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2001 DIGILAW 461 (RAJ)

State of Rajasthan v. Durga Ram

2001-03-21

SUNIL KUMAR GARG

body2001
JUDGMENT 1. This State appeal has been filed by the State of Rajasthan against the judgment and order dated January 18, 1990 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 163/87 by which he acquitted the accused respondent of the charges for the offence under sections 376 and 447 IPC. 2. Necessary facts giving rise to this appeal, in. short, are as follows : On 30.8.1987 at about 3.00 PM, P.W. 3 Smt. Kui (hereinafter referred to as the prosecutrix) lodged a written report Ex. P 3 in the Police Station, Luni District Jodhpur stating inter-alia that on 30.8.1987 in the noon she went to her field for taking fodder and further to protect the field of Bajra. It is further stated in the report that when she was standing, from her back side, accused respondent came and put her on the ground and forcibly lifted her gagra and then committed rape on her. On making hue and cry by her PW. 7 Nainaram came there and after seeing him, accused respondent ran away. It is further stated in the report that she came to her house weeping and she told the whole story to her mother-in-law P.W. 2 Smt. Chukli and thereafter, the whole incident was narrated to the Sarpanch of the Village and it was decided that report be lodged and thus, the same was lodged in that manner.On this report, police registered the case and chalked out FIR Ex. P. 4 and started investigation. After usual investigation, challan was filed against the accused respondent in the Court of Magistrate, from where the case was committed to the Court of Session.On 29.10.1987, the learned Sessions Judge, Jodhpur framed charges against the accused respondent for the offence under sections 376 and 447 IPC. The charges were read over and explained to the accused respondent, who pleaded not guilty and claimed trial.In support of its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. Thereafter, statement of the accused respondent under section 313 Cr.PC. was recorded.After conclusion of trial, the learned District Judge, Jodhpur vide his judgment and order dated .18.1.1990 acquitted the accused respondent of the charges under sections 376 and 447 IPC. Aggrieved from the said judgment and order dated 18.1.1990 passed by the learned Sessions Judge, Jodhpur, this appeal has been filed by the State of Rajasthan. 3. was recorded.After conclusion of trial, the learned District Judge, Jodhpur vide his judgment and order dated .18.1.1990 acquitted the accused respondent of the charges under sections 376 and 447 IPC. Aggrieved from the said judgment and order dated 18.1.1990 passed by the learned Sessions Judge, Jodhpur, this appeal has been filed by the State of Rajasthan. 3. In this appeal, it has been argued by the learned Public Prosecutor that the statement of the prosecutrix P.W. 3 Smt. Kui should have been believed by the learned Sessions Judge and in not placing reliance on her statement, the learned Sessions Judge has committed illegality and thus, the impugned judgment and order of the learned Sessions Judge are liable to be set aside. 4. On the other hand, the learned counsel for the accused respondent supported the impugned judgment and order passed by the learned Sessions Judge, Jodhpur. 5. I have heard the learned Public Prosecutor and the learned counsel for the accused respondent and gone through the record of the case. 6. Before proceeding further, it may be stated here that in the present case, there is no medical evidence supporting the case of the prosecution for the offence under section 376 IPC. 7. The learned Sessions Judge, Jodhpur in Para 20 at page 12 of his judgment dated 18.1.1990 has given the following reasons for not placing reliance on the statement of the prosecutrix P.W. 3 Smt. Kui : 1. That when accused respondent put the prosecutrix forcibly on the ground. She did not receive any injury and even her clothes were not torn up. 2. That not only this, her bangles were not broken. 3. That she did not cause any injury on the person of accused-respondent by her teeth and nail. 4. That she was a married woman of 19 years of age and healthy woman. 5. That all these facts go to show that she was a consenting parry. 6. That on the ground, there was a tapariya and on that alleged rape was committed. This fact also goes to show that it was a pre-planned act and not a rape. 7. That she did not make any hue and cry and when P.W. 7 Nainaram was passing through, he saw both doing sexual intercourse and after seeing him, she made hue and cry. 8. This fact also goes to show that it was a pre-planned act and not a rape. 7. That she did not make any hue and cry and when P.W. 7 Nainaram was passing through, he saw both doing sexual intercourse and after seeing him, she made hue and cry. 8. That in these circumstances, the learned Sessions Judge, Jodhpur came to the conclusion that because of the above reasons, it was a case of consent and not rape and thus, after giving benefit of doubt he acquitted the accused respondent of the charges framed against him. 8. The question for consideration is whether the above findings of the learned Sessions Judge, Jodhpur are liable to be confirmed or not. 9. Before proceeding further, some thing should be said about the evidence of prosecutrix. 10. The main evidence in all such cases is that of the victim herself. In practice a conviction for rape almost entirely depends on the credibility of the woman. So far as the essential ingredients are concerned. The other evidence being corroborative. It is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. 11. Ordinarily where forcible sexual intercourse is committed there would be injury on the person of the victim. Absence of any injury on the person of a woman alleged to have been raped may go a long way to indicate that the alleged intercourse was a peaceful affair and the story of a stiff resistance put up by the prosecutrix is false or an afterthought. The Court is aware that in absence of such injury, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. It always depends upon the facts and circumstances of the case. 12. The testimony of the prosecutrix must be appreciated in the background of the entire case and court must be aware to its responsibility and be sensitive while dealing with cases involving sexual molestations. 13. It always depends upon the facts and circumstances of the case. 12. The testimony of the prosecutrix must be appreciated in the background of the entire case and court must be aware to its responsibility and be sensitive while dealing with cases involving sexual molestations. 13. Keeping in mind the above principles, the findings of the learned Sessions Judge, Jodhpur are to be appreciated. 14. In this case, the learned Sessions Judge has given so many cogent reasons in coming to the conclusion that it was a case of consent and not a case of forcible sexual assault. In my considered opinion, the reasons which have been mentioned above are upto the mark and when they are judged in broad perspective, they only lead to the conclusion that in the present case, no rape was committed by the accused respondent and it was a case of consent between the prosecutrix P.W. 3 Smt. Kui and the accused respondent. The findings of the learned Sessions Judge are based on correct appreciation of evidence and they do not suffer from any infirmity. I see no reason to take different view from the one taken by the learned Sessions Judge. Hence, no interference is called for with the impugned judgment and order dated 18.1.1990 passed by the learned Sessions Judge, Jodhpur.Accordingly, this appeal filed by the State of Rajasthan fails and is hereby dismissed, after confirming the impugned judgment and order of the learned Sessions Judge, Jodhpur dated 18.1.1990.Appeal dismissed. *******