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2002 DIGILAW 1897 (RAJ)

Durga Lal v. The State of Rajasthan

2002-11-29

KHEM CHAND SHARMA

body2002
JUDGMENT 1. - Appellants Durgalal and Suresh Kumar have filed this criminal appeal against the judgment and order dated November 26, 1998 passed by the learned Sessions Judge, Jhalawar, thereby convicting and sentencing both the appellants in the following manner:- Under Section 366 IPC Each to undergo rigorous imprisonment for 5 years with a fine of Rs. 5000/- each, in default thereof, each to further undergo simple imprisonment for one year. Under Section 376(2)(g) IPC Each to undergo rigorous imprisonment for 10 years with a fine of Rs. 5000/- each, in default thereof, each to further undergo simple imprisonment for one year. 2. Succinctly stated the contextual facts of the prosecution case are that on 17. Sangita Kumar (PW 1) aged around 14 years submitted a written report, Ex.P 1 at Police Station, Sunel with regard to the incident of rape alleged to have taken place at 4.30 PM. As per the report, on the day of incident at about 4.30 P.M. the prosecutrix went to draw water from the well. Soon she hanged the water pot tied with rope into the well, the accused appellants came there. Accused Durgalal shut her mouth, while accused Suresh caught her hands and thereafter both of them forcibly dragged her inside the house of Magan, which was stated to be vacant and was being used for keeping cattle. It was stated that accused Durgalal took out pistol from his pocket and handed it over to Suresh with the direction to open fire in case some body comes there. Suresh closed the door and guarded out side. Thereafter accused Durgalal caught hold of her, threw her on the ground and asked her to kill in case she raises cries. Later, Durgalal lifted her skirt, removed her underwear and forcibly committed sexual intercourse with her. After fulfilling sexual lust, accused Durgalal got up and while leaving the place he threatened the prosecutrix not to disclose the incident to any body, otherwise he will kill her. Thereafter, the prosecutrix put on her underwear and returned home. After a short while, when her mother returned home, she narrated the incident to her mother. As per the report, her father came at 7 PM, to whom her mother informed of the incident. 3. On the above written report, Police registered a case vide FIR, Ex.P2 and proceeded with the investigation. 4. After a short while, when her mother returned home, she narrated the incident to her mother. As per the report, her father came at 7 PM, to whom her mother informed of the incident. 3. On the above written report, Police registered a case vide FIR, Ex.P2 and proceeded with the investigation. 4. On the next day of incident, i.e. on 18.11.95, the prosecutrix was examined by PW.5 Dr. Chandra Kishore Srivastava. No marks of violence were found on any part of the body of the prosecutrix, except two abrasions, one on left breast and another on lower part of her left arm and redness over vaginal orifice. Her hymen was not raptured and it was intact. The doctor opined that no definite opinion could be given about any recent sexual intercourse having taken place with the prosecutrix, which could, if at all, be confirmed by chemical examination of clothes, vaginal smear etc. On the day of examination, Dr. Srivastava seized and sealed the skirt, underwear, vaginal swab and vaginal smear for the purposes of chemical examination and sent to the SHO, Sunel. In cross examination. Dr. Srivastava deposed that two injuries found on the body of prosecutrix could be self inflicted and positively opined that in all probabilities hymen shall rapture in case of forcible penetration. He further deposed that hymen of the prosecutrix was intact and the vagina did not admit one finger. The Investigating Officer inspected the site and prepared site plan Ex. P.3 on 18.11.95. 5. The accused appellants were arrested on 20.11.95 i.e. after 3 days of the incident. Accused Durgalal was also examined by PW 5 Dr. C.K. Srivastava. He was found to be potent and capable of performing intercourse. He was found to be potent and capable of performing intercourse. In the report, Ex.P10 Dr. Srivastava opined that it could not be said that the accused has performed sexual intercourse recently within 24 hours. 6. On 21.11.95, PW 4 Dr. Ramesh Chand Dubey, Medical Jurist examined the prosecutrix to ascertain her age and opined that her age was between 14 to 16 years and there may be margin of error of 3 years in the age. 7. The Assistant Director, Forensic Science Laboratory found the presence of human semen on Skirt, Kacha of the prosecutrix and Pent and Chaddi of the accused. Semen was not detected in vaginal swab and vaginal smear. 8. 7. The Assistant Director, Forensic Science Laboratory found the presence of human semen on Skirt, Kacha of the prosecutrix and Pent and Chaddi of the accused. Semen was not detected in vaginal swab and vaginal smear. 8. After completion of entire formalities, the police submitted charge sheet against the accused appellants for offence under Section 376/34 IPC. The learned trial court, on the basis of material available before it and after hearing counsel for the parties framed charges under Sections 366 and 376(2)(g) IPC against the appellants. The appellants abjured his guilt and claimed to be tried. 9. After examination of 11 prosecution witnesses, the trial court examined the accused under Section 313 Cr.P.C. In their explanation, the accused denied the charges and stated the report to be false. They did not examine any witness in their defence. At the conclusion of trial, the learned trial Judge found the incident as alleged proved. In the opinion of the trial Judge, the testimony of the prosecutrix was worthy of credence and it inspired confidence. It was concluded that her testimony was corroborated by the evidence of other prosecution witnesses including the medical evidence. Accordingly, the accused were held guilty of the offences charged with and they were convicted and sentenced in the manner stated hereinabove. Hence the present appeal. 10. In the cases of sexual assault, the age of the victim girl is of greater significance and therefore, it needs to be satisfactorily established by the prosecution on the basis of cogent and reliable evidence. After considering the evidence, the trial court has concluded that the age of the prosecutrix at the time of commission of offence was 16 years. On reappraisal of prosecution evidence, I am also of the firm view that in any case the age of the prosecutrix was not less than 16 years at the time of commission of offence. 11. The prosecution case rests solely on the testimony of prosecutrix. From a perusal of the impugned judgment, it appears to me that the prosecution has tried to seek corroboration from the testimony of PW 2 Jamna Bai, mother of the prosecutrix, to whom she narrated the entire story after Jamna Bai reached her house at 7.00 PM and PW3 Ram Chandra, father of the prosecutrix to whom Jamna Bai disclosed the story as was narrated to her by the prosecutrix. The -prosecution has also tried to seek corroboration by medical evidence. 12. To proceed further, I consider it appropriate to first refer the statements of relevant prosecution witnesses. As per the version of the prosecutrix (PW 1), while she was drawing water form the well, both the accused appeared and forcibly took her to a vacant house, where accused Durga took out a pistol from his pocket, handed it over to another accused Suresh Kumar and asked him to keep watch. Accused Suresh closed the door and remained standing out side the house, whereas accused Durga threw the prosecutrix on the ground, lifted her skirt, put off her underwear and then committed sexual inter-course. He performed intercourse for 2-3 minutes and left her after emission of semen. Thus as per the prosecutrix, accused Durgalal performed complete intercourse with her. Whatever she has deposed in her statement before the court, is mentioned in the written report. Ex.PI of the prosecutrix herself. In cross examination, the prosecutrix has deposed that the well where she had gone to draw water is surrounded by residential houses. 13. PW2 Mst.Jamna Bai, mother of the prosecutrix has stated that when she returned home at 6 PM, her daughter informed about the rape having been committed on her by accused Durga Lal. In cross examination, this witness has stated that there are residential houses near Madaria well. However, she stated that residents were not present in their houses. 14. PW3 Ram Chandra, lather of the prosecutrix has stated that when he returned home at 7 PM, his wife informed him of the incident as was disclosed to her by his daughter:- 15. PW5 Dr. Chandra Kishore Srivastava has stated in his statement that he found two abrasions which were simple in nature. He did not find any marks of blood, semen or injury on or near her private parts. Hymen was not raptured and it was intact and slight redness was found over vaginal orifice. The doctor further stated that he had tried to introduce his one finger into the vagina and the vagina did not admit one finger and therefore hymen was intact. He stated that slight penetration may result repturing of hymen. He then stated that it was not necessary that slight penetration would repture the hymen, but redness may occur over the orifice of vagina. He stated that slight penetration may result repturing of hymen. He then stated that it was not necessary that slight penetration would repture the hymen, but redness may occur over the orifice of vagina. He stated that in view of these facts, it cannot be said that sexual inter-course was performed with the prosecutrix. In cross examination, Dr. Srivastava stated that both the injuries mentioned in EX.P7 could be self inflicted. In case of forceful penetration, hymen is bound to be reptured. In this case, hymen was intact and therefore vagina did not admit even one finger. 16. PW 7 Hari Prasad Nagar, ASI, who carried out investigation has stated in his cross examination that there are residential houses near the place of incident. He was given the names of Kalu, Magan, Narain etc. and has stated that they are living there along with their families. 17. PW 8 Bharmal is an important witness. He is cousin of the father of prosecutrix. He has stated that prosecutrix was standing at the house of Magan Dhakar and was weeping. Accused Suresh and Durga were standing behind the prosecutrix. On being asked as to what has happened, accused Suresh and Durga ran away. The prosecutrix informed him that the accused have mis-behaved with her. The witnesses stated that he left for his house and the prosecutrix also proceeded to her house. 18. In the cases involving sexual offence, the law is well settled that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case. It is thus evident that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worthy of credence. 19. It is thus evident that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worthy of credence. 19. In the case at hand, the age of the prosecutrix was 16 years at the time of commission of alleged offence and that she was not just a child who could have surrendered herself to a forced sexual assault without offering any resistance whatsoever. The well from where the prosecutrix, as per her own version, was forcibly taken away by the accused appellants at about 4.30 PM in a broad day light was undisputely situated in a populated area and the place where gang rape was alleged to have been committed is also situated in a thickly populated area and number of persons along with their family members are residing in the nearby houses. As per the version of the prosecutrix, accused Durga Lal gave pistol to Suresh Kumar, who went out side the house. Closed and door and remained standing out side the house till Durga Lal completed sexual intercourse. The place from where she was forcibly taken and the house where accused Durga alleged to have committed rape were covered by residential houses as is proved by the prosecution evidence and therefore, it cannot at all the believed that she was forcibly taken away by the accused appellants and ravished by accused Durgalal. It does not transpire from the statement of the prosecutrix that she could not resist because of being over-awed by the accused persons. She did not raise even hue and cry at any point of time. As per the version of the prosecutrix herself, accused Suresh Kumar remained out side the house and as such she and accused Durgalal alone were there. Therefore, she had ample opportunity to offer resistance and/or to raise an alarm so as to attract the residents of the locality and to get rid of the clutches of accused Durgalal. It is also evident from her statement that after the incident, accused first came out of the house and thereafter she put on her underwear and came out. Therefore, she had ample opportunity to offer resistance and/or to raise an alarm so as to attract the residents of the locality and to get rid of the clutches of accused Durgalal. It is also evident from her statement that after the incident, accused first came out of the house and thereafter she put on her underwear and came out. That apart, she did not inform the incident to her uncle PW 8 Bharmal who met her out side the place of incident when she and accused came out of the house immediately after commission of offence. PW8 Bharmal has stated that he saw the prosecutrix weeping out side the house of Magan Dhakar. When he asked as to what happened, the prosecutrix replied that accused have mis-behaved with her. According to this witness, the accused ran away and he and prosecutrix left for their respective houses. In these circumstances the version of the prosecutrix appears to be highly improbable and 1 find it difficult to place reliance on her testimony. 20. The version of the prosecutrix during trial of the case and the version in her own written report, Ex.P1 is that accused appellant Durgalal committed rape on her and he performed complete intercourse with her. As stated above, the prosecutrix did not sustain any injury except two abrasions, one on left breast and another on lower part of right arm, In the opinion of PW 5 Dr.Srivastava, the abrasions could be self inflicted. A glance at the medical report, shows that hymen of the prosecutrix was not found reptured and it was intact and not other injury on her private parts, except some redness over vaginal orifice, was found. The doctor stated that he had tried to get his one finger entered into the vagina but the vagina did not admit one finger and therefore hymen was intact. He stated that slight penetration may result repturing of hymen. He then stated that it was not necessary that slight penetration would repture the hymen, but redness may occur over the orifice of vagina. He stated that in view of these facts, it cannot be said that sexual inter-course was performed with the prosecutrix. In cross examination, Dr. Srivastava stated that both the injuries mentioned in Ex.P7 could be self inflicted. In case of forceful penetration, hymen is bound to be reptured. He stated that in view of these facts, it cannot be said that sexual inter-course was performed with the prosecutrix. In cross examination, Dr. Srivastava stated that both the injuries mentioned in Ex.P7 could be self inflicted. In case of forceful penetration, hymen is bound to be reptured. In this case, hymen was intact and therefore vaginal orifice did not admit even one finger. The possibility of sexual intercourse having taken place without repturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers. Thus the version of the prosecutrix that appellant Durga committed rape on her is not corroborated by the medical evidence and on the contrary it is belied thereby. 21. Other circumstances also do not support the testimony of the prosecutrix. A glance at Ex.P.17, the report of Forensic Science Laboratory suggests the presence of semen on the skirt and kachha of the prosecutrix. However, semen was not found in vaginal smear and swab. Therefore, mere presence of semen on skirt and kachha is not of much significance. It may also be noticed that accused Durgalal was arrested and medically examined after three days of incident and therefore, if at all any marks of semen were found on his Pent and Chaddi, the same are of no relevance and cannot be linked with the case at hand. 22. The place where the offence was allegedly committed is a house situated near the well from where the prosecutrix was forcibly taken by the accused and is surrounded by number of houses, as it evident form the site plan and the statements of witnesses. As such there was least possibility of the incident having taken place in the manner stated by the prosecutrix. 23. The last circumstance also does not support the testimony of the prosecutrix. PW 8 Bharmal is the person who happens to be uncle of the prosecutrix and met the prosecutrix immediately after the alleged incident, just out side the place of incident. But the prosecutrix has not disclosed the presence of PW 8 Bharmal either in the FIR or in her statement. According to this witness, on being asked as to what has happened, the prosecutrix simply replied that the accused who were standing at her back have misbehaved with her. Thereafter, all of them left the place for their respective houses. 24. According to this witness, on being asked as to what has happened, the prosecutrix simply replied that the accused who were standing at her back have misbehaved with her. Thereafter, all of them left the place for their respective houses. 24. In the light of what has been discussed above, I find it highly difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the medical evidence and other circumstances discussed above. Therefore, I find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. 25. Learned Public Prosecutor has relied upon a decision of the Apex Court in State of U.P. v. Babul Nath (1994) 6 SCC 29 ) and has contended that mere slight penetration is sufficient to constitute the offence under Section 376 IPC. According to him they explanation attached to Section 375 does not require that there should necessarily be complete penetration of the penis into the private part of the prosecutrix. Learned counsel for the State has relied upon following observations of the Apex Court:- "Even partial or lightest penetration of the male organ within the labia majora or the vulva or pudena with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her." 26. Section 375 IPC defines rape and the Explanation attached to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. No doubt, even partial or slightest penetration with or without emission of semen and repture of hymen is sufficient to constitute the offence under Section 376 IPC. Section 375 IPC defines rape and the Explanation attached to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. No doubt, even partial or slightest penetration with or without emission of semen and repture of hymen is sufficient to constitute the offence under Section 376 IPC. The trial court has concluded that redness found over vaginal orifice of the prosecutrix is sufficient to constitute the offence under Section 376 IPC. I may be noticed here that in virgins the hymen as a result of complete sexual intercourse is usually lacerated. The possibility of sexual intercourse having taken place without rupturing hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers. Here in the instance case, as per the evidence of PW 5 Dr. C.K. Srivastava, he tried to enter one finger in the orifice, but it was not capacious even to admit one finger. The medical evidence discussed above completely belies the specific and categorical version of the prosecutrix in her statement and in FIR that there was complete sexual intercourse with force and with emission of semen. In this view of the matter the case law cited at the bar is of not help to the counsel for the State. 27. Learned counsel for the State has also argued that where a woman raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. It is contended that appellant Durgalal acted in concert and took away the girt in a vacant house and thereafter raped the prosecutrix and in the mean time another accused guarded out side the house. Therefore, both the appellants are guilty under Section 76 IPC in terms of Explanation to Clause (g) of Sub-section (2) of Section 376 IPC, irrespective of the fact whether she was raped by one or more of them. He has also relied upon a decision of the Apex Court in Promod Matho v. State of Bihar ( AIR 1989 SC 1475 ). 28. He has also relied upon a decision of the Apex Court in Promod Matho v. State of Bihar ( AIR 1989 SC 1475 ). 28. As regards above argument, once it is held that no offence of rape as alleged by the prosecution has been proved against appellant Durgalal, the question of offence under Section 376(2)(g) IPC having been committed does not arise. The case cited above is also of no relevance to the present case. 29. For the foregoing reasons the appeal is allowed. The conviction of the accused appellants as recorded by the trial court is set aside and the accused appellants are acquitted of the charges framed against them. The appellants are in jail and they shall be set at liberty forthwith, if not required to be detained in connection with any other offence.Appeal allowed. *******