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Rajasthan High Court · body

2009 DIGILAW 1528 (RAJ)

Prabhu Lal v. State of Rajathan

2009-07-03

MAHESH BHAGWATI

body2009
Hon'ble BHAGWATI, J.—Prabhu Lal, the appellant herein, was put to trial before the Additional Sessions Judge, Jhalawar who vide impugned judgment dated 10th December, 1986 convicted him in the offence under Section 376 of IPC and sentenced him to rigorous imprisonment for 7 years and a fine of Rs. 250; in default of payment of fine to further suffer rigorous imprisonment for 6 months. 2. The prosecution case in brief is that:- The prosecutrix in the afternoon of 24th August, 1984 went to draw water on the well of Narayan Patel. It was rainy season and drizzling. It is alleged that when she was drawing water from the well, the accused-appellant suddenly appeared and stood behind her. He lifted her in his lap and took her in the crop of maize. When she screamed, the appellant gagged her mouth by his hand. Thereafter, he made her to lie straight on the ground, lifted her ghaghara, draw his penis from his dhoti he was wearing, put her both the legs on his shoulders and ravished her. It is alleged that when she raised a cry, he threatened to kill her. He left her only when he discharged semen. Thereafter, he fled from there. Having heard her screams, her sister-in-law Chanda Bai and one Nanda, working in a nearby field came there. She narrated the incident to them, thereafter, she came to her house. There, she narrated the entire incident to her husband. When they were going to lodge the report in the police station, the accused armed with farsi blocked there way and threatened to face the dire consequences, if they lodged the report against him with the police. Somehow, they managed to reach the police station Manohar Thana where the prosecutrix lodged the report, whereupon, the police registered FIR Ex. P/1 and commenced investigation. 3. The Investigation Officer recorded the statements of the witnesses under Section 161 of Cr.P.C., prepared the site plan Ex. P/5, arrested the accused Prabhu Lal vide memo Ex. P/6, got the prosecutrix medically examined and after usual investigation sent the accused-appellant for trial before the court. 4. The accused-appellant was indicated for the offence under Section 376 of IPC, who pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. P/6, got the prosecutrix medically examined and after usual investigation sent the accused-appellant for trial before the court. 4. The accused-appellant was indicated for the offence under Section 376 of IPC, who pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. On completion of trial, the learned trial Court convicted and sentenced the accused-appellant Prabhu Lal as indicated hereinabove. 5. Heard learned counsel for the accused-appellant, learned Public Prosecutor appearing for the State and with their assistance scanned the relevant material available on record. 6. The first argument advanced by the learned counsel for the appellant is that the occurrence of this case took place in the afternoon of 24.8.1984 and the report by the prosecutrix was lodged on 27.8.1984 at 6:00 p.m. The prosecution has not furnished any reasonable and satisfactory explanation in lodging the FIR Ex. P/1 after an inordinate delay of more than three days. This delay is fatal to the prosecution and merely on this count, the conviction of the accused appellant recorded by the learned trial Court deserves to be set aside. 7. Per contra, learned Public Prosecutor has contended that the testimony of the prosecutrix and her husband PW-2 Onkar Lal with regard to delay in lodging FIR was rightly believed by the learned trial Court. The appellant armed with farsi came to the house of the prosecutrix and threatened her and her husband to face the dire consequences, if they reported the case against him with the police. The prosecutrix and her husband furnished reasonable and satisfactory explanation of 3 days' delay in lodging the report and there is no reason to disbelieve the same. 8. Having gone through the statements of PW.1 Kanchan Bai and PW.2 Onkar Lal, it is noticed that they could not go to the police station Manohar Thana to report the incident for the reason that for 3 days the accused armed with farsi came to there house and threatened to face the dire consequences if they came out of there house. But when both these witnesses were subjected to cross-examination, it emerged that PW.2 Onkar lalwent to the field of his in-laws and took his father-in-law along with him to his village. Thereafter, he, his father-in-law and his wife, all three went to police and reported the matter. But when both these witnesses were subjected to cross-examination, it emerged that PW.2 Onkar lalwent to the field of his in-laws and took his father-in-law along with him to his village. Thereafter, he, his father-in-law and his wife, all three went to police and reported the matter. It also emerged in the cross-examination that the accused did not block his way when he was going to police station. If the husband Onkar Lal of the prosecutrix could go to fetch his father-in-law to his village, then the question arises as to what prevented him from going to police station soon after the occurrence. It has not came out in the statements that the accused kept on sitting continuously for three days before his house armed with farsi in his hand. On the contrary, the statement given by PW.2 Onkar lal in his cross-examination goes against him, as the accused told him not to falsely implicate him in the case. I find it relevant to reproduce the statement as under:- ^^eqfYte us dgk Fkk fd ;fn mldk >wBk uke fy[kokvksxs rks x.Mklh ls dkV nwaxkA** 9. This statement in itself suggests that the accused only warned the witnesses not to implicate him falsely. It has also emerged in the statement that there are three daily buse service from Aklera to Manohar Thana. The occurrence is found to have taken place in the afternoon on 24th August, 1984 but the prosecutrix lodged the FIR at 6:15 p.m. on 27th August, 1984 after an inordinate delay of more than three days of the occurrence. The statements of both PW-1 Kanchan Bai and PW-2 Onkar Lal in this regard do not inspire any confidence. The prosecution has utterly failed to furnish a reasonable and satisfactory explanation of an inordinate delay of three days in lodging the First Information Report Ex. P/1 with the police station Manohar Thana. 10. In Thulia Kali vs. State of Tamil Nadu, AIR 1973 SC 501 , the Hon'ble Apex Court has held: "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 11. In the above case, the occurrence was not reported for more than 20 hours. The delay was found to be fatal to the prosecution and to base conviction upon such evidence was held to be unsafe. But in the instant case, the report has been lodged in the police station after an inordinate delay of more than three days of the occurrence and the prosecution has miserably failed to furnish satisfactory and reasonable explanation of this delay which to my firm view, is found to be fatal to the prosecution. 12. The second thrust of argument advanced by the learned counsel for the appellant is that the statements of PW.1 Kanchan Bai, PW.2 Onkar Lal, PW.5 Chanda and PW.6 Nanda are laden with contradictions in material particulars. On the one hand PW.5 Chanda and PW.6 Nanda are said to be the eye witnesses of the incident, whereas, their appearance in the FIR Ex.P/1 has been shown on the spot after the rape was committed by the accused-appellant upon the prosecutrix. Learned counsel has also canvassed that the prosecutrix was of 20 years of age at the time of occurrence and it was not possible for the appellant to commit rape upon her. 13. The third argument of the learned counsel for the appellant is that the prosecutrix did not sustain any injury on her person during the rape, which evinces that either the prosecutrix was a consenting party or no rape was committed by the appellant on her. 13. The third argument of the learned counsel for the appellant is that the prosecutrix did not sustain any injury on her person during the rape, which evinces that either the prosecutrix was a consenting party or no rape was committed by the appellant on her. The medical evidence suggests that no rape was committed on Kanchan Bai. Since the learned trial Court miserably failed to take serious note of these facts and circumstances and further failed to appreciate them properly, the impugned judgment cannot be sustained. 14. Learned Public Prosecutor in contra, canvassed that the contradictions and discrepancies emerging in the statement of the above witnesses are of flippant nature, which are easily reconcilable. The statements are reliable and trustworthy and in view of such a situation, criminal appeal deserves to be dismissed. 15. Now, adverting to the statements of PW.1 Kanchan Bai, it is noticed that when the prosecutrix was drawing water from the well, the accused came there, lifted her in his lap and took her to the field where the crop of maize was standing. She deposed before the court that the accused untied his dhoti, lifted her ghaghari and thereafter, penetrated his penis into her vagina. She further stated that the accused committed sexual intercourse not with her consent but did it forcibly. PW.2 Onkar lal deposed that when his wife Kanchan Bai came back to house, her cloths were torn and she was screaming. While weeping, she narrated the incident and told that the accused `Prbhuda' had ravished her. 16. From the statements of PW.1 Kanchan Bai, PW.2 Onkar Lal, PW.5 Chanda and PW.6 Nanda, it emerges that Chanda who happens to be the sister-in-law of the prosecutrix went along with her on the well. The presence of PW-6 Nanda is also found to be in the neighbouring field at the time of occurrence. It is also found from her statements that the accused lifted the prosecutrix in his lap and took her in the crop of maize in the presence of Chanda. It has also emerged that when the prosecutrix was being taken by the accused, her sister-in-law PW.5 Chanda raised an alarm and then PW.6 Nanda appeared there. PW.6 Nanda stated that when he reached there, the accused fled after committing rape. PW.6 Nanda, as per his statement, saw the accused fleeing after committing rape. It has also emerged that when the prosecutrix was being taken by the accused, her sister-in-law PW.5 Chanda raised an alarm and then PW.6 Nanda appeared there. PW.6 Nanda stated that when he reached there, the accused fled after committing rape. PW.6 Nanda, as per his statement, saw the accused fleeing after committing rape. PW.5 Chanda saw the accused taking her Bhabhi in his lap to the crop of maize. All these circumstances are revealing a scene that the prosecutrix was being taken in their presence in the field and ravished also in their presence. But in the First Information Report, it is found nowhere, that the prosecutrix was accompanied by her sister-in-law to the well nor it emerged that the prosecutrix was taken by the accused in his lap in the presence of PW.5 Chanda and she raised an alarm on this incident. 17. When the prosecutrix was subjected to cross-examination she admitted that the accused got her husband arrested by the police in a case of theft of forest wood. Albeit, they all used to talk to each other but this animus was fuming in her heart. She also admitted that had the accused not disclosed the theft of forest wood committed by her husband to the police, the police would not have arrested him. She also admitted that albeit, she did not mention the fact of animus to the police but of course, kauldron of rancor was fuming in her mind and heart. 18. It is well settled in law that conviction of offence of rape can be based on the sole testimony of the prosecutrix if it is reliable, impeachable and there is no infirmity. It is also well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon the made basis of conviction unless corroborated in material particulars. Further, the rule about the admissibility of corroboration should be present in the mind of the Judge. It is also well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon the made basis of conviction unless corroborated in material particulars. Further, the rule about the admissibility of corroboration should be present in the mind of the Judge. In State of H.P. vs. Gian Chand (2001) 6 SCC 71 , on a review decisions of the Apex Court, it was held that a conviction for an offence of rape can be based on the sole testimony of the prosecutrix, corroborated by the medical evidence and other circumstances, such as, the report of chemical examination etc., if the same was found to be natural, trustworthy and worth being relied upon. The Hon'ble Apex Court held that:- "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. 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. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations..." 19. In Madan Gopal Kakkad vs. Naval Dubey; (1992) 3 SCC 204 the Hon'ble Apex Court held (vide para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the `probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 20. In the instant case, the age of the prosecutrix was around 20 years. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. The facts as narrated in the first information report do suggests that the appellant lifted the prosecutrix in his lap comfortably and took her to the field where the crop of maize was standing. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. The facts as narrated in the first information report do suggests that the appellant lifted the prosecutrix in his lap comfortably and took her to the field where the crop of maize was standing. She was made to lie straight on the ground. Thereafter, he lifted her ghaghara and took out his penis and forcibly penetrated in her vagina. It is categorically stated in the report that after penetrating his penis into her vagina, he was repeating the ups and downs. She further stated that the accused was squeezing her both the breasts with his both the hands. He lifted her both the legs and put them on his shoulders. He left her only when he discharged semen. It is very relevant to reproduce this portion of report as this report is found to have been given orally by the prosecutrix. Which is as under:- ^^eq>s ,d ne xksnh esa mBk dj eDdk ds [ksr esa ys x;k] eSa fpYykus yxh rks esjk eqag can dj fn;k vkSj eq>s tehu ij lh/kk ysVk fn;k] esjk ?kk?kjk Åpk djds izHkwyky us mlds fi'kkc djus dh bZanzh dks mldh /kksrh esa ls fudky dj esjs fi'kkc djus dh txg esa tcjnLrh ?kwlk fn;k vkSj tksj tksj ls fgyus yxk o mlus mlds nksuksa gkFkksa ls esjs ckscks dks idM fy;k o esjs nksuksa ix da/kks ij j[k fn;s] eSa fpYykus yxh rks eq>s ekjus dh /kedh nh] tc mldh bZnzh esa ls ikuh fudy x;k rc izHkwyky esjs mij ls mBdj eq>s NksM+ dj mlh eDdk ls Hkkx x;kA** 21. This statement tangibly suggests that the prosecutrix happily surrendered before the accused and she did not offer any resistance. Neither she is found to have struggled nor she is found to have shown any tough resistance whatsoever. On the contrary, the statement suggests that when the accused lifted her both the legs and put them on his shoulders, she did not object to it. Not even a shred of resistance is found to have been shown by the prosecutrix when the accused was committing sexual intercourse with her. The facts are self speaking and suggests that either the prosecutrix was a consenting party to the sexual intercourse or no incident of any rape occurred. Not even a shred of resistance is found to have been shown by the prosecutrix when the accused was committing sexual intercourse with her. The facts are self speaking and suggests that either the prosecutrix was a consenting party to the sexual intercourse or no incident of any rape occurred. This observation is based mainly on two grounds- (i) The prosecutrix stated before the court in her cross-examination that she was lifted by the accused and thereafter, she was dragged also to the field. That time, it was raining. The Investigating Officer deposed that when he visited site, he found the stems of crop in the field. In such a situation, had the prosecutrix been dragged by the accused-appellant, she would have undeniably and undisputedly sustained injuries on her back or on the parts of the body. (ii) On the date of occurrence, the prosecutrix was young lady of 20 years of age. Had she offered resistance and struggled and the accused forcibly wanted to commit rape upon her, she would have undeniably and undisputedly sustained injuries on her private parts, but no injury has been found anywhere on any part of the body of the prosecutrix. 22. During investigation, one petticoat of the prosecutrix is found to have been seized by the police and sent to FSL for chemical examination. Similarly, dhoti of the accused which he was wearing on the date of occurrence was also seized vide memo Ex.P.7. FSL report Ex. P/8 reveals that human semen was detected on petticoat and dhoti. But no semen was detected in viginal smear. It is very interesting to note that the occurrence of this case took place on 24th August, 1984 and the FIR was lodged after more than 3 days i.e. on 27th August, 1984. The prosecutix was also medically examined by the Doctor on 27th August, 1984, on the request of police. It is not known as to when the petticoat was seized. However, neither the petticoat nor dhoti nor vaginal smear are said to have been taken in possession by the police soon after the occurrence of rape. During these three days, the possibility of the husband having a coitus, with his wife Kanchan Bai cannot be ruled out. There is no evidence on record to suggest that the semen detected on petticoat, dhoti was the semen of the accused only. During these three days, the possibility of the husband having a coitus, with his wife Kanchan Bai cannot be ruled out. There is no evidence on record to suggest that the semen detected on petticoat, dhoti was the semen of the accused only. FSL report thus, cannot be read against the accused-appellant. 23. On an over all appreciation of the evidence of the prosecutrix and her conduct, I find it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm. On account of there being material contradictions and discrepancies in her statements and further on account of there being not a shred of evidence of showing any resistance or struggle, at the time of committing rape, if the contents of FIR Ex. P/1 and her deposition before the court is put on the touch stone of the settled principles of criminal jurisprudence with regard to the occurrence of rape, it can safely be inferred that the statements of prosecutrix are not at all reliable, trustworthy and worthy of credence. 24. It is no doubt true that in law conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, that is in a case where the evidence of the prosecutrix inspires confidence and goes to be natural and truthful. The evidence of the prosecutrix in this case, is not of such quality and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. It seems that the learned trial Court utterly failed to take note of these serious lapses emerging in the case. The impugned judgment of the lower Court is not found to be just and cogent nor it is based on sound reasoning. Rather, the impugned judgment appears to me to be perfunctory. The prosecution has utterly failed to fasten the guilt against the accused and I do not concur with the finding of conviction arrived at by the learned trial Court. The impugned judgment is not sustainable and the same deserves to be set aside. 25. For these reasons, the criminal appeal is allowed. The prosecution has utterly failed to fasten the guilt against the accused and I do not concur with the finding of conviction arrived at by the learned trial Court. The impugned judgment is not sustainable and the same deserves to be set aside. 25. For these reasons, the criminal appeal is allowed. The conviction of the appellant Prabhu Lal in the offence under Section 376 of IPC and sentence awarded to him are set aside. Instead he is acquitted of this charge. He need not surrender in the Court. His bail bonds stand discharged.