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2001 DIGILAW 1938 (RAJ)

State of Raj v. Omia @ Om Prakash

2001-12-14

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 6.6.89 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 63/88 by which the learned Sessions Judge acquitted the accused respondent for offence under Section 376 I.P.C. 2. This appeal arises in the following circumstances : (i) On 27.4.87 at about 1.35 p.m. P.W.1 Pappuri (hereinafter referred to as the prosecutrix) gave an oral information Ex.P/1 to P.W.10 Jafar Ali, SHO, Police Station Bilara stating that yesterday at about 3 p.m. he went to her Bare for throwing cow's dunk in the Bara and at that time no body was there and thereafter accused respondent came from her back side and after catching hold her hair, put her on the ground and opened her Chaddi and he also put off her clothes and put a handkerchief in her mouth so that she could not cry. Thereafter he put his penis into her vagina and committed rape with her. When accused respondent was running, her cousin sister P.W.2 Baburi also reached there, but she did not inform her about this incident and she returned back to her house and Baburi informed her brother. 3. That statement Ex.P/1 it was reduced into writing by P.W.10 Jafar Ali and the same is Ex.P/1 and on the basis of that statement police chalked out regular FIR Ex.P/9 and investigation commenced. 4. During investigation P.W.1 Pappuri was got medically examined by P.W.5 Dr. Tej Singh and her medical examination report is Ex.P/3 and the accused respondent was also got medically examined and his medical examination report is Ex.P/4. 5. After investigation challan was filed by the police against the accused respondent for offence under Section 376 I.P.C. in the Court of Magistrate, from where it was committed to the Court of Sessions Judge, Jodhpur. 6. On 12.5.88 the charge for offence under Section 376 I.P.C. was framed against the accused respondent who pleaded not guilty and claimed trial. 7. During trial, as many as 10 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under section 313 Criminal Procedure Code and no witness was examined in defence. 8. On 12.5.88 the charge for offence under Section 376 I.P.C. was framed against the accused respondent who pleaded not guilty and claimed trial. 7. During trial, as many as 10 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under section 313 Criminal Procedure Code and no witness was examined in defence. 8. After conclusion of the trial, the learned trial Judge acquitted the accused respondent for offence under Section 376 I.P.C. through his judgment and order dated 6.6.89 inter alia holding : (i) That P.W.1 Pappuri has been declared hostile and in examination in chief, she has categorically stated that the accused respondent did not do anything with her. (ii) That she has further admitted in her statement that the statement was given as per saying of her Uncle. (iii) That for reporting the matter to the police, the advice was given by Madhoji Ward Panch. (iv) That so far as medical evidence is concerned, the medical examination report Ex.P/3 does not bear the thumb impression and identity marks of the child prosecutrix. In this circumstances this report is doubtful on the point whether it belongs to P.W.1 Pappuri or not. (v)That thee is no independent evidence to support the statement of P.W.1 pappuri and hence, the learned Sessions ' Judge acquitted the accused respondent. 9. Aggrieved from the said judgment and order of acquittal dated 6.6.89 this appeal has been filed by the State of Rajasthan. 10. In this appeal, the learned P.P. 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. 11. 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 slime do not call any interference by this Court. 12. I have heard both and perused the record.BURDEN OF PROOF 13. 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 not 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. 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 not 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. 14. 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. 15. P.W.5 Dr. Tejsingh, has admitted in his statement that on medical examination report Ex.P/3, no thumb impression of Pappuri was taken nor it contained her identity marks and it is further case that he could not say that in place of P.W.1 Pappuri, another girl would have been produced before him for medical examination. In these circumstances, the findings of learned Sessions Judge whether P.W.5 Dr. Tej Singh examined P.W.1 Pappuri or not has not been proved by the prosecution beyond reasonable doubt are liable to be confirmed one or in other words it cannot be said that P.W.5 Dr. Tejsingh actually examined P.W.1 Pappuri. 16. In these circumstances, the findings of learned Sessions Judge whether P.W.5 Dr. Tej Singh examined P.W.1 Pappuri or not has not been proved by the prosecution beyond reasonable doubt are liable to be confirmed one or in other words it cannot be said that P.W.5 Dr. Tejsingh actually examined P.W.1 Pappuri. 16. In the statement on P.W.1 Pappuri, she has clearly stated in her examination-in-chief that the accused did not do anything with her, but in the cross-examination she admitted that the accused respondent committed rape with her, but further she has admitted that it is correct to say that her grand-father and Ward Panch Madhoji belonged to one party and accused respondent belonged to another party. P.W.1 Pappuri has further admitted that to make out a case against the accused respondent, the advice was given by Madho Ji and her grand-father and she has further admitted that she was advised by her grand-father that what type of statement she was to give. 17. P.W.2 Baburi in her statement has admitted that when she reached the place of occurrence, she saw the accused respondent running away, but P.W.1 Pappuri did not narrate anything to her. 18. Looking to the statement of P.W.1 Pappuri as stated above and looking to the medical evidence as mentioned above the learned Sessions Judge came to the conclusion that the case of prosecution that the accused respondent committed rape with her has not been proved beyond reasonable doubt. The learned Sessions Judge while thoroughly appraising and scanning the prosecution evidences has categorically stated that the prosecution has failed to prove its case beyond reasonable doubt and second view is also equally possible, the appellate Court cannot be justified to substitute the latter view in place of the former view taken by the learned trial Judge. When both views are possible, one favourable to the accused has to be accepted. 19. The position of law with respect of hearing appeal against acquittal has been made dear by the Hon'ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant V/s State of Karnataka reported in AIR 1997 (SC) 3251 may be referred to. 20. 19. The position of law with respect of hearing appeal against acquittal has been made dear by the Hon'ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant V/s State of Karnataka reported in AIR 1997 (SC) 3251 may be referred to. 20. 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. 21. In my considered opinion, the judgment of the learned Sessions Judge. is based on correct appreciation of evidence and the reasons which has been assigned by the learned Magistrate 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. 22. Since the learned 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 State appeal is dismissed after confirming the judgment and order dated 6.6.89 passed by the learned Sessions Judge, Jodhpur.Appeal Dismissed. *******