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2003 DIGILAW 727 (RAJ)

Kallu v. State of Rajasthan

2003-05-12

SUNIL KUMAR GARG

body2003
JUDGMENT 1. - This appeal has been filed by the accused appellant against the judgment and order dated 7.3.2003 passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara in Sessions Case No. 68/02 (173/01) by which he convicted the accused appellant for the offence under sections 450 and 376 IPC and sentenced In the followings manner: Name of accused appellant convicted u/s Sentence awarded Kalu 450 IPC Three years SI and to pay a fine of Rs. 200/-, In default of payment of fine, to further undergo one month SI 376 IPC Seven years SI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo 2 months SI Both the substantive sentences were ordered to run concurrently. 2. It arises in the following circumstances: PW 1 Laxmi wife of Lalit (PW 2) aged 20 years (hereinafter referred to as the prosecutrix) lodged an oral report to PW 9 Gopal, SHO Police Station Ghadi District Banswara on 23.4.2001 at about 7.30 PM stating inter-alia that on the previous night at about 10.00 PM, her husband Lalit (PW 2) had gone to attend the marriage in the village and she was alone in the house and the accused appellant entered her house and at that time, she was lying over the cot and thereafter, the accused appellant pressed her and became naked and then tried to commit rape with her and when she cried he put his hand on her mouth and committed rape with her and when the accused appellant was pressing her over cot, her husband Lalit, PW 2 and one Nathu, her Jeth came there and seeing them, the accused appellant ran away in naked condition and thus, the accused appellant committed rape with her against her will. On this report, police chalked out regular FIR Ex.P/1 and started investigation. During investigation, the prosecutrix PW 1 Laxmi was got medically examined for determining her age as well as on the point whether rape was committed with her or not by Dr. S.K. Bhatnagar, PW 8. The medical examination report of the prosecutrix PW 1 Laxmi is Ex.P/4 where the age of the prosecutrix was assessed between 18 to 19 years and PW 8 Dr. S.K. Bhatnagar found no injury on any part of body of the prosecutrix PW 1 Laxmi. S.K. Bhatnagar, PW 8. The medical examination report of the prosecutrix PW 1 Laxmi is Ex.P/4 where the age of the prosecutrix was assessed between 18 to 19 years and PW 8 Dr. S.K. Bhatnagar found no injury on any part of body of the prosecutrix PW 1 Laxmi. The accused appellant was got arrested on 23.4.2001 through arrest memo Ex.P/7. After usual investigation, the police filed a challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 20.8.2002, the learned Sessions Judge, Banswara framed charges against the accused appellant for the offence under sections 450 and 376 IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During the course of trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under section 313 Cr.P.C. was recorded. No evidence was led in defence. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara through judgment and order dated 7.3.2003 convicted and sentenced the accused appellant for the offence under sections 450 and 376 IPC in the manner as Indicated above holding inter-ally that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offences. Aggrieved from the said judgment and order dated 7.3.2003 passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara, this appeal has been filed by the accused appellant. 3. In this appeal, the main contention of the learned counsel for the appellant is that from perusing the statement of the prosecutrix PW 1 Laxmi, It dearly appears that it is a case of consent and thus, the statement of the prosecutirx PW 1 Laxmi on the point that she was forcibly raped by the accused appellant should not be accepted and thus, the findings of conviction recorded by the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara against the accused appellant cannot, be sustained and liable to be set aside and the accused appellant Is entitled to acquittal. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara. 5. Sessions Judge (Fast Track) No. 2, Banswara against the accused appellant cannot, be sustained and liable to be set aside and the accused appellant Is entitled to acquittal. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. 6. So far as the age of the prosecutrix PW 1 Laxmi is concerned, there is no dispute on the point that she is a married lady of matured age and she was habitual to sexual intercourse and from the statement of PW 8 Dr. S.K. Bhatnagar, it is also very much clear that no injury was found on any part of the body of the prosecutrix PW 1 Laxmi. 7. Thus, the medical evidence may be treated as NO in the present case. 8. Since in such cases the best evidence Is of prosecutrix herself, therefore, first her statement has to be seen. 9. Before examining the statement of the prosecutrix PW 1 Laxmi, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner: 1. That the main evidence in all such cases is that of victim herself. 2. That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who Is habitual to sexual intercourse and is found In a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time. 3. That corroboration may be by facts and circumstances. 4. That the injury on the person of the victim, expecially her private parts, had corroborative value. 5. That If the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 10. 5. That If the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 10. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 , the Hon'ble Supreme Court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Burden of proof 11. 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. 12. 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 prosecutrix, 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. 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 be itself sufficient to hold that the prosecutrix was a consenting party. 13. In the light of the above legal position, the statement of the prosecutrix PW 1 Laxmi Is being examined. 14. The prosecutrix PW 1 Laxmi, who lodged the oral report, has stated in her examination-in-chief that when accused appellant entered her house, her husband Lalit, PW 2 had gone to attend the marriage and after coming to her house, the accused appellant closed her mouth and put off her underwear and thereafter, he put off his underwear and became naked and then he put his penis into her vagina and when she cried, her husband Lalit, PW 2 and Her Jeth Nathu came there and thereafter, she lodged the report Ex P/1.In cross examination, she admits the following facts: (i) That accused appellant is her neighbour and he used to make frequent visit to her house. (ii) That after entering her house, the accused appellant first made her undressed and then he put off his clothes. (iii) That the accused appellant had sex with her on the cot. (iv) That she received some abrasions on the back. (v) That the accused appellant remained in her house for near about two hours. (vi) that thereafter, the accused appellant was caught by her husband Lalit, PW 2 and her Jeth Nathu. (vii) That thereafter villagers assembled and it was decided by the villagers that in case the accused appellant deposited a fine, no report would be lodged in the police. (viii) That it is also correct to say that from her house, the accused appellant ran away in naked condition. 15. PW 2 Lalit, who is husband of the prosecutrix PW 1 Laxmi, has stated that on hearing her cries, he went in the house and he found the accused appellant lying over her wife (prosecutrix PW 1 Laxmi) and the prosecutrix PW 1 Laxmi was crying and at that time, the accused appellant was in naked condition. 16. 15. PW 2 Lalit, who is husband of the prosecutrix PW 1 Laxmi, has stated that on hearing her cries, he went in the house and he found the accused appellant lying over her wife (prosecutrix PW 1 Laxmi) and the prosecutrix PW 1 Laxmi was crying and at that time, the accused appellant was in naked condition. 16. The question that arises for consideration is whether in the above facts and circumstances, the findings of the learned Addl. Sessions Judge (Fast Track) No. 2 that prosecutrix PW 1 Laxmi was raped against her will, are liable to be confirmed or not or whether the statement of the prosecutrix PW 1 Laxmi alone is sufficient to make the conviction of the accused appellant for the offence under section 376 IPC or not. 17. In my considered opinion, from perusing the statement of the prosecutrix PW 1 Laxmi and other evidence on record, it cannot be accepted that the appellant had sex with the prosecutrix PW 1 Laxmi against her will and on the contrary it clearly appears that it was a case of consent because of the following reasons: (i) That from the evidence of the prosecutrix PW 1 Laxmi, it clearly appears that the accused appellant used to have frequent visit to her house and that fact reflects that the accused appellant was paramour of the prosecutrix PW 1 Laxmi and was regular visitor to the house of the prosecutrix PW 1 Laxmi. (ii) That the fact that the accused appellant first made the prosecutrix PW 1 Laxmi undressed and, thereafter, he himself became undressed itself goes to show that whatever was going on between the accused appellant and the prosecutrix that was with the consent of the prosecutrix PW 1 Laxmi. (iii) That the medical evidence in the present case is nil and thus, from medical evidence, there is no corroboration to the statement of the prosecutrix PW 1 Laxmi. (iv) That the prosecutrix PW 1 Laxmi did not receive any Injury and thus, absence of injury on the person of prosecutrix PW 1 Laxmi especially on private part is yet another factor to negative the allegation of rape and to show that the accused appellant had sexual intercourse with her with her consent. (iv) That the prosecutrix PW 1 Laxmi did not receive any Injury and thus, absence of injury on the person of prosecutrix PW 1 Laxmi especially on private part is yet another factor to negative the allegation of rape and to show that the accused appellant had sexual intercourse with her with her consent. The medical evidence clearly discloses that prosecutrix PW 1 Laxmi does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellant. From this, the only irresistible inference can be that she was a consenting party. (v) That the fact that when PW 2 Lalit and Nathu entered the house of the prosecutrix PW 1 Laxmi, they found the accused appellant lying over the prosecutrix itself goes to show that sex was going on with her tacit consent. (vi) That the fact that the accused appellant remained In the house of the prosecutrix PW 1 Laxmi for about 2 hours itself negatives the allegation of forcible rape and rather goes to show that whatever was going on, that was going on with the tacit consent of the prosecutrix PW 1 Laxmi. 18. Thus, for the reasons stated above, looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the prosecutrix PW 1 Laxmi was a consenting party and all the activities right from the beginning were going on with her tacit consent and she voluntarily participated in such act and, therefore, the statement of the prosecutrix on the point that the accused appellant committed rape with her against her will cannot be said to be reliable and trustworthy especially when there is no corroboration to her statement and in view of this conclusion, the findings of the learned Addl. Sessions Judge (Fast Track) No. 2, Banswara by which the accused appellant was convicted for the offence under sections 376 and 450 IPC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal. Accordingly, this appeal filed by the accused appellant Kalu Is allowed and the judgment and order dated 7.3.2003 passed by the _learned Addl. Sessions Judge (Fast Track) No. 2, Banswara are set aside and the accused appellant is acquitted of the charges framed against him. Accordingly, this appeal filed by the accused appellant Kalu Is allowed and the judgment and order dated 7.3.2003 passed by the _learned Addl. Sessions Judge (Fast Track) No. 2, Banswara are set aside and the accused appellant is acquitted of the charges framed against him. Since the accused appellant is in jail, he be released forthwith, if not uired in any other case. Appeal Allowed - Conviction Set Aside. *******