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2002 DIGILAW 217 (RAJ)

Shankar Singh v. State of Rajasthan

2002-01-25

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This appeal has been filed by the accused appellants against the judgment and order dated 1.9.1987 passed by the learned Addl. Sessions Judge, Bikaner in Sessions Case No. 15/86 by which he convicted both the accused appellants for the offence under Section 376 IPC and sentenced each of them to undergo RI for four years and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo RI for one year. (2). The facts giving rise to this appeal, in short, are as follows:- On 28.8.1985 at about 8.00 PM, PW5 Umedaram lodged a written report Ex.P/3 with the Police Station Nokha District Bikaner stating inter-alia that on 17.8.1985 at about 10.00 AM, his daughter Rami, PW7 (hereinafter referred to as the prosecutrix) aged about 15 years was going to his field and when she walked near about 1 km., on the way accused appellants met her and the accused appellant Shankar caughthold her hand and put on the ground and, thereafter, both accused appellants committed rape with her one by one. It was further stated in the report that when the rape was being committed by the accused appellants with the prosecutrix PW7 Rami, she made hue and cry and on hearing her cry, PW1 Modaram reached on the spot and he raised voice and then, the accused appellants left the prosecutrix PW7 Rami and ran away from the scene. It was further stated in the report that at that time, PW5 Umedaram himself was going to his field from the village and reached on the spot and thereafter, he took his daughter prosecutrix PW7 Rami to the village and thereafter, he went to PW4 Rampratap, Sarpanch and apprised him about the whole incident which had taken place with his daughter prosecutrix PW7 Rami. Upon this, PW4 Rampratap replied that he could do whatever he wanted. It was further stated in the report that on the same night, the accused appellants and their fathers having weapons with them came to the house of PW5 Umedaram and threatened him that in case report was lodged by him, they would kill him and they would also damage his crops and he (PW5 Umedaram) was not allowed to move from his house on that night. It was further stated in the report that since accused appellants were ruffian type of people and since he was harijan by caste, therefore, nobody prepared to help him and, therefore, the report was not lodged by him for so many days and report was lodged by him on 28.8.1985. On this report, police registered the case and chalked out regular FIR Ex. P/5 and started investigation. The accused appellants Shankar and Rameshwar were arrested through arrest memos Ex.P/8 and Ex.P/9 respectively. The prosecutrix PW7 Rami was got medically examined by CW1 Dr. D.K. Purohit for the purpose of ascertaining whether rape was committed with her or not and for ascertaining her age. For ascertaining her age, X-rays of her elbow, wrist and pelvis were taken and after seeing the X-rays, CW1 Dr. D.K. Purohit opined that her age was about 19 years. The Certificate of age issued by CW1 Dr. D.K. Purohit is Ex.P/16 and the same was admitted by the learned counsel for the accused appellants during trial before the trial Court. The Medico Legal Report of the prosecutrix PW7 Rami is Ex.C/1 where CW1 Dr. D.K. Purohit opined that it was not possible to say that rape was performed with her. He did not find any sort of injury on any part of her body. On quarry, he gave another report Ex.P/15 in which he further opined that no rape was performed with her recently within a period of two weeks. Thus, from the medical evidence, the following facts have emerged:- (1) That the radiological age of the prosecutrix PW7 Rami was about 19 years. (2) That no injury was found on any part of the body of the prosecutrix PW7 Rami, when she was being examined on 29.8.1985. (3) That there was no sign of recent sexual intercourse with the prosecutrix PW7 Rami. After usual investigation, police submitted challan for the offence under Section 376 IPC against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Session. On 4.2.1986, the learned Addl. Sessions Judge, Bikaner framed charges for the offence under Section 376 IPC against the accused appellants. The charges were read over and explained to the accused appellants. The accused appellants denied the charges and claimed trial. On 4.2.1986, the learned Addl. Sessions Judge, Bikaner framed charges for the offence under Section 376 IPC against the accused appellants. The charges were read over and explained to the accused appellants. The accused appellants denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under Section 313 Cr.P.C. were recorded. Dr. D.K. Purohit was examined as CW1. After conclusion of trial, the learned Addl. Sessions Judge, Bikaner through his judgment and order 1.9.1987 convicted the accused appellants for the offence under Sec.376 IPC and sentenced them in the manner as indicated above holding inter- alia:- 1. That sexual intercourse had taken place with the prosecutrix PW7 Rami. 2. That delay in lodging the report has been satisfactorily explained. 3. That since prosecutrix PW7 Rami was got medically examined on 29.8.1985 and the alleged incident took place on 17.8.1985, therefore, if injuries on her person were not found, it would not affect the prosecution case. 4. That prosecutrix PW7 Rami was forcibly raped by the accused appellants. 5. That prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Section 376 IPC. Aggrieved from the said judgment and order dated 1.9.1987 passed by the learned Addl. Sessions Judge, Bikaner, this appeal has been filed by the accused appellants. (3). In this, appeal, the learned counsel appearing for the accused appellants has made the following submissions:- (1) That in this case the report Ex.P/3 was lodged with a considerable delay of about 12 days and when there is a police station in the village Jasrasar where the alleged incident took place, therefore, this delay is fatal and the prosecution case should be thrown out on this ground alone. (2) That statement of the prosecutrix PW7 Rami does not inspire confidence as if two persons would have forcibly raped her, injuries on her person must have been found and absence of injuries on her person makes her statement false one and the learned trial Judge should not have placed reliance on her statement. (2) That statement of the prosecutrix PW7 Rami does not inspire confidence as if two persons would have forcibly raped her, injuries on her person must have been found and absence of injuries on her person makes her statement false one and the learned trial Judge should not have placed reliance on her statement. (3) That since statement of the prosecutrix PW7 Rami is not supported or corroborated by any other evidence including medical evidence, therefore, her statement does not inspire confidence and in these circumstances, learned trial Judge was not right in placing reliance on her testimony. Thus, the findings of conviction recorded by the learned trial Judge against the accused appellants for the offence under Section 376 IPC are erroneous one and they should be set aside. Hence, it was prayed that this appeal be allowed and the impugned judgment and order passed by the learned Addl. Sessions Judge, Bikaner be set aside and the accused appellants be acquitted of the charges framed against them. (4). On the other hand, the learned Public Prosecutor supported the impunged judgment and order passed by the learned Addl. Sessions Judge, Bikaner. (5). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. (6). Before proceeding further, the age of the prosecutrix PW7 Rami on the date of occurrence has to be determined. (7). It may be stated here that best evidence for determination of age is the birth certificate or the school certificate and in case it is available, that would be considered the best evidence and so far as the medical evidence is concerned, since it has margin of error, it would be taken into consideration only when primary evidence which is found in the birth certificate or school certificate is not available. (8). There is no dispute on the point that the margin of error in age ascertained by radiological examination is two years on either side. (9). In the present case, no school or birth certificate of the prosecutrix PW7 Rami has been produced. (10). So far as medical evidence is concerned, the same has been narrated and discussed above and as per the Certificate Ex.P/16 issued by Dr. D.K. Purohit, CW1, the age of the prosecutrix PW7 Rami on the date of occurrence was about 19 years. (11). (10). So far as medical evidence is concerned, the same has been narrated and discussed above and as per the Certificate Ex.P/16 issued by Dr. D.K. Purohit, CW1, the age of the prosecutrix PW7 Rami on the date of occurrence was about 19 years. (11). PW5 Umedaram is the father of the prosecutrix PW7 Rami and in the report Ex.P/3, he has stated her age as 15 years. In cross examination, he has admitted that he cannot say when his children were born and he was not in a position to say their exact date of birth. (12). The prosecutrix PW7 Rami herself has stated that she cannot say when she was born and she cannot say the exact year and date of birth. (13). Looking to all aspects and looking to the fact that in this case, there is no school or birth certificate of the prosecutrix PW7 Rami, the Certificate Ex.P/16 issued by CW1 Dr. D.K. Purohit where he has determined her age about 19 years appears to be correct one as it was not rebutted by any other evidence. (14). Thus, it is concluded that on the date of occurrence, prosecutrix PW7 Rami was above 16 years of age. (15). As already stated above, no injury was found on any part of the body of the prosecutrix PW7 Rami, when she was being examined on 29.8.1985 by CW1 Dr. D.K. Purohit, CW1 Dr. D.K. Purohit further opined that no rape was performed with her recently within a period of two weeks. (16). The next question that arises for consideration is whether the findings of the learned Addl. Sessions Judge convicting the accused appellants for the offence under Section 376 IPC are liable to be confirmed one or not. (17). From perusing the report Ex.P/3 lodged by PW3 Umedaram on 28.8.1985 though the alleged incident took place on 17.8.1985, it appears that when the rape was being committed by the accused appellants with the prosecutrix PW7 Rami, PW1 Modaram reached on the spot and he raised his voice and after hearing his voice, accused appellants ran away from the scene. It further appears that PW5 Umedaram first went to PW4 Rampratap, Sarpanch and apprised him of the whole incident which had taken place with his daughter prosecutrix PW7 Rami. (18). It further appears that PW5 Umedaram first went to PW4 Rampratap, Sarpanch and apprised him of the whole incident which had taken place with his daughter prosecutrix PW7 Rami. (18). PW1 Modaram has been produced by the prosecution and he has stated in his statement recorded in Court that he heard that rape was committed with the prosecutrix PW7 Rami, but nowhere he states that he saw the accused appellants committing rape with the prosecutrix PW7 Rami. (19). PW2 Bagdawat is another witness, who has declared hostile and PW3 Bhinyaram has also been declared hostile. (20). PW4 Rampratap is the witness, whose name is found in the report Ex.P/3 and before whom, PW5 Umedaram narrated the whole incident just after the occurrence. He has also been declared hostile. (21). Thus, the main eye witness PW1 Modaram does not support the case of the prosecution and similarly, PW4 Rampratap also does not support the contents of the report which was lodged by PW5 Umedaram after about 12 days of the alleged incident. (22). PW5 Umedaram is the father of the prosecutrix PW7 Rami and he lodged the report Ex.P/3. Through his statement recorded in Court he substantiates what he narrated in his report Ex.P/3. In cross-examination, he admits the following facts:- (1) That in his village Jasrasar, there is a police chowki. (2) That PW1 Modaram is son of his uncle. (3) That he also knows PW2 Bagdawat, PW3 Bhinyaram and PW4 Rampratap and he has no enmity with them. (4) That he saw the incident at a distance of 30 paunda. (5) That he was told by two Bishnoi women that rape was being committed with his daughter prosecutrix PW7 Rami, but he did not know there names and at that time, PW1 Modaram also came there. (6) That the fact that the alleged incident was also witnesses by these two Bishnoi women, has not been mentioned by him in the report Ex.P/3. (7) That when prosecutrix PW7 Rami was brought to his house, he found injuries on her person. (8) That he also knows PW6 Shiv Narain. (23). Being examining the statement of the prosecutrix PW7 Rami, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix. Burden of Proof (24). (7) That when prosecutrix PW7 Rami was brought to his house, he found injuries on her person. (8) That he also knows PW6 Shiv Narain. (23). Being examining the statement of the prosecutrix PW7 Rami, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix. Burden of Proof (24). 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 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. (25). If the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. The absence of injuries on the body of the plaintiff, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. The absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. (26). 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 merely corroborative. (26). 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 merely 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. The evidence no doubt should not only make it safe to believe that the crime was committed but must in some way reasonably connect or tent to connect the accused with the crime. Corroboration may be by facts and circumstances. (27). Keeping the above principles in mind, the statement of the prosecutrix PW7 Rami is being examined. (28). The prosecutrix PW7 Rami in her statement recorded in Court states that her marriage took place three years back, but Gona Ceremony had not taken place and, therefore, she was living with her father. She further states that accused appellant Shankar came to her after opening his pent and accused appellant Shankar did sex with her and, thereafter, accused appellant Rameshwar opened his pent and he also did the same thing. She further states that she made hue and cry and on hearing her cry, PW5 Umedaram and her uncle Modaram PW1 came there and, thereafter, she told the whole incident to them and also to her mother PW10 Dhudi and, thereafter, the report was lodged. In cross- examination, she admits the following facts:- (1) That village Jasrasar is a very big village. (2) That when alleged incident of rape was told by her to her father PW5 Umedaram, other relatives had also come to know about that incident. (3) That there is a police chowki in the village Jasrasar. (4) That accused appellant Shankar had sex with her for 5-7 minutes and at that time, she was resisting and she received some abrasions during that resistance and she also received injuries on her leg, wrist etc. (3) That there is a police chowki in the village Jasrasar. (4) That accused appellant Shankar had sex with her for 5-7 minutes and at that time, she was resisting and she received some abrasions during that resistance and she also received injuries on her leg, wrist etc. (5) That accused appellant Shankar ran away and before she got up, another accused appellant Rameshwar came and he also had sex with her for 5-7 minutes and, thereafter, both ran away from the scene after taking pents in their hands. (6) That when accused appellant Rameshwar ran away then she made cry. (7) That since she was wearing rubber bangles, they did not break. (8) That PW1 Modaram and PW5 Umedaram came together. (9) That she showed her injuries to doctor at Nokha Hospital. (10) That accused appellants did not bite on her face. (29). The next question is whether in the above facts and circumstances especially when the report was lodged after about 12 days of the alleged incident, reliance can be placed on the statement of the prosecutrix PW7 Rami or not when she was a major lady on the date of occurrence. (30). In my considered opinion, looking to the entire facts and circumstances of the cases, the statement of the prosecutrix PW7 Rami does not inspire confidence on the point that the accused appellants had sex with her against her will. The manner in which she has uttered that first accused appellant Shankar came to her after opening his pent and then he had sex with her for 5-7 minutes and, thereafter, another accused appellant Rameshwar had sex with her for 5-7 minutes and, thereafter, both ray away, itself goes to show that what was being done by the accused appellants with her, that was done with her tacit consent. (31). Had there been a forcible or ravishful act by the accused appellants, she must have received injuries. Absence of injuries on the person of the prosecutrix PW7 Rami is yet another factor to negative the allegation of rape and to show that the accused appellants had intercourse with her with her tacit consent. (32). The medical evidence therefore clearly discloses that the prosecutrix PW7 Rami does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellants. (33). (32). The medical evidence therefore clearly discloses that the prosecutrix PW7 Rami does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellants. (33). The fact that witnesses PW1 Modaram and other witnesses including PW4 Rampratap do not support the case of the prosecution also goes to show that the case of the prosecutrix PW7 Rami that accused appellants forcibly committed rape with her, was not correct one and that is why, the report was not lodged by PW5 Umedaram on the same day though there was a police chowki in the village Jasrasar and it was lodged after about 12 days of alleged incident. (34). The delay in filing FIR especially in sexual offence cannot be a ground to reject prosecution case if delay is properly explained. However, it should also be kept in mind that time time factor has an important role in the context of lodging of an FIR and if there is delay, that should be explained satisfactorily. In this respect, the decision of the Honble Supreme Court in State of Haryana vs. Manoj Kumar (1), may be referred to. (35). In the present case, the alleged incident took placed on 17.8.1985 and as per the statement of PW5 Umedaram, the prosecutrix PW7 Rami received injuries on her person and police chowki was there and he met the Sarpanch of the village, namely, PW4 Rampratap, but no report was lodged by him on the same day and it was lodged after about 12 days and in these circumstances, this delay in the present case cannot be said to have been satisfactorily explained. Thus, this delay is fatal and casts doubt on the prosecution story and rather goes to show that it was not a case of forcible assault or rape on the prosecutrix PW7 Rami by the accused appellants but was a case of consent and that is why, no report was lodged on the same day. (36). For the reasons stated above, it is concluded that the statement of the prosecutrix PW7 Rami does not inspire confidence and no reliance can be placed on her statement as her statement does not get corroboration from other evidence. The medical evidence also does not support her statement. In these circumstance, the learned Addl. (36). For the reasons stated above, it is concluded that the statement of the prosecutrix PW7 Rami does not inspire confidence and no reliance can be placed on her statement as her statement does not get corroboration from other evidence. The medical evidence also does not support her statement. In these circumstance, the learned Addl. Sessions Judge was not right in placing reliance on her statement and thus, the findings of the learned Addl. Sessions Judge convicting the accused appellants for the offence under Section 376 IPC cannot be sustained and the same are liable to be set aside and this appeal deserves to be allowed and the accused appellants are entitled to acquittal. Accordingly, this appeal filed by the accused appellants Shankar and Rameshwar is allowed and the impugned judgment and order dated 1.9.1987 passed by the learned Addl. Sessions Judge, Bikaner are set aside and the accused appellants are acquitted of the charges for the offence under Section 376 IPC. Since the accused appellants are on bail, they need not surrender and their bail bonds stand cancelled.