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2008 DIGILAW 545 (PNJ)

Ram Niwas Alias Niwasa v. State Of Haryana

2008-02-27

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction and the Order of sentence dated 21-09-1995, rendered by the Court of Additional Sessions Judge (II), Jind, vide which it convicted the accused/appellant, for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years, and to pay a fine of Rs. 200/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of one month. The accused was, however, acquitted of the charge for the offences under Sections 323 and 506 I.P.C. 2. The facts, in brief, are that, Jai Parkash, a resident of village Baroda, was a contractor. He had taken 2 1/2 acres of agricultural land, on lease, from Bhira alias Telu, out of his field known as `Durwala field in the year 1994. On 12-08-1994, he was away to Narwana, in connection with his contract work. His wife, the prosecutrix (the name is not being mentioned) went to the fields to watch the crop and to bring grass for cattle. At that time, the crops of cotton and Jawar were sown in the said field. The prosecutrix was busy in her agricultural work, in her field. At about 11.30 a.m., Ram Niwas accused, son of Inder, whose field was also situated adjoining the field of Jai Parkash, came to her. He enquired from her, as to whether, she had come all alone. Ram Niwas caught hold her, in his arms, from her back side, and asked her to have sexual intercourse with him. The prosecutrix abused her and raised cries for her defence. The accused, however, shut her mouth and made her lie on the ground and, then, committed sexual intercourse with her, without her consent, and against her will. On hearing her cries, Kali Ram, son of pat Ram, who was grazing his cattle in the nearby fields, came at the spot. On seeing him coming to the place of occurrence, Ram Niwas, accused, left the prosecutrix, in the naked condition and ran away. In the meantime, Balwan, son of Bhal Singh and Raja, son of Telu also came there. Accompanied by Kali Ram, Raja and Balwan, the prosecutrix came to her house, in torn clothes. In the evening, Jai Parkash, the husband of the prosecutrix came back from Narwana. The prosecutrix narrated the occurrence to him. In the meantime, Balwan, son of Bhal Singh and Raja, son of Telu also came there. Accompanied by Kali Ram, Raja and Balwan, the prosecutrix came to her house, in torn clothes. In the evening, Jai Parkash, the husband of the prosecutrix came back from Narwana. The prosecutrix narrated the occurrence to him. He, then, accompanied by the prosecutrix went to the Police Station and lodged the report. The prosecutrix, was then taken to Primary Health Centre, Uchana, for medical examination, but the doctor at Uchana, was not available. Therefore, she was brought to General Hospital, Jind. After her medical examination, the kurta, salwar, underwear, dupatta and vaginal swabs of the prosecutrix were taken in custody vide memo Exhibit PO. The broken pieces of the bangles of the prosecutrix, from the place of occurrence, were also taken into possession vide memo Exhibit PH. Site plan Exhibit PP was prepared by the Investigating Officer. The accused was arrested. His medical examination was got conducted. Medical report Exhibit PM was obtained. After the completion of investigation, and receipt of report from the Director, Forensic Science Laboratory, Madhuban, the accused was challaned. 3. On his appearance before the Court of Sessions, charge under Sections 376, 323 and 506 of Indian Penal Code, was framed against the accused, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of his case, examined Randhir Singh, son of Telu Ram (PW-1), Patwari Panjab Singh (PW-2), Mohinder Singh (PW-3), Ranbir Singh (PW-4), Ram Chander (PW-5), Bhikhu (PW-6), Balwan Singh (PW-7), Raja (PW-8), Jai Parkash, husband of the prosecutrix (PW-9), Dr. Mrs. Abha Kulshreshta, General Hospital, Jind (PW-10), the prosecutrix (PW-11), Kali Ram (PW-12), Dr. S.S. Saroha (PW-13), Lal Singh, A.S.I. (PW-14) and Subhash Chander, Sub Inspector, Investigating Officer (PW-15). The Additional Public Prosecutor closed the prosecution evidence, after tendering into evidence the report of the Forensic Science Laboratory. 5. The statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded false implication. He, however, produced no evidence in defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. It is settled principle of Criminal jurisprudence, that the prosecution, is required to prove its case, against the accused, beyond a reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. However, the reasonable doubt, should not be stretched too far, to pick holes, in the prosecution story, so as to disbelieve and distrust the same, just on minor and inconsequential discrepancies, and unwarranted basis. In Gurbachan Singh v. Sat Pal, the principle of law, laid down, was to the effect, that reasonable doubt, is simply that degree of doubt, which could permit a reasonable and just man to come to a conclusion. Reasonableness of doubt, must be commensurate with the nature of offence, to be investigated. Exaggerated devotion to the rule of benefit of doubt, must not nurture fanciful doubts, and lingering suspicions, and thereby destroy social defence. Justice cannot be made sterile, on the plea, that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape, is not doing justice, according to law. In State of Uttar Pradesh v. Anil Singh, the principle of law, laid down, was to the effect, that it is necessary to remember that a judge does not preside over a criminal trial, merely to see, that no innocent man is punished. A Judge also presides to see that guilty man does not escape. One is as important, as the other. Both are public duties, which the Judge has to perform. 10. Before touching the merits of the case, in the light of the evidence, on record, in the first instance, it must be stated here, as to what approach, the Court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related offence. Both are public duties, which the Judge has to perform. 10. Before touching the merits of the case, in the light of the evidence, on record, in the first instance, it must be stated here, as to what approach, the Court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related offence. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars, before the Court bases a conviction on her testimony? Does the rule of prudence demand that in all cases, save the rarest of rare, the Court should look for corroboration, before acting on the evidence of the prosecution? Let us see, if the Evidence Act, provides the clue to this riddle. Under the Evidence Act, evidence means and includes all statements which the Court permits or requires to be made before it, by the witnesses, in relation to the matters of fact, under inquiry. Under Section 59 of the Evidence Act, all facts, except the contents of documents, may be proved by oral evidence. Section 118 then illustrates, as to who may give oral evidence. According to that Section, all persons are competent to testify, unless the Court considers that they are prevented from understanding the questions, put to them, or from giving rational answers, to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even, in the case of an accomplice, Section 133 provides that he/she shall be a competent witness, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated, in material particulars. Thus, under Section 133, which lays down a rule of law, an accomplice is a competent witness, and the conviction based solely on his uncorroborated evidence, is not illegal, although in view of Section 114 illustration (b) the Courts do not, as a matter of practice, do so, and look for corroboration, in material particulars. This is the co-joint effect of Sections 133 and 114 illustration (b). 11. This is the co-joint effect of Sections 133 and 114 illustration (b). 11. In the light of the principle of law, laid down, in the aforesaid authorities, by the Apex Court, it is to be determined, as to whether, the prosecution was able to prove its case, beyond a reasonable doubt. To determine this question, brief narration of the evidence, is required to be made. The prosecutrix, while appearing as PW 11, deposed that on 12-08-1994, at about 10.30 a.m., when she went to her fields, known as `Durwala field, in the area of Baroda, for fetching grass and collect fire woods in the field. Ram Niwas, son of Inder, accused came there, from his own field. According to the prosecutrix, the field of Ram Niwas adjoins her field. The accused enquired of the prosecutrix, as to whether, she had come all alone. When she replied that she had come alone, he missed no opportunity to catch hold of her from back side. When she tried to free herself, while abusing him, he threatened her with dire consequences in case she raised the noise. Thereafter, he laid her on the ground and sat on her. He tore her dress. He removed her salwar and underwear. The accused also removed his own trouser. Thereafter, he tied the mouth of the prosecutrix, with her dupatta, so that she may not be able to raise noise, and after giving fist blows to her, committed sexual intercourse, with her. Thereafter, she removed dupatta, from her mouth, when she raised alarm which attracted Kali Ram. Thereafter, the accused ran away from the spot. The prosecutrix narrated the entire occurrence to Kali Ram. Kali Ram (PW-12) stated that on 12-08-1994, when he was grazing his cattle, in the field of Jagdish, son of Dariya, he heard the cries of a lady, in the nearby field. She was crying for help. He replied that he was coming for her help. He then went to that place, from where the cries were coming. He saw the prosecutrix, when she was naked and asked her to put on her clothes. He further stated that on his interrogation, she replied that she was the wife of Jai Parkash son of Jai Narain pandit, and, thereafter, she narrated the fact that she was raped by Ram Niwas son of Inder. He saw the prosecutrix, when she was naked and asked her to put on her clothes. He further stated that on his interrogation, she replied that she was the wife of Jai Parkash son of Jai Narain pandit, and, thereafter, she narrated the fact that she was raped by Ram Niwas son of Inder. The prosecutrix also narrated the occurrence to her husband, when he returned from outside. Her husband, PW-9, Jai Parkash corroborated her statement. Dr. Mrs. Abha Kulshreshta, Medical Officer, General Hospital, Jind, medico-legally examined the prosecutrix, aged about 35 years. She stated that no marks of violence were found, on her body. She took into possession the salwar, kamiz, dupatta and underwear of the prosecutrix and converted the same into parcel. She took the vaginal swabs and shaved pubic hairs of the prosecutrix. Those were also converted into parcels. Further corroboration to the statement of the prosecutrix was provided through exhibit PS, report of the Forensic Science Laboratory. According to this report, the human semen and blood were detected on Salwar and underwear of the prosecutrix. The blood was also detected on the shirt and dupatta of the prosecutrix. Human semen was also detected on the vaginal swabs of the prosecutrix. Semen was also found on the underwear (kachha). There was no reason, on the part of the prosecutrix, to depose falsely. No lady generally would level such allegations of rape, committed against her, until and unless, such an occurrence had taken place. The prosecutrix, being a married lady, could not stake her honour, by levelling false allegation,against the accused, as she very well knew that she will be looked down upon in the society and her matrimonial life shall be spoiled, if such allegations, were found to be false. On re-appraisal of the evidence produced by the prosecution and referred to above, the same has been found to be cogent, convincing and trustworthy. The trial Court, relying upon the said evidence rightly came to the conclusion, that the rape was committed with the prosecutrix, by the accused/appellant. The finding recorded by the trial Court, in this regard, being in consonance with the evidence, produced by the prosecution, does not deserve any interference. 12. The trial Court, relying upon the said evidence rightly came to the conclusion, that the rape was committed with the prosecutrix, by the accused/appellant. The finding recorded by the trial Court, in this regard, being in consonance with the evidence, produced by the prosecution, does not deserve any interference. 12. Learned Counsel for the appellant, contended that had rape been committed with the prosecutrix without her consent, she would have certainly raised cries and resisted, as a result whereof, marks of violence would have certainly been found on her body. He further contended that, in the absence of existence of marks of violence, or injuries on the body of the prosecutrix, it could be said that no rape was committed with her. The submission of the learned Counsel does not appear to be correct. The prosecutrix, in her statement, in clear-cut terms stated that the accused laid her on the ground forcibly, kept his knee on her breast, and shut her mouth, with a dupatta. Thereafter, he tore her clothes, and committed sexual intercourse with her. The accused, being a strong person, and the prosecutrix, being a weak and meek lady, was unable to resist, especially when the accused had kept his knee on the breast and gagged her mouth with her scarf. Under these circumstances, the question of resistance by her, did not all arise. She could also not raise cries, when the rape was committed with her, as her mouth was gagged with her scarf. Immediately, after the commission of rape, she removed the scarf from her mouth and raised alarm, which attracted Kali Ram to whom she narrated the occurrence. Under these circumstances, non appearance of the marks of violence, on the body of the prosecutrix, and non existence of injuries, on her body, did not prove that the rape was not committed with her. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected. 13. It was next contended by learned Counsel for the appellant, that there was a delay, in lodging the F.I.R. He further submitted that the alleged occurrence took place on 12-08-1994, at about 11.30 a.m., whereas, the F.I.R., was lodged on 12-08-1994 at about 7.30 p.m. He, further contended that a period of 81/2 years was utilized by the prosecutrix and her husband, to falsely implicate the accused and concoct a story. The submission of learned Counsel, in this regard, does not appear to be correct. The prosecutrix, in clear cut terms, stated that her husband had gone outside, in connection with the contract work and, was not present, in the village, at the time of occurrence. As soon as, he came back in the evening to his house, the prosecutrix narrated the entire story to him, and, thereafter, she accompanied by her husband, went to the Police Station and lodged the F.I.R. In the present case, the husband of the prosecutrix, must have thought a number of times, before lodging the F.I.R., as the question of honour of the family was involved. Under these circumstances, even if, some delay occurred, in lodging the report, that hardly mattered, as the same stood explained, from the evidence, referred to above. Not only this, in State of Punjab v. Gurmit Singh 1996(1) RCR 533(SC) the parents of the victim of rape, reported the matter, in the first instance, to the village Panchayat, and when the Panchayat failed to provide any relief, the FIR was lodged thereafter. In these circumstances, the Honble Supreme Court, held that the delay stood properly explained. It was further held that in sexual offences, the delay in lodging the FIR, could be due to a variety of reasons, particularly the reluctance of the prosecutrix, or family members to approach the police, and lodge complaint, about the incident, which concerns the reputation and honour of the family and victim. In State of Punjab v. Ramadev Singh 2004(1) Crimes 149 (SC), rape was committed with a girl of 14 years. There was delay of 17 days, in lodging the report. The father of the prosecutrix, was seriously ill, and the family members did not want to create tension, in his mind, and waited for his recovery. In these circumstances, such explanation was accepted as correct, and the Apex Court held that the delay stood explained. Since the delay stood explained, and the evidence of the prosecution, has been found to be cogent, convincing and trustworthy, the submission of the Counsel for the appellant-accused, being without merit, must fail, and the same stands rejected. 14. It was next contended by the Counsel for the appellant, that the prosecutrix, in her statement, stated that, she did not know the accused earlier, nor she had seen him before the date of occurrence. 14. It was next contended by the Counsel for the appellant, that the prosecutrix, in her statement, stated that, she did not know the accused earlier, nor she had seen him before the date of occurrence. He further submitted that under these circumstances, the identity of the accused, as the perpetrator of crime, was not established, by the prosecution, beyond a reasonable doubt. The submission of the learned Counsel does not appear to be correct. The occurrence took place at about 11.30 a.m., in the broad day light. Even if, the accused had not been seen by the prosecutrix earlier, she could very well identify him, as it took sufficient time for the accused, to catch hold the prosecutrix, lay her on the ground, tear her clothes and then commit sexual intercourse, with her, without her consent and against her will. How the prosecutrix could forget the identity of the person, who had violated her person. It was not that the prosecutrix had only a glimpse of the accused or that, the occurrence took place, in the dark night, and, thus, she was unable to identify him. Since, she had sufficient time to identify the accused, it could not be said that the identity of the accused was not proved beyond a reasonable doubt. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 21-09-1995, are upheld. The bail bonds, of the appellant, are cancelled. The Chief Judicial Magistrate, Jind, is directed to take necessary steps, in accordance with the provisions of law, to comply with the judgment of this Court, immediately.