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2004 DIGILAW 226 (HP)

Ram Bhaijan v. State Of Himachal Pradesh

2004-09-16

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. Appellant Ram Bhajan, hereinafter referred to as "the reused", was tried and convicted by the learned Sessions Judge, Una, for an offence punishable under Section 376 of the Indian Penal Code in Sessions Case no. 20 of 2002 by her impugned judgment dated August 26, 2003 the accused has been sentenced to: "Undergo rigorous imprisonment for seven years and to pay a fine of rupees 5000/-. In default of payment of fine, the accused was to undergo further imprisonment for six months." 2. Aggrieved, the accused is in this appeal. 3. Accused was Poojari at Thanikpura Radhe Shyam Temple. He shifted to Panjawar and became priest of the Temple at Panjawar. He was living at Panjawar with Pujari Madan Lal at the time of occurrence. Complainant is resident of Manikpura. She is married to one Suresh Kumar. Two daughters and son were urn out of her wedlock. Her husband along with his family shifted to Thanikpura in 596-97. Accused was also living with his father in, Thanikpura Temple. Prosecution case: 4. On February 14, 2002, the victim came from Thanikpura to Shiv Bari landir Gagret to offer prayers at the Temple of Lord Shiva. When she was going to temple, accused met her who was standing by the side of the path. When she turned back after offering prayers at about 12.00 noon, accused caught her from the neck, laid her down on the ground and committed sexual intercourse with her without her consent. She struggled to rescue herself and gave tooth bite on the tiger of the accused. She went back to the Temple and narrated the incident to priests of Shiv Bari Mandir. Those priests sent Ravinder Kumar (PW2) to escort her and board her safely on the bus. On her way back, accused shouted that k would not spare her in future. She got down from the bus at Kinu-Aloh near Sapat Devi Temple. She narrated the incident to Jogi Rajnath Poojari of Sapat Devi lemple. Jogi Raj Nath (PW10) took her to Police Station, Gagret where a complaint has lodged in terms of First Information Report Exhibit PW1/A. She was medically examined by Dr. Mrs. Neenu Narula, Medical Officer, C.h.C. Gagret. Dr. She narrated the incident to Jogi Rajnath Poojari of Sapat Devi lemple. Jogi Raj Nath (PW10) took her to Police Station, Gagret where a complaint has lodged in terms of First Information Report Exhibit PW1/A. She was medically examined by Dr. Mrs. Neenu Narula, Medical Officer, C.h.C. Gagret. Dr. Narula was the opinion that though the complainant was subjected to sexual intercourse but could not say how long back such intercourse took place as she was a married woman. 5. The accused was convicted by the learned trial Judge on the basis of the sole evidence of the complainant. The defence of the accused, as put to the various witnesses and in his statement recorded under Section 313 of the Code of Criminal Procedure is that he has been falsely implicated by the victim as she was insisting : the accused to have sexual relations with her which was not acceptable to him. The prosecutrix thereafter started harassing him and he left Thanikpura shifted to village Panjawar. 6. Mr.M.S. Kanwar, learned counsel for the applicant and Mr. Ashok Chaudhary learned Additional Advocate General were heard. was also taken through the evidence. 7. Mr. Kanwar assailed the conviction on the ground that the evidence of the victim does not inspire confidence and the learned Sessions Judge erred in convicting the accused on the basis of her testimony. 8. It is true that the entire prosecution case rests on the evidence of the victim. Victim was medically examined, as noticed earlier, by Dr. Neenu Narula Doctor Narula found widespread bruise on the anterior side of the neck. So far injury on the neck of the victim is concerned; Dr Narula was unable to give the duration of the injury. The victim complained of pain while swallowing saliva. No other injury was found on any part of the body of the victim. Two vaginal swabs were taken and sent to Forensic Science Laboratory Junga for chemical analysis alongwith underwear and salwar which the prosecutrix was wearing at the time of examination. The Chemical Examiner found stains of human semen on the underwear and salwar of the victim. Stains of human semen were also found on the vaginal swab along with blood. No semen stain or blood was found on the trouser of Ram Bhajan. It is in view of the report of the Chemical Examiner that Dr. The Chemical Examiner found stains of human semen on the underwear and salwar of the victim. Stains of human semen were also found on the vaginal swab along with blood. No semen stain or blood was found on the trouser of Ram Bhajan. It is in view of the report of the Chemical Examiner that Dr. Narula opined that victim was subjected to sexual intercourse but could not give the time when sexual intercourse took place. Accused was also medically examined by Dr. Sandeep Narula, husband of Doctor Neenu Narula, on February 15, 2002. the report of Dr. Narula is Exhibit PW5/C. He did not find any injury on the person of the accused. In his opinion, there was nothing to suggest that accused was not capable of sexual intercourse. Dr. Narula was not examined as witness but the Medico Legal Certificate was exhibited in the evidence of Dr. (Mrs.) Narula who stated that the Medico Legal Certificate of the accused Exhibit PW5/C is signed by her husband Dr. Sandeep Narula. The report is not disputed by the accused. 9. It is true that the testimony of the victim of rape requires no corroboration The evidence has to be appreciated on the principles of probabilities. A conviction can be based on the sole testimony of the victim without corroboration in material particulars if believed. It is only if 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 as required in the case of an accomplice. The Apex Court in State of Rajasthan v. N.K (Accused) AIR 2000 SC 1812 observed: "Assurance, short of corroboration as understood in the context of any accomplice would do. If the evidence of prosecutrix inspires confidence, It must be relied upon without seeking corroboration of her statement in material particulars. However, 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." 10. In the present case, it is difficult to implicitly rely upon the evidence of the victim. 11. However, 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." 10. In the present case, it is difficult to implicitly rely upon the evidence of the victim. 11. It is the evidence of the victim that on the date of occurrence, she came to Shiv Bari Mandir near Gagret by bus and reached Shiv Bari at about 11.30 a.m. She met the accused while going to the temple. On her return back, at about 12.00 noon, accused caught her from the neck and laid her on the ground, committed sexual intercourse with her. She resisted and gave a tooth bite on the finger of his hand. The accused also snatched her bag. She returned back to the Temple and narrated the entire incident to the three priests present in the temple. The priests sent her along with Ravinder Kumar to safely board her in a bus. Surprisingly, none of these three priests have been examined as witness. 12. Ravinder Kumar (PW2) does not support the victim. It is the evidence of Ravinder Kumar that victim came weeping to the temple Shiv Bari at about 2.00 P.M. and alleged that some boy has beaten her up and she did not complain of rape or anything else. This witness was cross-examined at length by the learned Public Prosecutor but without any tangible result. In cross-examination, complainant admitted that accused was living in village Thanikpura before he shifted to Panjawar. It is her evidence that Suraj Nath Poojari of Sapat Devi Mandir was known to her for more than one year and she is a regular visitor to him. In her supplementary statement to the Police Exhibit DA, she told the Police that she shared meal with the accused at the place of incident on that very day. This fact erodes her credibility. 13. In her supplementary statement to the Police Exhibit DA, she told the Police that she shared meal with the accused at the place of incident on that very day. This fact erodes her credibility. 13. It is difficulty to believe that victim was forcibly taken from the path which at the relevant time was very busy because of the devotees going to and coming back from the Temple Though she denied the suggestion that she had been persuading the accused to have sexual relations with her which was not acceptable to the accused but her conduct in having meals with him on the very day of occurrence and not disclosing that fact in the First Information Report suggests otherwise. Though admittedly, Police Station Gagret was only 2 Kms away from the place of occurrence and the complainant was so informed by the shop keepers of the Bus Stand, as stated by her, yet she instead of going to the' Police Station to report the incident, decides to go home first. In her own words, "the person who came to board me on the bus and the shopkeepers of that Bus Stand told me that Police Station Gagret is just 2 Kms from there but wanted to go home first." Curiously, she did not, in fact, go back home nor she thought it proper to either contact her husband or otherwise inform him of the incident. She instead got down from the Bus to meet Jogi Suraj Nath, Poojari of Sapat Devi Mandir. It was after confabulations with Jogi Suran Nath that they both decided to lodge the report with the Police Station Gagret about the victim having been raped by the accused. She admits in no uncertain terms that she did not narrate the incident to any of the co-villagers. Her explanation is that villagers hold grudge against her. She condemns the entire community of village without disclosing the nature of grudge held against her by the villagers. 14. She admits in no uncertain terms that she did not narrate the incident to any of the co-villagers. Her explanation is that villagers hold grudge against her. She condemns the entire community of village without disclosing the nature of grudge held against her by the villagers. 14. The conduct of the victim in not informing her husband about the incident, not immediately going to the Police Station form the place of incident which was only 2 km, away on the pretext that she wanted to go home first to inform her husband, not going to her home and instead getting down from the bus at Sapat Devi Mandir which Mandir, again is close to her house, confabulating with Suraj Nath Poojari who is not related to her in any manner and then in his company, returning back to Gagret to lodge the report with the Police renders her testimony open to doubt and unreliable. 15. This apart, it is the evidence of the victim that when she was being sexually assaulted by the accused. She struggled to rescue herself and gave a tooth bite on the finger of the accused. The Doctor who medically examined her did not find any struggle marks on any part of her body. No injury was found on the person of the accused on his medical examination the next day of the occurrence. No injury was found on any of the fingers of the accused. Statement of the Victim that she gave tooth bite on the finger of the accused is proved to be untenable. The story was made up by the complainant simply to show that she struggled to get rid of the accused. Non-examination of any of the three priests to whom she narrated the incident first in time also makes her version doubtful. It can legitimately be presumed that had these witnesses been examined, they would not have supported the version of the victim. 16. There is no reason to discard testimony of Ravinder Kumar (PW2) who boarded the complainant in the Bus. It is his evidence that complainant merely stated that some person has given her beatings. She did not name the accused either with the priests of Shiv Bari Mandir or Ravinder Kumar. Ravinder Kumar has no reason to make a false statement. There is no reason to discard testimony of Ravinder Kumar (PW2) who boarded the complainant in the Bus. It is his evidence that complainant merely stated that some person has given her beatings. She did not name the accused either with the priests of Shiv Bari Mandir or Ravinder Kumar. Ravinder Kumar has no reason to make a false statement. It is not the case of the prosecution that this witness was won over by the accused as was known to him. 17. It is the evidence of Head Constable Paramjit Singh (PW3) that at the relevant time, accused was living with Poojari Mohan Lai at Radhe Shyam Temple Panjawar and during the search of the belonging of the accused, photographs of the complainant were recovered from his attach. These photographs are placed on record as Exts. P7 and P8. Neither the accused nor the prosecution has explained as to how these photographs came to be in possession of the accused. The photographs of the complainant with the accused would show their close relationship if not intimate. 18. Jogi Suraj Nath was examined as PW10. It is his evidence that the victim told him that Ram Bhajan throttled her and she became unconscious. When she regained consciousness, she found her salwar and underwear open. The accused had committed rape on her. Complainant, on the other hand, as noticed earlier, is categorical that she resisted the sexual assault on her. She struggled and gave tooth bite on the finger of the accused. Thus the version given by Meena Kumari is contradicted by Suraj Nath. According to this witness, the complainant had visited his temple only twice prior to the incident. However, according to the complainant, she had known Jogi Suraj Nath for one year. 19. Taking into consideration the features of this case and the probability factor, the possibility of false implication of the accused cannot be ruled out. The defence of the accused that he has falsely been implicated is probalised by the evidence discussed above. The uncorroborated testimony of the complainant that she was sexually assaulted by the accused without her consent is open to doubt. 20. In the presence case, it will not be safe to convict the accused solely on the basis of uncorroborated testimony of the complainant which does not inspire confidence. The uncorroborated testimony of the complainant that she was sexually assaulted by the accused without her consent is open to doubt. 20. In the presence case, it will not be safe to convict the accused solely on the basis of uncorroborated testimony of the complainant which does not inspire confidence. Learned trial Judge gravely erred in convicting the accused on the basis of the tainted evidence of the complainant which is not corroborated by any evidence. 21. For the foregoing reasons, this appeal is allowed. The conviction and sentence of the appellant is quashed and set aside. 22. The accused stands acquitted. Fine if deposited by the accused, shall be refunded back to him. The accused shall be set at liberty forthwith.