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2003 DIGILAW 305 (JK)

Saleem v. State Of J. &K.

2003-10-09

Y.P.NARGOTRA

body2003
The appellant-accused was tried in case 15/A Sessions for commission of offence under section 376/341 RPC in the Court of Session Judge, Udhampur. Learned Sessions Judge by his Judgment dated 12th December 2000, convicted the appellant, however, for an attempt to commit rape under section 376 read with section 511 RPC and sentenced him to undergo rigorous imprisonment of two years and a fine of Rs. 1,000/- and in case of default of payment of fine, the accused shall undergo further simple imprisonment of four months. In the event of recovery of the fine, the same was directed to be paid to the prosecutrix, as compensation. 2. Factual matrix of the prosecution case in brief is that on 7th June 1999, Mst Renu Bibi (W/o PW Din Mohd) had gone to her parental house situated at Dedoora and in the evening she was returning back to her in-laws house. When she was still to cover about one Kilometer distance, the accused Mohd Saleem appeared in the way and pounced upon her. He made her to inhale some substance with which she felt giddy. She was gagged and laid down on the ground, her Shilvar was untied and then the accused forcibly committed sexual intercourse with her. The accused thereafter threatened her of dire consequences if she disclosed about the occurrence to anybody and therafter the accused left the scene of occurrence. The Complainant reached her house where she found her mother-in-law only and she disclosed her about the occurrence. The FIR in respect of the incident came to be lodged on 9th June 1999 at 17.30 hours. In the FIR, for explaining the delay, the prosecutrix stated that she had undergone an operation for Appendicitis and that because of the occurrence the pain had aggravated, as such; she could come for lodging the report only on that day i.e. on 9th June 1999. On the report of the prosecutrix, a FIR was registered and investigation was commenced. During the course of investigation, site plan was prepared and the prosecutrix was sent for medical check up. After obtaining the medical report and recording the statement of witnesses under section 161 Cr.P.C, the investigation culminated into the charge sheet which was instituted in the Court of Chief Judicial Magistrate, Udhampur, who in turn committed the case for trial to the Court of Sessions. After obtaining the medical report and recording the statement of witnesses under section 161 Cr.P.C, the investigation culminated into the charge sheet which was instituted in the Court of Chief Judicial Magistrate, Udhampur, who in turn committed the case for trial to the Court of Sessions. In the Court of Sessions Judge, Udhampur, the accused was charged for commission of the offence under section 376/341 RPC and was called upon to plead. The accused pleaded innocence and, therefore, the prosecution was directed to lead evidence of proving the charge. The prosecution examined PWs Mst. Skina Bibi (Mother-in-law of the prosecutrix), Mst. Renu Bibi(prosecutrix), Din Mohd (husband of the prosecutrix) Dr. Renu Sudha and Hans Raj, ASI. 3. The prosecutrix in her statement supported the prosecution version and in cross-examination stated that she was dragged by the accused on stony surface with which she suffered abrasions on her back, abdomen and face and that because of the occurrence the stitches existing on her body because of appendicitis operation had opened. PW Dr. Renu Sudha, who examined the prosecutrix, has testified that except an abrasion 1 Cm x pencil line breadth on the chin reddish brown in colour, no mark of injury or violence was seen by her on the body of the prosecutrix. She further stated that no bloodstains or semen stains had been found on the private parts or legs of the lady. In her opinion, the prosecutrix was habitual to sexual intercourse and no intercourse had been found on the lady in the recent past. PW-Skina Bibi, who is the mother-in-law of the prosecutrix and to whom, as per the FIR and the claim of the prosecutrix in her chief examination, She had disclosed about the occurrence on reaching her house, when came in the witness box, simply stated that when the prosecutrix had returned back late in the evening, she told her only that the accused had beaten and abused her. PW Din Mohd, husband of the prosecutrix has stated that he was away from his house on the date of occurrence. When he reached back to his house, his wife told him about the occurrence and on the next day he went to Katra along her and his father where she had lodged the report EXPWRB. PW Hans Raj, ASI is the investigator and he has deposed about the steps taken towards the investigation of the case. When he reached back to his house, his wife told him about the occurrence and on the next day he went to Katra along her and his father where she had lodged the report EXPWRB. PW Hans Raj, ASI is the investigator and he has deposed about the steps taken towards the investigation of the case. 4. From the statements of PWs Din Mohd and Skina Bibi, it is clear that none of them had seen the occurrence and PW Din Mohd is the only witness to whom the prosecutrix disclosed about the occurrence one day prior to the lodging of the FIR. About the occurrence, only testimony of the prosecutrix was thus available before the learned trial Court and the learned trial court after appreciating the evidence of the prosecutrix, came to the conclusion that offence under section 376/341 RPC was not made out against the accused and instead offence under section 376 read with section 511 RPC was made out for which the accused has been convicted and sentenced as aforesaid. 5. Mr.Pawan Jandial, learned counsel for the appellant has challenged the finding of the learned sessions Judge by contending that in the circumstances of the case, the sole testimony of the prosecutrix in the absence of corroboration on the material particular could not be lawfully relied upon in view of the fact that there was inordinate delay in lodging the FIR, as the explanation put forth by the prosecutrix for explaining the delay in filing the FIR stood contradicted by her testimony before the Court. Learned counsel further argued that it was the positive stand of the prosecutrix in her deposition before the Court that she was dragged over a stony surface for a distance of 20 Yds., in consequence whereof, she sustained multiple injuries but she stands contradicted in this behalf by the evidence of PW Dr. Renu Sudha, who had examined her during the course of investigation. Thus, there was no corroboration or support from the medical evidence to lend assurance to the statement of the prosecutrix. Mr. Jandial, learned counsel for the appellant submitted that in view of this inherent weakness in the prosecution evidence, learned trial court should not have placed reliance on her statement to hold the accused guilty for an offence of attempt to commit rape. 6. Per contra, Mr. Mr. Jandial, learned counsel for the appellant submitted that in view of this inherent weakness in the prosecution evidence, learned trial court should not have placed reliance on her statement to hold the accused guilty for an offence of attempt to commit rape. 6. Per contra, Mr. A.S. Dogra, learned Deputy Advocate General has argued that lawfully conviction can be recorded on the sole testimony of the prosecutrix. He argued that prosecutrix has given a consistent account of the occurrence, which inspires the confidence of the Court for being relied upon. Therefore, according to him, no exception should be taken to the view of the trial court as expressed in the impugned Judgement. 7. The delay in lodging the First Information Report per se does not make the prosecution case doubtful. But inordinate delay in the absence of explanation certainly alerts the mind of the court for invoking the rule of caution for interpreting the evidence of the prosecution. There is no rule of law that sole testimony of witness cannot be accepted without its corroboration on material particulars. But acting on the rule of caution, the Court has evolved the practice which has crystallized into rule of law that in appropriate cases, the court may insists for corroboration for accepting the evidence of a witness. Where corroboration should be insisted depends upon the circumstances in which the offence is alleged to be committed and the nature of the offence also. The offence of rape is of such a nature which is invariably committed in the privacy or in a secluded place where the chances of witnesses seeing or being around the place of occurrence is very remote. In such situation, to insist for corroboration from the evidence of independent witnesses is like asking for some thing, which is impossible, and, therefore, in the offence of rape, the victim herself finally happens to be the only witness of the crime. She being the victim of the crime is to be treated as an injured witness and test which can be applied for judging the crediblity and truthfulness of such witness is to see how she has faired in the cross-examination and seeing whether her version is probable. She being the victim of the crime is to be treated as an injured witness and test which can be applied for judging the crediblity and truthfulness of such witness is to see how she has faired in the cross-examination and seeing whether her version is probable. For establishing the probability of the commission of the offence it may some time be felt necessary for the satisfaction of the judicial conscience of a court that at least the fact of the victim having been subjected to sexual intercourse is proved. In the present case, the medical evidence tendered by the prosecution does not show that the prosecutrix was subjected to sexual intercourse. No injury on the private parts of the prosecutrix has been found in the medical examination despite the fact that the prosecutrix claimed in her statement that she was dragged on a stony surface on her back and on her front due to which she had sustained abrasions on her back and abdomen from which blood had also come out. She has admitted in the cross-examination that she had shown these injuries to the Doctor. The absence of the injuries on the back and front of the prosecutrix as stated by the Doctor show that the version put forth by the prosecutrix before the court was not a true version. This apart, no semen stains were detected from her person or clothes on her clinical examination by the Doctor. The prosecutrix further claims that on reaching her house, she disclosed about the occurrence to her mother-in-law, but she has only stated in her statement that prosecutrix had disclosed that in the way she was beaten up and abused by the accused. The prosecutrix thus cannot be believed that she had disclosed about the occurrence to her mother-in-law on her reaching at the house and therefore, her conduct in not disclosing about the occurrence to her mother-in-law immediately on her reaching at the house appears to be unnatural. This apart, the FIR was lodged in the case on the third day of the occurrence. In the FIR, the reason put forth by the prosecutrix for explaining the delay is that she had been operated upon for Appendicitis. This apart, the FIR was lodged in the case on the third day of the occurrence. In the FIR, the reason put forth by the prosecutrix for explaining the delay is that she had been operated upon for Appendicitis. The pain on account of the operation had aggravated and, therefore, was not in a position to reach the Police Station for lodging the report immediately after the occurrence or on the next day. Firstly, the Doctor, who examined the prosecutrix has not stated any thing about the existence of operational injuries on the person of the prosecutrix and secondly, the prosecutrix when came in the witness box, stated that on the third day when her husband came back home, she disclosed about the occurrence to him and her father-in-law who took her to Police Station, Katra where the report was lodged. So there is contradiction in the explanation given in the FIR as well as in her testimony before the Court. 8. Thus, medical evidence does not support the prosecution about the commission of the sexual intercourse with the prosecutrix. There was total absence of injuries on the back and private parts of the prosecutrix. There is contradiction in explaining the delay caused in lodging the FIR. These are major infirmities in the case of the prosecution, which go to the root and this throws sufficient doubt on the story of the prosecution. In the face of these infirmities, in my view, learned trial Court was not justified in relying upon the sole testimony of the prosecutrix. The prosecution, therefore, cannot be said to have proved its case cogently, completely and beyond all reasonable shadow of doubt. Therefore, Judgement of learned trial Court cannot be sustained. 9. Therefore, the appeal is allowed and Judgement of learned trial court is set aside. The accused is acquitted of the charge.