Hon’ble. MR Justice GANESH RAM MEENA

FACTS OF THE CASE

The present criminal appeal has been preferred by the accused-appellants against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Special Judge, Prevention of Scheduled Castes/ Scheduled Tribes, Prevention of Atrocities, Jaipur (for short ‘the trial Court’) in Sessions Case No.88/1990. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Fine of Rs.100/- each and in default of payment of fine each of the accused appellant has to undergo 15 days imprisonment. On filing of appeal, the sentence awarded to the accused appellants was suspended vide order dated 13.12.1993 and they were released on bail.

ISSUES

  • Whether the reformation of the accused-appellants and their peaceful conduct post-bail support the argument that they do not pose a risk to public safety and thus should be granted probation?
  • Whether the objections raised by the learned Public Prosecutor, opposing leniency and probation due to the nature and manner of the offense, should preclude the granting of probation to the accused-appellants?
  • Whether the prolonged duration of the trial and the resultant mental agony and harassment faced by the accused-appellants since 1993 warrant leniency in sentencing?
  • Whether the conviction and sentence of the accused-appellants by the trial court under Sections 307 and 323 read with Section 34 of the Indian Penal Code (IPC) were valid and justified?
  • Whether the accused-appellants are entitled to the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, considering their age, lack of criminal antecedents, and behaviour post-conviction?

 LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 307 IPC: This section pertains to the offense of attempt to murder. It deals with the intention or knowledge of committing murder, and the actions taken in furtherance of that intention. The maximum punishment under this section is imprisonment for up to 10 years, and if the act causes hurt, the punishment can extend to life imprisonment, along with a fine.

Section 323 IPC: This section addresses the punishment for voluntarily causing hurt. The punishment can be imprisonment for up to one year, or a fine up to one thousand rupees, or both.

Section 34 IPC: This section pertains to acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act as if it were done by him alone.

Probation of Offenders Act, 1958

Section 4: This section allows the court to release certain offenders on probation of good conduct instead of sentencing them to imprisonment. The court can use this provision for offenders who have committed offenses not punishable with death or life imprisonment, and if the court deems it appropriate after considering the offender’s age, character, and the circumstances of the case.

CONTENTIONS OF THE APPELLANT

Mr. V.R. Bajwa, Senior Counsel assisted by Mr. Amar Kumar and Ms. Savita Nathawat, appearing for the accused appellants instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellants under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act of 1958’). Counsel further submits that except the present case, no case has been registered against the accused-appellants. Counsel further submits that the accused appellants are living peacefully in the society without there being any criminal antecedents to their discredit. Senior Counsel further submits that the accused-appellants have faced trial for about three years and against the impugned judgment, they preferred the appeal in the year, 1993. Thus, from the last 33 years, the accused-appellants are facing mental agony and harassment because of pendency of criminal case registered against them. Counsel further submits that the maximum sentence under Section 307 of IPC is 07 years but in the present case, the accused appellant No.1 Nawal Kishore has been convicted for offence under Section 307 of IPC and accused appellant No.2-Rajesh has been convicted for the offence under section 34 read with section 307 IPC and they been sentenced to undergo five years Rigorous Imprisonment and for the offence under section 323 read with section 34 IPC a fine of Rs.100/- has been imposed upon each of them. Senior Counsel further submits that the accused appellant No.1 is 59 years of age and the accused appellant No.2 is 56 years of age. Thus, taking into consideration the aforesaid facts, the accused-appellants may be given the benefit of probation under the provisions of the Act of 1958.

CONTENTIONS OF THE RESPONDENTS

Learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellants and submits that looking to the allegations and the manner in which the incident took place, the appellants are not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958. Considered the submissions made by the Senior Counsel appearing for the appellants as well as the learned Public Prosecutor. Learned trial Court while considering the issue of granting leniency to the accused appellants, has rejected their prayer in regard to the leniency. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct.

COURT’S ANALYSIS AND JUDGEMENT

The Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. The main object of sentencing a convicted person is to bring in him certain character reformation and to keep him away from the society so as to see that the impact of his criminal character does not put any adverse impact on any other person. In the present case, after conviction of the accused appellants, their sentence was suspended and they were release on bail vide order dated 13.12.1993. Since after their release on bail, they are living in the society peacefully without there being any criminal antecedents to their discredit. There is no bar under law to extend the benefit of probation to convict of above 21 years age. After taking into due consideration the legislative intent of the Act and the decision as referred in above paragraphs, this Court deems it appropriate to extend the benefit of probation to the appellants under Section 4 of the Act of 1958. the present appeal is partly allowed. While maintaining the conviction of the present appellant No.1- Nawal Kishore for the offence under Section 307 of IPC and of accused appellant No.2-Rajesh for the offence under section 34 read with section 307 IPC and of both the accused appellants under section 323 read with section 34 IPC, as recorded by the learned Trial Court in the impugned judgment, this Court interferes only with the sentence part of the said judgment and directs that the appellants shall be released on probation under Section 4 of the Act of 1958 upon their furnishing a personal bond in a sum of Rs. 50,000/- each and two sureties in the sum of Rs. 25,000/- each to the satisfaction of the learned Trial Court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants are allowed two months’ time to furnish the bail bonds, sureties and undertaking as ordered above. The appellants are on bail. They need not to surrender. Their bail bonds stand cancelled accordingly. The Registry is directed to send back record of the case to the trial court forthwith.

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Judgement Reviewed by – HARIRAGHAVA JP

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Rajasthan High Court Guidelines on Panchayat Official Transfers: Impact of Section 89(8A) of Panchayati Raj Act

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Case title: Kera Ram VS. The State Of Rajasthan ORS.  

Case no : S.B. Civil Writ Petition No. 2909/2024

Order on: 30/04/2024

Qoram: HON’BLE MR. JUSTICE ARUN MONGA

Fact of the case:

The petitioner, Kera Ram, is currently serving as a Gram Sewak cum Village Development Officer at Panchayat Samiti, Sarnau. He was transferred to Panchayat Samiti, Bagora via an order dated 19.02.2024 issued by the Chief Executive Officer (CEO) of Zila Parishad, Jalore. A large number of panchayat officials, including Village Development Officers/Assistant Administrative Officers/Gram Sewak/LDC/Junior Assistants/Junior Technical Assistants/Gram Vikas Adhikari, have been transferred through various orders issued by the State Government, CEOs of respective districts, and other officials like BDOs/VDOs. The petitioner challenges the legality of these transfer orders, alleging violations of the Rajasthan Panchayati Raj Act, 1994, and the Rules framed thereunder. Kera Ram claimed that the Chief Executive Officer of the Zila Parishad and other officials did not follow the proper procedures and guidelines for transferring employees within the Panchayat system.

Issues Framed by the Court

  • Does the omission to mention a specific location of Gram Panchayat for a Panchayat Samiti official’s new duty station invalidate a transfer order?
  • Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?
  • Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad?
  • Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?
  • Is the recommendation of the District Administration and Establishment Committee necessary for the transfer of an employee within a Panchayat Samiti or Zila Parishad by the Chief Executive Officer of a Zila Parishad?
  • What is the legislative intent and scope of the State’s power under the non-obstante clause in Section 89(8A) of the Panchayat Raj Act, 1994, as amended by Act No. 23/1994 in Rajasthan?

Legal provisions:

Constitution of India:

Article 243A – Gram Sabha: Empowers the Gram Sabha to exercise powers and perform functions at the village level as determined by the State Legislature.

Article 243B – Constitution of Panchayats: Mandates the constitution of Panchayats at the village, intermediate, and district levels in every State, except those with populations below 20 lakhs, where intermediate level Panchayats may not be constituted.

Article 243C – Composition of Panchayats: The composition of Panchayats shall be determined by the Legislature of the State.

Article 243G – Powers, Authority, and Responsibilities of Panchayats: Empowers the Legislature of a State to endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government.

Article 243H – Powers to Impose Taxes by, and Funds of, the Panchayats: The State Legislature may authorize Panchayats to levy, collect, and appropriate taxes, duties, tolls, and fees.

Panchayati Raj Act, 1994:

Section 9 – Constitution of Panchayats

Section 10 – Creation of Panchayat Samitis

Section 51 – Functions of Panchayat Samiti

Section 89(8A) – Transfer of Employees

Rule 289: Procedures for transfer within a district under Panchayat Samiti or Zila Parishad

Contentions of Appellant:

The petitioner argues that the CEO of Zila Parishad is not legally competent to pass a transfer order for a Village Development Officer as per the provisions of the Rajasthan Panchayati Raj Act, 1994, or the Rules framed thereunder. The transfer order lacks prior approval or consent from the Samiti through its Pradhan, which is mandatory under Section 89(8)(ii) of the Act of 1994. The District Establishment Committee (DEC) of Zila Parishad is the competent authority to pass transfer orders, which should be based on the request of the Panchayat Samiti through its Pradhan. Petitioner also argued that the transfer does not reflect any administrative exigency as no one has been posted in the petitioner’s place. The transfer order does not specify the particular Gram Panchayat to which the petitioner should report, leaving him in a state of suspense. The transfer orders passed by the State suffer from non-application of mind as many officials have been transferred without being assigned any specific place of posting. Transfer protocols must be followed to avoid misuse of power, including recommendations from the DEC and prior consultation with the Pradhan or Pramukh. Some transfer orders were passed during a period when there was an absolute ban on transfers, violating administrative instructions issued by the Chief Secretary.

Contentions of Respondents:

The Respondent here is State Government retains exclusive right to transfer Panchayati Raj officials anywhere in the State. The State instruct CEOs or BDOs to carry out such transfers as per Rules 89 and 290. The State’s transfer orders merely select the officials to be transferred, leaving the task of assigning specific transferred locations to the CEOs. Under sub-section 8A of Section 89, the State has the power to transfer any panchayat officials without requiring prior consultation with the Pradhan or Pramukh or a recommendation from the DEC. Consultation with the Pradhan or Pramukh is directory, not mandatory. The term “consultation” implies soliciting input rather than requiring consent. Section 89(8)(ii) differentiates between fresh appointments and routine postings. The sub-section concerns new appointments, not routine postings. Most transfer orders specify the place of posting, and only a few exceptions exist where this was not mentioned, thus not warranting interference by the court.

Court analysis& Judgement:

The court emphasized the constitutional direction for decentralized governance and the empowerment of Panchayati Raj institutions (PRIs) to manage local affairs autonomously. The 73rd Constitutional Amendment supports this decentralized system. The court pointed out that while the State Government has oversight powers, it should not interfere excessively in the routine administrative affairs of PRIs, thereby respecting their autonomy and the constitutional scheme of self-governance. The court stressed the importance of following procedural norms for transfers, including the necessity of consulting relevant Panchayat officials (Pradhans or Pramukhs) to maintain transparency and accountability. The court examined the powers under Section 89(8A) of the Panchayat Raj Act, which allows the State Government to transfer Panchayati Raj officials without following other procedural safeguards. However, the court maintained that this power should be exercised sparingly and only in cases of administrative exigency. The court repeated that adherence to established judicial precedents could avoid needless litigation.

The court framed specific guidelines for the transfer of Panchayati Raj officials to ensure clarity and prevent arbitrary decisions, this are; Panchayat officials recruited for district-cadre posts should not be transferred outside their respective districts routinely, except where permissible under the Act and Rules. Transfers must be made only after consulting the Pradhan of the Panchayat Samiti. Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad. The State can make transfers without consulting the Pradhan or the Pramukh. The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district. The State can transfer officials from one Zilla Parishad to another, from a Panchayat Samiti to a Zilla Parishad, or within the same Zilla Parishad or Panchayat Samiti, with or without consultation of Pradhan or Pramukh. Consultation is not required for transfers made under this section, which gives the State Government the power to stay or cancel transfer orders made under Section 89(8) or associated rules. The Chief Executive Officer/Vikas Adhikari must execute transfer orders passed by the State Government. They do not have any independent power to pass transfer orders. The Committee is empowered to exercise transfer powers in accordance with Government policies and directions, ensuring that the Panchayati Raj institutions’ constitutional status is upheld. Inter-district transfer orders by other Departments must obtain consent from the Panchayati Raj department. ‘Consent’ implies a voluntary, informed decision, and must be explicitly stated through a conscious decision-making process. The court allowed the writ petitions, set aside the impugned transfer orders, and directed the respondents to pass fresh orders if necessary, based on administrative exigencies and within the parameters of the guidelines issued by the court.

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Rajasthan High Court Upholds Special Judge’s Order: Prosecution Sanction in Anti-Corruption Case to be Reconsidered

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Case title: Chetram S/o Arjun Lal, R/o Anta pada Tehsil Laxmangarh Distt. Alwar (Raj. VS State of Rajasthan,

Case no.: Criminal Miscellaneous (Petition) No. 4934/2020

Dated on:  February 28th 2024

Quorum:  Hon’ble. MR Justice SUDESH BANSAL

FACTS OF THE CASE

The criminal misc. petition under Section 482 Cr.P.C, petitioner-accused has prayed to quash the order dated 25.04.2019 passed by the Special Judge, Prevention of Corruption Cases, Alwar, dismissing an application filed by Anti-Corruption Bureau (hereinafter for short “ACB”) under Section 169 Cr.P.C, in connection with FIR No.248/2016 registered at Police Station Anti-Corruption Bureau, Jaipur for offences under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter for short “the PC Act”) & Section 120-B IPC, and has prayed to grant the application, allowing to discharge/release the petitioner accused in the present criminal case, on the ground of refusal of prosecution sanction. One Tej Singh S/o Rajaram Yadav made a written report before the ACB, Alwar on 23.08.2016 that he was the Secretary of milk collection center in Harijan Basti, but same has been closed by the concerned officers of the Alwar Dairy, therefore, he is desirous to open a new milk collection centre in Village Luhadera. On making inquiry in this regard, he came to know that permission to open a new milk centre is granted by Sh. Bannaram Meena, Chairman of the Alwar Dairy, and he accepts application only of those persons, who pay Rs.50,000/- additionally. He stated in the report that Sh. Bannaram Meena himself does not take this amount directly, but his Personal Assistant & LDC, Sh. Chetram (petitioner herein) receives such amount from the party. He alleged that Chetram asked him to pay the amount of gratification of Rs.50,000/-, for granting permission to open a new milk collection centre, but since he does not want to pay the bribe to Sh. Bannaram Meena, Chairman and Sh. Chetram (LDC-cum-PA), hence a legal action be taken against them. It appears from record that after thorough investigation and on the basis of red-handed trap, the ACB found the aforesaid offences proved against Sh. Chetram and Sh. Dhanni Ram Yadav. The role of Sh. Bannaram Meena, Chairman of Alwar Dairy, was noticed to be suspicious, however, investigation against him was postponed, but later on, charge sheet was filed by the ACB only against Dhanni Ram Yadav.

ISSUES

  • whether the impugned order warrants interference by the High Court in exercise of inherent powers under Section 482 Cr. PC?
  • whether the Special Judge, Prevention of Corruption Cases, Alwar acted well within its jurisdiction, to issue directions to the ACB as indicated above, while dismissing the application filed by the ACB under Section 169 Cr. PC?

 LEGAL PROVISIONS

Section 482 of the Criminal Procedure Code (Cr. PC): This section grants inherent powers to the High Court to make orders necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice.

Section 169 of the Criminal Procedure Code (Cr. PC): This section allows the investigating officer to release the accused when there is insufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate.

Section 19 of the Prevention of Corruption Act, 1988 (PC Act): This section mandates prior sanction for the prosecution of a public servant for corruption charges. Without this sanction, no court can take cognizance of the offenses committed by a public servant under the PC Act.

Sections 7, 13(1)(d), and 13(2) of the Prevention of Corruption Act, 1988:

Section 7: Punishment for public servants taking gratification other than legal remuneration in respect of an official act.

Section 13(1)(d): Criminal misconduct by a public servant for obtaining a valuable thing or pecuniary advantage for himself or any other person.

Section 13(2): Provides the penalty for committing the offense defined in Section 13(1)(d).

Section 120-B of the Indian Penal Code (IPC): This section deals with criminal conspiracy. It punishes individuals who conspire to commit an offense or cause the commission of an illegal act

CONTENTIONS OF THE APPELLANT

Learned counsel for petitioner-Mr. Manish Gupta, strenuously contended that as per Section 19 of the PC Act, previous sanction for prosecution of a public servant, for the charges of corruption, is mandatory. Petitioner is indisputably a public servant and the application filed by ACB for grant of prosecution sanction against the petitioner has been rejected by a competent Authority. Learned counsel pointed out that the Managing Director, Alwar Zila Dugdh Utpadak Sahkari Sangh Limited (hereinafter for short “the Alwar Dairy”), vide letter dated 19.11.2016 and again vide letter dated 08.12.2017, has forwarded a decision of the Board of Directors, declining to grant prosecution sanction against the petitioner, therefore, his contention is that the petitioner deserves to be discharged from the charges of corruption and cannot be prosecuted in connection with the aforesaid FIR. Learned counsel for petitioner has vehemently argued that an application under Section 169 Cr. PC was moved by the ACB before the Special Judge, Prevention of Corruption Cases, to release the petitioner, due to refusal to grant prosecution sanction by the dairy federation, Alwar, whereupon, the Special Judge had no option except to allow the application. Learned counsel submits that the Special Judge erred in dismissing the application under Section 169 Cr.PC and issuing directions Suo moto, to place the application for reconsideration of the refusal to grant prosecution sanction, before the higher Authority/Reviewing Authority afresh, so also to initiate further investigation in the matter. Learned counsel for petitioner vociferously contended that such exercise of jurisdiction by the Special Judge, is wholly uncalled for as much as without jurisdiction, hence the impugned. order is absolutely against the settled mandate of law, as such needs to be quashed by the High Court in exercise of its jurisdiction under Section 482 Cr.PC and simultaneously, the application filed by the ACB under Section 169 Cr.PC.

CONTENTIONS OF THE RESPONDENTS

Learned Public Prosecutor appearing on behalf of State so also for ACB, prayed to pass just and proper order as this Court deems necessary to prevent abuse of process of law and to secure ends of justice. However, learned Public Prosecutor does not dispute that the impugned order was passed, dismissing the application filed by the ACB under Section 169 CrPC, but the ACB has not come forward to challenge the impugned order before the High Court, in order to pursue its application. When the issue came up before the Special Judge, Prevention of Corruption Cases, Alwar, seeking to discharge/release the petitioner-Chetram because of refusal of the prosecution sanction, learned Special Judge observed that in fact, in the complaint made on 23.08.2016, two persons were named namely Sh. Bannaram Meena, the then Chairman of Alwar Dairy, and (ii) Chetram, LDC-cum-PA of the Chairman, who demanded the money from complainant Tej Singh. The allegations were found true by the ACB, on prima facie verification, and thereafter, trap proceedings were initiated on 31.08.2016. In the red-handed trap, amount of gratification, which was fixed @ Rs.45,000/-, was recovered on the spot from the office of Chairman, Sh. Bannaram Meena. As far as Sh. Bannaram Meena is concerned, though his role was too found suspicious, but investigation against him was postponed at that point of time, but in the investigation, the charges were found proved by the ACB against Sh. Chetram & one Sh. Dhanni Ram Yadav.

COURT’S ANALYSIS AND JUDGEMENT

This Court has concurrence with the view of learned Special Judge, that in such facts and circumstances, the refusal of prosecution sanction by the Management of Alwar Dairy, against the petitioner, obviously requires re-consideration by the Reviewing Authority. The ACB has not come forward to challenge the order impugned, therefore, a natural corollary is that the ACB is agreeable to abide by directions of the Special Judge. In the light of afore-referred discussions, this Court is of considered opinion that the impugned order dated 25.04.2019 falls well within jurisdiction of the Special Judge and stands within bounds of law. In case, the order impugned is quashed, rather the same would lead to failure of justice. There are serious allegations of corruption against petitioner Chetram, which have been found prima facie proved by the ACB during course of investigation. However, because petitioner is a public servant and procurement of prosecution sanction is essential, which has arbitrarily and malevolently been refused, therefore, for ends of justice, matter has been directed to be placed before the reviewing Authority for re-consideration, on the application of ACB. The ratio of the judgment is that once the cognizance is taken, the Magistrate cannot direct for further investigation. At the cost of repetition and in the light of afore-referred judgments of the Apex Court, the legal position remains no more res integra about powers and jurisdiction of the Magistrate to issue directions for further investigation. In respect of issuing another direction by the Special Judge to place the matter of refusal of prosecution sanction against petitioner-Chetram, before the higher Authorities of Dairy Federation, or higher officials of the State Government, at the outset, it is noteworthy that in this regard, the Special Judge with the assistance & concurrence of the Public Prosecutor appearing for ACB, opined that, when prosecution sanction is refused by the Authority, the jurisdiction lies with the Reviewing Authority to reconsider the issue and the Reviewing Authority may grant prosecution sanction, if deems it necessary & justified after considering the new & additional facts, coupled with the entire conspectus of events. In the light of afore-referred discussions, this Court is of considered opinion that the impugned order dated 25.04.2019 falls well within jurisdiction of the Special Judge and stands within bounds of law. In case, the order impugned is quashed, rather the same would lead to failure of justice. There are serious allegations of corruption against petitioner Chetram, which have been found prima facie proved by the ACB during course of investigation. Such proposition of law deals with the entirely different set of facts, which are not involved in the present case. Looking to overall circumstances and for ends of justice, this Court affirms the order impugned dated 25.04.2019. The concerned Special Judge, Prevention of Corruption Cases, Alwar, deserves appreciation and commendation, for applying such an erudite judicious approach in this matter and this Court does that. Stay application and other pending application(s), if any, stand(s) disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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The lack of a Chemical Examination Report left a crucial gap in the prosecution’s evidence for rape: Rajasthan High Court acquits the accused in Rape case

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Case name: State of Rajasthan through Public Prosecutor vs. Man Singh & Mohan Singh.

Case Number: S.B. Criminal Appeal No. 445/1991

Dated on: 09/04/2024

Qoram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

FACTS OF THE CASE

The case involves two appellants, Mohan Singh and Man Singh, accused of raping a woman named “K” and subsequently abetting her suicide. The prosecution argued that the accused committed these crimes in September 1989. The prosecution claims the accused raped “K” and she later set herself on fire, though the exact timeline remains unclear. “K” reportedly gave two statements before succumbing to her burn injuries. The first statement accuses the appellants of rape, while the second claims it was an accidental fire. The FIR (First Information Report) regarding the incident was filed four days after the alleged crimes took place. The victim was also reportedly not admitted to the hospital for treatment until four days after the incident. The medical examination report reportedly did not find any injuries consistent with rape on the victim’s body. The Chemical Examination Report, crucial for confirming sexual assault, was allegedly unavailable. The victim’s father reportedly waited two days after learning about the alleged rape and fire incident before filing a police report and admitting his daughter to the hospital.

ISSUES

  • How can the court reconcile the two conflicting dying declarations from the victim, and can either be used to establish the charges against the accused?
  • Do the significant delays in filing the FIR and seeking medical attention for the victim cast doubt on the prosecution’s case and the timeline of events?
  • Given the inconsistencies in the evidence, including the lack of physical evidence for rape and the conflicting statements, can the prosecution prove the charges of rape and abetment to suicide beyond a reasonable doubt?

LEGAL PROVISIONS

  •  Section 376 – Rape: This section defines rape and outlines the punishment for the offense. Depending on the specific details of the alleged assault presented in the case (e.g., causing grievous hurt), different subsections of Section 376 might be applicable.
  •  Section 306 – Abetment to Suicide: This section deals with instigating or aiding someone in committing suicide. The court would likely analyze the specific wording related to “abetment” under Section 107 of the IPC to determine if the appellants’ actions, if proven, could be considered instigating the victim’s suicide.

CONTENTIONS OF THE APPELLANT

The appellants, Mohan Singh and Man Singh, are likely to challenge the prosecution’s case on several fronts: A major point of contention would be the two vastly different dying declarations provided by the victim. The defence will argue that this glaring contradiction throws the entire accusation into question. They’ll point out the impossibility of knowing which statement, if any, is true, raising doubts about the victim’s mental state and the reliability of her accusations. The appellants will likely highlight the significant delays in both filing the FIR (First Information Report) and seeking medical attention for the victim. These delays raise suspicion about the timeline presented by the prosecution. The defence might argue that such delays could have allowed for evidence to be tampered with or even for the story to be fabricated entirely. The lack of any physical evidence to support the rape allegation will be a strong point for the defense. They will emphasize the absence of injuries consistent with rape in the medical report and the crucial missing Chemical Examination Report. This lack of evidence will bolster their argument that the rape never occurred. The defence might also cast doubt on the actions of the victim’s father. The unexplained two-day delay before reporting the incident to the police and seeking medical care could be used to suggest a potential motive or an attempt to frame the appellants. Throughout the case, the defence will likely remind the court that the burden of proof rests solely with the prosecution. They will argue that the prosecution has failed to establish the charges of rape and abetment to suicide beyond a reasonable doubt, considering the conflicting statements, missing evidence, and unexplained delays. By presenting these contentions, the appellants aim to sow seeds of doubt in the court’s mind regarding the prosecution’s case. This doubt, they hope, will lead to their acquittal.

CONTENTIONS OF THE RESPONDENT

While the case lacks an explicitly mentioned respondent, the prosecution, representing the state and the victim, would likely counter the appellant’s arguments with the following: The prosecution might acknowledge the inconsistencies in the victim’s statements but offer explanations. They could argue that the initial accusation, made under immense pain and trauma, reflects the truth of the assault. The second statement, they might propose, could be due to the victim’s deteriorating condition or fear of social stigma surrounding rape. To strengthen their case, they might attempt to find corroborating evidence, such as witness testimonies, that align with the initial accusation. The prosecution would likely address the delays in reporting and seeking medical attention. They could suggest the victim’s initial shock and trauma from the assault, coupled with potential pressure from family or societal shame associated with rape, might have delayed seeking help. Fear of retaliation from the accused could be another factor. The prosecution would argue that these delays, while concerning, don’t necessarily negate the core truth of the accusation. Despite the missing Chemical Examination Report, the prosecution might argue that the medical report, along with any available circumstantial evidence, should be considered. They might highlight witness statements or pieces of evidence like clothing that could support the rape allegation. The prosecution might downplay the significance of the victim’s father’s delay by suggesting he could have been in a state of shock or confusion due to the traumatic situation. Additionally, they might propose cultural or social norms that might have influenced the delay in seeking medical attention. The prosecution would acknowledge the burden of proof but argue that they have presented a compelling case based on: The initial accusation in the dying declaration. Any supporting circumstantial evidence gathered during the investigation. The overall plausibility of their narrative considering the facts presented. By providing these counter-arguments, the prosecution aims to convince the court that despite limitations in the evidence, the totality of the case points towards the guilt of the accused.

COURT’S ANALYSIS AND JUDGEMENT

 The court found the two vastly different statements from the victim, one accusing the appellants and another claiming an accident, to be highly problematic. This inconsistency raised doubts about the accuracy of the accusations and the victim’s mental state at the time the statements were made. The significant delays in reporting the alleged rape and seeking medical attention for the victim were concerning to the court. These delays cast doubt on the prosecution’s timeline and raised the possibility that evidence could have been tampered with or the story fabricated. The absence of crucial evidence, particularly the Chemical Examination Report that could confirm sexual assault, weakened the prosecution’s case. The court found the medical report alone insufficient to establish the rape charge conclusively. Based on the weak points in the prosecution’s arguments, the court ruled in favour of the appellants, Mohan Singh and Man Singh. The court likely concluded that the prosecution failed to establish the charges of rape and abetment to suicide beyond a reasonable doubt. Here’s a possible explanation for the judgement: The conflicting dying declarations created significant doubt about the core allegation of rape. The unexplained delays raised concerns about the reliability of the prosecution’s narrative. The lack of a Chemical Examination Report left a crucial gap in the prosecution’s evidence for rape. Since the prosecution couldn’t meet the burden of proof, the court likely acquitted the appellants. However, it’s important to note that without access to the full case details, the specific reasoning for the judgement might differ slightly.

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 Judgement Reviewed by – Shruti Gattani

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