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2007 DIGILAW 127 (JK)

Balbir Singh v. State Of J. &K.

2007-07-12

J.P.SINGH

body2007
1. Convicted on a trial held by Learned Additional Sessions Judge, Reasi, under Section 376 of the Ranbir Penal Code and sentenced to seven years rigorous imprisonment and a fine of Rs. 2000/-, Balbir Singh, appellant, has come up in appeal to this Court. PROSECUTION CASE: 2. The prosecution story goes like this:-- The prosecutrix, (decency may not permit the disclosure of her name in the judgment), accompanied by other women folk of her village had gone to Chilly Dhar, a place located about 4/5 kilometers away from her house to collect fodder (grass). The appellant, a resident of her village, Sain Ranjan, too had gone in the Jungle to collect the fodder. Taking advantage of the situation, he took the Prosecutrix to a nearby Nallah and forcibly committed sexual intercourse with her. This was against her will. In the process of resisting the forcible sexual intercourse, the prosecutrix received injuries on her back and her clothes were torn. The Prosecutrix is stated to have raised voice but none had come to her rescue. While leaving the prosecutrix on spot, the appellant had threatened to do away her in case she disclosed about the occurrence to her parents. Lifting her bundle of grass the prosecutrix returned home in the evening to narrate about the occurrence to her mother, PW5 Krishna Devi, who, in turn, informed PW2 Narayan Dass, her father. Narayan Dass had sent for Rikhi Singh, father of the appellant, but only to get bashing from him, the appellant and his brother Guchoo, who too had come along with Rikhi Singh. The Prosecutrix too is stated to have received a Lathi blow from Balbir. Singh for having disclosed the occurrence to her parents. THE TRIAL: 3. Pursuant to a committal order passed by the learned Judicial Magistrate 1st Class, Reasi, the case was committed to learned Additional Sessions Judge, Reasi, who, on finding a prima facie case against the appellant, framed charge against him under Section 376 of the Ranbir Penal Code. Denying the charge, the appellant claimed to be tried. The prosecution examined Narayan Dass and Krishna Devi, the parents of the prosecutrix, the prosecutrix, Mst. Sudhan, who too had accompanied her to the Jungle on the fateful day to collect fodder and PW9 Dr. Sushma Dhar, Gynecologist, who had examined the Prosecutrix, besides Vakil Singh and Prem Parkash, Naib Tehsildar. Denying the charge, the appellant claimed to be tried. The prosecution examined Narayan Dass and Krishna Devi, the parents of the prosecutrix, the prosecutrix, Mst. Sudhan, who too had accompanied her to the Jungle on the fateful day to collect fodder and PW9 Dr. Sushma Dhar, Gynecologist, who had examined the Prosecutrix, besides Vakil Singh and Prem Parkash, Naib Tehsildar. The appellant remained satisfied with production of his sole defence witness, Mst. Kamlesh Devi, his real sister. Considering the prosecution evidence, the explanation of the appellant to the circumstances appearing in the prosecution evidence put to him under Section 342 of the Cr .P.C, and the statement of the defence witness, Mst. Kamlesh Devi, the trial court found the prosecution to have succeeded in proving that the appellant was guilty of committing rape on the prosecutrix. The appellant was accordingly convicted and sentenced, as described in the opening part of this judgment. APPELLANTS AND STATE COUNSELS SUBMISSIONS: 4. While assailing the judgment of the trial court, learned counsel for the appellant submits that the statement of the Prosecutrix was unworthy of credence and there was no corroborative evidence to support the prosecution case. Corroboration being a sine qua non in the present case, the prosecution case was required to be rejected, urges appellants counsel. It is submitted that there was a land dispute between the appellants father and the father of the Prosecutrix. The Prosecutrix was a lady of ill repute and was pregnant. The parents of the Prosecutrix wanted the appellant to marry her. Appellants refusal to marry the Prosecutrix had resulted in filing the FIR. Learned counsel, on the basis of aforesaid pleas, seeks setting aside of the impugned judgment. Supporting the judgment impugned in the appeal, learned State Counsel, on the other hand, says that the statement of the Prosecutrix was natural, which stood corroborated by sufficient evidence on records, including the one which had been led by the appellant in the case. He submits that the judgment of the trial Court does not warrant interference. DISCUSSION AND CONCLUSION: 5. I have considered the submissions of learned counsel for the parties and gone through the evidence on records. 6. The occurrence had taken place on 26th of March, 1993 at 1 noon. FIR no. He submits that the judgment of the trial Court does not warrant interference. DISCUSSION AND CONCLUSION: 5. I have considered the submissions of learned counsel for the parties and gone through the evidence on records. 6. The occurrence had taken place on 26th of March, 1993 at 1 noon. FIR no. 53/1993 was lodged on 27th of March, 1993 at 1 P.M at Police Station Reasi, which is located at a distance of one days journey from the village of the Prosecutrix . Dr. Sushma Dhar was approached by the investigating agency on 27th of March, 1993 to examine the Prosecutrix .The Prosecutrix was examined by Dr. Sushma Dhar at 2.30 P.M on 27th of March, 1993. Dr. Sushma Dhar noticed presence of bruises over the back of the Prosecutrix besides a bruise wound over her scalp. Her clothes were found to be torn and stained (whitish). Although no marks of violence over the private part of the Prosecutrix were noticed, yet her hymen was found torn, which would bleed on touch. According to the Doctor, there was evidence of rape on the Prosecutrix in the recent past. The statement of the prosecutrix, that she, had gone to Chilly Dhar on 26th of March, 1993 alongwith other women folk of her village, Sain Ranjan, stands proved with her statement as also the statement of Mst. Sudhan, another lady, who too had gone to the Jungle to get fodder on the day. The parents of the Prosecutrix too support the prosecution version and the statement of the Prosecutrix of her going to Jungle on 26th of March, 1993 and coming back in the evening to report that the appellant had committed rape on her. 7. Not only this, even the sole defence witness, DW Kamlesh Devi, the real sister of the appellant, too supports the prosecution version that the prosecutrix had gone to the Jungle on 26th of March, 1993 and returned therefrom in the evening. The fact of Prosecutrixs having gone, to the Jungle for getting fodder on 26th of March, 1993 thus stands clearly established. So far as the question of the Prosecutrix having been ravished by the appellant is concerned, there is categoric statement of the Prosecutrix saying specifically that she had been forcibly taken by the appellant towards Nallah where he had committed sexual intercourse with her against her will, despite her resistance. So far as the question of the Prosecutrix having been ravished by the appellant is concerned, there is categoric statement of the Prosecutrix saying specifically that she had been forcibly taken by the appellant towards Nallah where he had committed sexual intercourse with her against her will, despite her resistance. The statement of the Prosecutrix, though, not supported by any eye witness, stands corroborated by the statement of PW9, Dr. Sushma Dhar, who on the examination of the Prosecutrix had found bruises on her back besides noticing that her hymen was torn, which would bleed on touch. She had specifically stated that there was evidence of rape on the Prosecutrix in the recent past. The medical evidence, lends sufficient Corroboration to the statement of the Prosecutrix that she had been raped on the day of occurrence. Her torn clothes stained white and bruises on her Back clearly demonstrate of the resistance, which she must have put so as to resist the forcible sexual intercourse by the appellant. 8. That apart, the statements of the mother of the Prosecutrix and her father, to whom she had narrated about the occurrence in the evening of the day when the occurrence had taken place, too provide sufficient/corroborative support to the statement of the Prosecutrix and the case of the prosecution. 9. Another fact which needs to be noticed is that on the day of occurrence, when the father of the appellant was informed about the act of the appellant, the Prosecutrix, her father and other members of the family were beaten up by the appellant and his other family members. All these factors when taken together provide sufficient material on the basis whereof a Criminal Court would be justified in accepting the statement of the prosucutrix. 10. Learned counsel for the appellant, while referring to some sentences from the statement of the Prosecutrix, that the rape had been stated by the Prosecutrix to have been witnessed by other ladies who had gone to the Jungle but nobody had come to her rescue and were enjoying it, submitted that in the absence of evidence of those ladies it may not be safe to accept the statement of the Prosecutrix, in the absence of requisite corroboration. 11. 11. It is correct that the Prosecutrix had made such statement but this part of the statement of the Prosecutrix, would not, in my opinion, destroy the affect of the positive statement of the Prosecutrix of her having been ravished by the appellant against her will. Experience shows that while under cross-examination by a professional, a witness, particularly illiterate and that too from remote areas; do fall in trap in making exaggerated versions. There are host of reasons for introduction of these exaggerative versions in the statements of the witnesses. These introductions may well be avoided if the Presiding Officers are cautious enough in discharging their duty ensuring that while making the statements, the witnesses were kept comfortable and given free atmosphere to depose without being carried away by uncontrolled cross-examination by the defence. That apart, these exaggerative versions in the statements of witnesses are, at times, made by the witnesses with a view to impress upon the Court to appreciate the wrong done to them. 12. Without going into these aspects of the matter, suffice it would be to say that the statement of the Prosecutrix that she was forcibly sexually assaulted against her will by the appellant, gets sufficient support from the medical evidence, statement of Mst, Sudhan and the statement of her parents. The learned trial Court has rightly ignored the part of the statement of the Prosecutrix referred to by learned counsel for the appellant from consideration and there are good reasons given by the trial Court to believe the main statement of the Prosecutrix, which remained unchallenged during the cross-examination. 13. I do not find any substance in the submission of learned counsel for the appellant that the Prosecutrix was pregnant and her parents wanted him to marry her And it was because of appellants refusal to marry the Prosecutrix, because she was unchaste, that the FIR had been lodged against him. This is so because neither is there any suggestion by the defence to any of the prosecution witnesses regarding all these factors nor any question had been put to the medical witness so as to prove that the Prosecutrix was pregnant at the tine of her medical examination. There is no evidence indicating that the Prosecutrix was unchaste. The defence witness, Mst. There is no evidence indicating that the Prosecutrix was unchaste. The defence witness, Mst. Kamlesh Devi, the real sister of the appellant, had gone to the extent of saying that the parents of the appellant had agreed to marry the Prosecutrix with the appellant but it was the Prosecutrixs father who would not agree for such marriage and had insisted for filing of case against the appellant. The statement of the defence witness goes a long way in proving that the pleas put forward by the appellant were untenable. Mere stoppage of menstruation for some months would not mean that lady was pregnant The plea of pregnancy appears to have been coined by the appellant only after noticing that the Doctor had mentioned in the medical certificate that the Prosecutrix did not have menstruation for the last five months. In the absence of any evidence on records that the prosecutrix was pregnant and the parents of the prosecutrix wanted to marry her to the appellant, I am not inclined to accept the submission of learned counsel for the appellant in this respect. 14. The trial Court has considered the evidence of the prosecutrix and dealt with the criticism made against her statement, which criticism was reiterated by the learned counsel for the appellant in this Court as well. Learned trial Court has dealt with it in detail and I have no reasons to take a view contrary to the one taken by the trial Court. I do not find any merit in the submission of learned counsel for the appellant that as no injury was found on the private part of the prosecutrix so her statement that the sexual intercourse was against her consent was not believable. It was held in Santosh Kumar vs. State of M.P, 2006 Cr.L.J, 4594 by Honble Supreme Court of India, that absence of injury on the private part of the prosecutrixs body was no ground to hold that no rape had been committed on her. Plea of learned counsel for the appellant that in the absence of any corroboration to the statement of the prosecutrix, her statement was not believable, needs to be noticed only for its rejection for the law is well settled that conviction for rape can be founded on the testimony of the prosecutrix alone unless there were compelling reasons for seeking corroboration. The evidence of the prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons, which may necessitate looking for corroboration of her statement. The Courts \ should not find any difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and was found to be reliable. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not the requirement of law but a guidance of prudence under given circumstances. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. 15. The above view was taken by Honble Supreme Court of India in State of Himachal Pradesh vs. Asha Ram, AIR 2006 SC 381. To the same effect are several judgments of Honble Supreme Court of India, which say that, the statement of the prosecutrix, if believable, may not require any corroboration for its acceptance. I have not found any significant discrepancy in the statement of the prosecutrix and would not take into consideration minor contradictions in her statement, which are bound to be there in the statement of a truthful witness, recorded much after the occurrence, to disbelieve the prosecutrix. 16. Learned Additional Sessions Judge, Reasi, has, in my view, properly appreciated the evidence on the records and his finding that the appellant had sexually assaulted the prosecutrix against her will and that he was guilty of offence punishable under Section 376 R.P.C, would not require any interference. 17. Judgment of conviction and order of sentence made by the learned Additional Sessions Judge, Reasi, against the appellant is, accordingly up held and appeal dismissed. Order dated 5.2.2002, admitting the appellant to bail, is recalled. The appellant shall surrender to custody forthwith to serve the Remaining sentence.