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2001 DIGILAW 1837 (RAJ)

State of Rajasthan v. Indra Chand

2001-11-23

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 31.7.1995 passed by the Learned Additional Sessions Judge, Ratangarh by which the learned Additional Sessions Judge acquitted the accused-respondent for offence u/ss. 376/511 and 341 IPC. 2. This appeal arises in the following circumstances (i) On 30.9.1993 at about 11.00 a.m. PW-1 Bhanwari D/o Sukharam (hereinafter referred to as 'the prosecutrix') lodged a written report Ex.P/1 with the police station Ratangarh stating that on 29.9.1993 in the noon, she went to the field and in the evening when she was coming to her home, accused-respondent met her and asked her for "Kakri" and she gave one "Kakri" to him and when she was going towards her house, the accused-respondent caught hold of her and put her on the ground and fell upon her and thereafter she cried and accused-respondent gagged her mouth. Thereafter he lifted her Ghaghra and tried to commit rape on her, but she removed him and cried. On hearing her cries, neighbourers PW-4 Smt. Ramesh and PW-5 Smt. Santosh came there and seeing them, he ran away. 3. On this report police chalked out regular FIR Ex.P/2 and started investigation. 4. After investigation challan was filed by the police against the accused-respondent in the Court of Magistrate, from where it was committed to the Court of Addl. Sessions Judge, Ratangarh. 5. That on 24.3.1994 the charges for offence u/ss. 376/511 and 341 IPC were framed against the accused-respondent who pleaded not guilty and claimed trial. 6. During trial, as many as 7 witnesses have been produced on behalf of the prosecution and statement of accused-respondent was recorded u/s. 313 Cr.P.C. and no witness was examined in defence. 7. After conclusion of the trial, the learned trial Judge acquitted the accused-respondent for offence u/ss. 376/511 and 341 IPC through his judgment and order dated 31.7.1995 inter alia holding : (i) That the statement of prosecutrix PW-1 Bhanwari was not reliable. (ii) Statement of PW-1 Bhanwari was not supported by both the eye-witnesses PW-4 Smt. Ramesh and PW-5. Smt. Santosh. (iii) The fact that she did not receive any injury during the struggle also negatives the allegation of forcible attempt on the part of accused-respondents for committing rape on her. (iv) That there was delay in lodging the report. 8. (ii) Statement of PW-1 Bhanwari was not supported by both the eye-witnesses PW-4 Smt. Ramesh and PW-5. Smt. Santosh. (iii) The fact that she did not receive any injury during the struggle also negatives the allegation of forcible attempt on the part of accused-respondents for committing rape on her. (iv) That there was delay in lodging the report. 8. Aggrieved from the said judgment and order dated 31.7.1995 this appeal has been filed by the State of Rajasthan. 9. In this appeal, the learned Public Prosecutor has argued that the findings of learned Trial Judge by which he acquitted the accused-respondent are erroneous one and they should be set aside and this State appeal should be allowed. 10. On the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call any interference by this Court. 11. I have heard both and perused the record.BURDEN OF PROOF 12. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of the prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 13. Apart from this, if the victim is unwilling to yield to sexual intercourse, she is expected to receive some injuries on her person. Absence of injury on her person generally gives rise to an inference that she was consenting party to coitus. The accused is entitled to the benefit of every reasonable doubt. 13. Apart from this, if the victim is unwilling to yield to sexual intercourse, she is expected to receive some injuries on her person. Absence of injury on her person generally gives rise to an inference that she was consenting party to coitus. Absence of injuries on the prosecutrix or the accused shows that the prosecutrix did not resist. But absence of injuries is not by itself sufficient to hold that the prosecutrix was consenting party. 14. There is also no dispute on the point that corroboration of testimony of the prosecutrix in a rape case is not required as a rule of law, but corroboration should ordinarily be required in a case where woman has attained majority and who is habitual to sexual intercourse as in such cases, there is likelihood of her having levelled such accusation on account of self-preservation. 15. The learned Additional Sessions Judge has given so many reasons for not placing reliance on the statement of PW-1 Bhanwari as he found her statement contradictory in so many aspects with the contents alleged in the report Ex.P/1 by the prosecutrix. The learned Additional Sessions Judge has found that PW- 1 Bhanwari has substantially improved her statement when she was examined in the Court. From the statement of PW-1 Bhanwari, it further appears that she was not having any child though she was married and she has further admitted that the place where she was forcibly put on the ground, there was crop of "Moth", "Gwar" and "Bazra", but she did not receive any injury nor her bangles were broken. She has further admitted that accused was her relative. 16. PW-2 Smt. Dal is mother of PW-1 Bhanwari and she has stated that after the incident, Panchayat took place, but what was decided in the Panchayat, she could not say. PW-4 Smt. Ramesh and PW-5 Smt. Santosh whose names are found in the report Ex.P/1 have *been declared hostile and they did not support the version of PW-1 Bhanwari. It may be stated that the prosecutrix was not got medically examined. 17. PW-4 Smt. Ramesh and PW-5 Smt. Santosh whose names are found in the report Ex.P/1 have *been declared hostile and they did not support the version of PW-1 Bhanwari. It may be stated that the prosecutrix was not got medically examined. 17. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon'ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant v. State of Karnataka, reported in AIR 1997 SC 3251 may be referred to. 18. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted. 19. In my considered opinion, the judgment of the learned Additional Sessions Judge is based on correct appreciation of evidence and the reasons which has been assigned by the learned Trial Judge are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds. 20. Since the learned Additional Sessions Judge has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Judge as to the credibility of the witnesses must be respected. Apart from this., the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Judge as the trial Judge had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.For the reasons mentioned above, the present stage appeal is dismissed after confirming the judgment and order dated 31.7.1995 passed by the learned Additional Sessions Judge, Ratangarh.Appeal Dismissed. *******