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2004 DIGILAW 1009 (RAJ)

Sheoki @ Sheokat Ali v. State of Rajasthan

2004-07-20

SHIV KUMAR SHARMA

body2004
Honble SHARMA, J.–The appellant was accused on the file of learned Special Additional Sessions Judge (Women Atrocities Cases) Sri Ganganagar bearing No. 49/98. Learned Special Additional Sessions Judge vide judgment dated August 12, 2002 convicted and sentenced the appellant under Section 376 IPC to suffer rigorous imprisonment for ten years and fine of Rs. 10,000/- in default to further suffer rigorous imprisonment for two years. (2). As per prosecution story Nirmala Devi prosecutrix (PW.2), who was admitted in the hospital on February 17, 1998, stated in her parcha bayan that in the preceding day when she had gone to graze her cows in the field, the appellant came over there, caught hold of her and took her to a pit. Thereafter the appellant forcibly opened the string of her salvar and committed raped on her. She made attempt to cry but her mouth was gagged. After committing rape the appellant fled away. She then came to the hospital along with her parents. On the basis of parcha bayan the police station Gharsana registered FIR No. 66/1998 under Section 376 IPC and investigation commenced. The prosecutrix was medically examined, statement of witnesses under Section 161 Cr.P.C. were recorded, site was inspected and the appellant was arrested. On completion of investigation charge sheet came to be filed. In due course the case came up for trial before learned Special Additional Sessions Judge (Women Atrocities Cases) Sri Ganganagar. Charge under Section 376 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as seven witnesses. The appellant in his explanation under Section 313 Cr.P.C. claimed innocence and stated that false case was instituted against him at the behest of one Rafiq. Two witnesses in defence were examined by the appellant. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). Mr. M.K. Garg, learned counsel for the appellant vehemently canvassed that the prosecutrix did not know the appellant prior to the incident, in such circumstances it was necessary to get the identification parade of the appellant conducted. it is further urged that the injuries sustained by the prosecutrix could not be the result of result of rape. The prosecutrix was the only witness and her evidence ought to have been scrutinized crytically. it is further urged that the injuries sustained by the prosecutrix could not be the result of result of rape. The prosecutrix was the only witness and her evidence ought to have been scrutinized crytically. Since necessary witnessed Hari Kishan, Jaswant and Mukh Ram were not examined by the prosecution, whole prosecution story becomes doubtful. It is further urged that the defence witnesses of the appellant were not properly examined and thus conviction and sentence against the appellant cannot be sustained. (4). Per contra, Mr. JPS Chaudhary, learned Public Prosecutor supported the impugned judgment and contended that the prosecutrix Nirmala Devi is wholly reliable witness since her testimony could not be shattered in the cross examination. She was rightly relied on by the trial court. In view of the statement of Dr. Chandra Bhan Middha (PW.1) that the rae was committed on Nirmala Devi the impugned judgment of the court below is not required interference. (5). I have pondered over the rival submissions and scanned the material on record. (6). Before proceeding further it will be appropriate to have a close look at the Medical Examination Report (Ex.P-1) of Nirmala Devi, which reads as under:- ``Examination done in the presence of Dr. Renu Middha. Written consent of her parent taken before examination. M.I. Black mole Ltd. side of face on lateral to nose General Examination: Average built female. She cannot walk. Mencess is not started. Injuries Abrasions: 1. Linear abrasion 2 on the lateral side of the forearm upper 1/3. 2. Linear abrasion 1,1/2" just3" proxternal to above injury. All injuries are simple, blunt & within 24 hours old. Examination proper: 1. Pubic hair & axillary hair are not present. 2. She can not walk. 3. There is fresh bleeding from the vagina on touching. 4. Hymen shows fresh tears with bleeding on touching. 5. Lacerated wound 5cm x 2cm x muscle deep on the post side of vagina & 2nd degree perinal tear. 6. Two vaginal smear slides taken from the post part fosni of vagina send for the chemical examination Jaipur to detection of spermatoza. Opinion: There is strong possibility of sexual offence because there is fresh hymen tears, 2nd degree perineal tears. Bleeding from the vagina present (on touching). Clots present in vagina she cannot walk. 6. Two vaginal smear slides taken from the post part fosni of vagina send for the chemical examination Jaipur to detection of spermatoza. Opinion: There is strong possibility of sexual offence because there is fresh hymen tears, 2nd degree perineal tears. Bleeding from the vagina present (on touching). Clots present in vagina she cannot walk. However two vaginal smear slides taken from the post fosmix of vagina and slide for the chemical examination Jaipur to detect the spermatoza. (7). The appellant Sheoki @ Sheokat Ali was also medically examined and his injury report is Ex.P-2, which reads as under:- ``M.I.old scar mark size 3 cm x 2 cm on the lateral side of Rt. Leg upper 1/3. General Examination: Average built small, no cynosis, No jaundice, No animia. No systinance disease. Normal hair at the axilla, pubic, scalp and face. Injuries: 1. Abrasion 5 cm x 2 cm on the upport 1/3 of Rt. Thigh. 2. Abrasion 6 cm x 2 cm on the lateral side of above injury. 3. Abrasion 3 cm x 2 cm on the post side middle 1/3 of Lt. Forearm. 4. Abrasion 3 cm x 2 cm on the lateral side of Rt. eye. 5. Bruise 8 cm x 3 cm on the Rt. buttock region. All injuries are simple. Blunt in nature & within 24 hours. Local Examination: Scorten & Penis normally develop and circumvision is done segema absent. No local disease or infection. Cremastic Veflex present. No local injury. Opinion: There is nothing to suggestive that the male examine is not capable of doing sexual intercourse. (8). Coming to the testimony of Dr. Chandra Bhan Middha (PW.1), I find that on the date of incident the prosecutrix Nirmala categorically stated that the injuries sustained by Nirmala Devi on her private parts could not have been caused by a fall. The appellant was fit to commit sexual intercourse and Nirmala Devi was raped. Nirmala Devi (PW.2) identified the appellant in the court and deposed that he committed rape on her. There in nothing in her cross examination that could shatter her testimony. (9). In the statement under Section 313 Cr.P.C. the appellant stated that his relations with Rafiq were inimical and because of strained relations, Rafiq persuaded the prosecutrix to lodge false case against him. He further stated that he was not in the village on the date incident. There in nothing in her cross examination that could shatter her testimony. (9). In the statement under Section 313 Cr.P.C. the appellant stated that his relations with Rafiq were inimical and because of strained relations, Rafiq persuaded the prosecutrix to lodge false case against him. He further stated that he was not in the village on the date incident. I have carefully scrutinised the testimony of Munsif Ali (DW.1) and Attu Khan (DW.2) and I find them wholly unreliable witness. Attu Khan (DW.2) in his cross examination stated that the appellant asked him to depose in the court but admitted the incident between the appellant and the prosecutrix. Munsif Ali (DW.1) also admitted that the had knowledge that a case against the appellant was registered. The defence introduced by the appellant appears to be after though and is of no help to the appellant. (10). It is well settled that in order to establish the charge under Section 376 IPC the prosecution must prove:- (i) that the accused has sexual intercourse with the woman in question; (ii) that the act was done under circumstances falling under any of the five descriptions specified in section 375; (iii) that such woman was not the wife of accused, or, if she was his wife, she was under fifteen years of age; (iv) that there was penetration. In the instant case from the testimony of Nirmala Devi (PW.2) and Dr. Chandra Bhan Middha (PW.1) it has been established beyond reasonable doubt that the sexual intercourse was committed by the appellant with Nirmala. The age of Nirmala Devi at the time of incident was 10 year and from her testimony I find her of matured understanding. It is well settled by a catena of decisions of the Supreme Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for a conviction in rape case. Having carefully examined the material on record, I am of the view that the impugned judgment does not suffer from any basic infirmity and the `probabilities factor does not render it unworthy of credence. (12). For these reasons the appeal being devoid of merit stands dismissed.