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2006 DIGILAW 1273 (RAJ)

Ram Lal v. State of Rajasthan

2006-04-20

KHEM CHAND SHARMA

body2006
Honble SHARMA, J.–This criminal appeal by appellant Ram Lal arises out of the judgment and order dated 29.1.85 passed by the Additional Sessions Judge Kishangarh-bas, by which the learned Judge has convicted the appellant for offence under Sections 376 IPC and sentenced him to undergo rigorous imprisonment for 7 years with a fine of Rs. 500/-, in default thereof, to further undergo rigorous imprisonment for 3 months. (2). At the very out set, it may be stated that another accused Vijay Kumar who was convicted and sentenced for offence under Section 376 read with Section 114 IPC had also filed separate appeal against his conviction. During pendency of his appeal, Vijay Kumar died and accordingly this court disposed of his appeal as having become abatted, in view of the provisions of Section 394 Cr.P.C. (3). Succinctly stated the facts of the case giving rise to the present appeal are that on 9.9.81, PW 3 Chiman Ram lodged a written report, Ex. P.3 at Police Station, Kishangarh bas alleging therein that on 8.9.1981 at 4.00 PM while his niece had gone to the forest to collect grass, two boys namely, Ramu and Maku @ Vijay Kumar made her to fall on the earth with an intention to commit rape. The girl raised hue and cry, which attracted the attention of Kyaliram and Shiv Lal who were working at the nearby well. Both these persons came to the place of incident and saw accused Ramu committing rape on the prosecutrix, who on hearing the voice the witnesses, escaped from the scene. The witnesses chased the accused and succeeded in apprehending the accused. Thereafter, they made to accused to stay with them so as to inquire into matter, Lastly, it was alleged that in the night they convened meeting of two villages and then handed over the accused to police in the night itself. (4). On the above report, the police registered a case for offence under Sec. 376 IPC vide FIR, Ext. P 5 and proceeded with the investigation. (5). In the course of investigation, site plan, Ex. P.1 was prepared, the Salvar of the prosecutrix was seized, appellant Ram Lal was arrested, his under-wear was seized, hairs found at the place of incident were also seized and the seized articles were sent to Forensic Science Laboratory for examination. The report of FSL is Ex. P.9. (6). (5). In the course of investigation, site plan, Ex. P.1 was prepared, the Salvar of the prosecutrix was seized, appellant Ram Lal was arrested, his under-wear was seized, hairs found at the place of incident were also seized and the seized articles were sent to Forensic Science Laboratory for examination. The report of FSL is Ex. P.9. (6). The learned trial Court, on the basis of evidence and material collected during investigation, framed charge against the appellant for offence under Sections 376 IPC. The appellant denied the charge and claimed trial. (7). In order to prove its case, the prosecution examined 6 witnesses and got exhibited some documents. The accused was then examined under Section 313 Cr.P.C. He did not examine any witness in his defence. (8). At the conclusion of trial, the learned trial Judge found the prosecution case,as alleged proved and accordingly convicted and sentenced the appellant in the manner stated herein above. Hence the present appeal against conviction. (9). I have heard learned counsel for the parties and perused the impugned judgment, the evidence and material on record. (10). In assailing the conviction, Mr. Balwada, learned counsel for the appellant strenuously contended that though the prosecutrix was subjected to medical examination as has been admitted by PW. 6 Nathu Lal, Investigating Officer, yet the medical jurist who had examined her has not been examined by the prosecution so as to seek corroboration that she was subjected to forcible sexual inter-course. Thus, according to the learned counsel, non-examination of medical jurist is fatal to the prosecution case and as such the conviction of appellant is liable to be set aside on this score alone. (11). I have given my anxious consideration to the above submissions. It is well settled that non-examination of doctor and non production of medical report would not be fatal to the prosecution case if the evidence of prosecutrix and other witnesses is worthy of credence and inspire confidence. I am fortified in my view by a plethora of decisions. Reference may be made to one of the decisions of the Apex Court in State of M.P. vs. Dayal Sahu ( 2005 (8) SCC 122 ). In this case the trial court had convicted the accused for offence under Sec. 376 IPC. I am fortified in my view by a plethora of decisions. Reference may be made to one of the decisions of the Apex Court in State of M.P. vs. Dayal Sahu ( 2005 (8) SCC 122 ). In this case the trial court had convicted the accused for offence under Sec. 376 IPC. However, on appeal against conviction, the High Court acquitted the appellant while giving benefit of doubt, considering the fact that neither the doctor who had examined the prosecutrix was produced in evidence nor the doctors report was produced so as to seek corroboration of the version of the prosecutrix with the medical evidence. The Apex Court reversed the judgment of the High Court and held: ``...Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non- production of doctors report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities. (12). The next argument is more or less similar to the above argument. According to the learned counsel, non-examination of a witness named in the FIR is fatal to the prosecution case. Learned counsel argued that according to written report, Ex. P.3, two persons namely Khayali Ram and Shiv Lal had witnessed the incident. The prosecution has examined only Shiv Lal and intentionally left out Khayali Ram, who could have spoke truth. (13). I have considered the above argument. Suffice it to state that Khayali Ram was cited as a witness in the list of witnesses, but since he passed away during trial of the case there was no question of examining him as a witness. PW. 4 Shiv Lal has certified the fact of his death. Further this fact is fortified by the police report. Suffice it to state that Khayali Ram was cited as a witness in the list of witnesses, but since he passed away during trial of the case there was no question of examining him as a witness. PW. 4 Shiv Lal has certified the fact of his death. Further this fact is fortified by the police report. On the requisition of the Court to bound down the witness to appear in the court, the police on inquiry found that witness Khayali Ram has died and accordingly submitted its report. Otherwise, also it must be observed it is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused. Section 134 of the Evidence Act clearly provides that no particular number of witnesses is required for proof of any fact. I am fortified in my view by a decision of the Apex Court in Pohlu vs. State of Haryana ( 2005 (10) SCC 196 ), wherein their Lordships have observed as under: ``It is true that it is not necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the eye witnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the instrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution. (14). The third argument advanced by the counsel for the appellant was that in the light of the circumstances and the evidence brought on record it cannot be said that appellant committed any offence, rather it was a case of consent. Referring the evidence of PW. 6 Nathu Lal, Investigating Officer, learned Advocate argued that PW. 6 did not find any injury on the person of prosecutrix, which clearly indicates that there was no struggle from the side of prosecutrix and as such she was a consenting party to the sexual inter-course. (15). I have given my thoughtful consideration to the above argument and scanned the relevant evidence. 6 did not find any injury on the person of prosecutrix, which clearly indicates that there was no struggle from the side of prosecutrix and as such she was a consenting party to the sexual inter-course. (15). I have given my thoughtful consideration to the above argument and scanned the relevant evidence. The prosecutrix has categorically deposed that both the accused made her to fall on the earth, gagged her mouth and appellant Ramlal broke the thread (Nara) of his Salwar. In cross examination, the prosecutrix has stated that her Salwar had torn at front of `Nara. She categorically denied the suggestion that she was a consenting party to the sexual intercourse. That apart, the site plan reflects that Gwar plants at the place of incident were found in broken condition. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged. The victim girl was subjected to cross examination considerably on various important aspects of the matter. I find that in the cross examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. (16). That apart, the statement of prosecutrix stands in corroboration with the statement of PW. 4 Shivlal an independent eye witness of the incident. In his examination in chief this witness has stated that it was evening time when he heard cries of a girl. He rushed to the field from where cries were being heard. According to him it was the field of Buti Ram. The witness, pointing towards the prosecutrix has stated that this girl was lying on the ground while accused Ramlal was lying upon her. The pant of Ram Lal was kept at one side. The girl was also naked as her Salwar was on her legs and accused Ram Lal was involved in committing rape on the girl. Vijay was standing at the boundary. Accused Ram Lal was apprehended while he tried to escape from the scene. The accused then pleaded sorry but the witness along with Khyali Ram brought the accused to village and handed him over to the Panch at the School. Vijay was standing at the boundary. Accused Ram Lal was apprehended while he tried to escape from the scene. The accused then pleaded sorry but the witness along with Khyali Ram brought the accused to village and handed him over to the Panch at the School. He was also cross examined by the defence counsel, but nothing could be elicited so as to doubt his veracity or to suggest as to why he would falsely implicate the appellant. (17). It also need be mentioned that no suggestion in cross examination was put to any of the prosecution witnesses either regarding enmity, if any, between the complainant and the appellant or that appellant had any relation with the family of complainant, rather mother of the prosecutrix has categorically denied to have any acquaintance with the appellant or his family. Even, the prosecutrix did not know the appellant by name and she recognized him by face only. It may also be noted that the appellant and the prosecutrix belong to different villages. In the circumstances narrated above, the argument of the learned counsel that the prosecutrix was a consenting party to sexual intercourse has no legs to stand. (18). There is no rule of law that testimony of a victim of rape cannot be accepted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. If the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice. (19). However, in the case at hand, as stated herein above, the evidence of the prosecutrix that she was ravished by the accused is not only corroborated by the evidence of independent eye witness, namely PW 4 Shiv Lal, who had neither enmity with the accused nor intimacy with the father of the prosecutrix but it stands in corroboration with various other circumstances brought on record. Firstly, at Place `X shown in the site plan where offence was committed, the `Guwar Plants were lying broken. Secondly, the seizure memo of Salwar reflects that Salwar of prosecutrix was torn and Nada was found broken. Thirdly the FSL report, Ex. Firstly, at Place `X shown in the site plan where offence was committed, the `Guwar Plants were lying broken. Secondly, the seizure memo of Salwar reflects that Salwar of prosecutrix was torn and Nada was found broken. Thirdly the FSL report, Ex. P.9 clearly mentions that under wear of the accused and Salwar of the prosecutrix were found to be stained with semen. Lastly, accused appellant was caught red handed. (20). Lastly, it is important to take note of the fact that admittedly the medical report regarding rape has not been proved, although available on record, which reveals the fact that prosecutrix an unmarried girl was habitual to sexual intercourse, her hymen had old tears and vagina could admit two fingers, meaning thereby that prosecutrix was previously accustomed to sexual intercourse. As such it has now to be seen as to what would be the effect of these important features? In State of U.P. vs. Pappu @ Yunus and another ( 2005 (3) SCC 594 ), the medical evidence showed that prosecutrix was habituated to sexual intercourse and there was no injury on her body inasmuch as she was a girl of easy virtue and was habituated to sexual inter- course, as is the position in the instant case. The trial court noticed as to how even in the absence of any external injury an offence could have been committed after analysing the doctors evidence. At the conclusion of trial, the trial Judge convicted the appellant. On appeal against conviction, the High Court acquitted the accused on the ground of prosecutrix being a girl of easy virtue. The Apex Court held as under: ``Even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promicuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to any one and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. (21). From what has been observed above, it must be concluded that the prosecution has been able to establish beyond doubt that the prosecutrix, was subjected to forcible intercourse by the appellant. Hence the impugned judgment of the trial court calls for no interference and deserves to be maintained. (22). Resultantly, this appeal fails and is hereby dismissed. The judgment of the trial Court convicting the appellant under Section 376 IPC impugned in this appeal and the sentence awarded to him is maintained. The appellant is on bail. His bail bonds are cancelled. He is directed to surrender himself before the trial Court to undergo the sentence awarded by the trial Court and affirmed by this court. In case of failure on the part of appellant to surrender himself, the trial Court shall proceed in accordance with law to ensure his arrest so that he could be sent to jail to serve out the sentence.