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2009 DIGILAW 353 (JK)

Tsering Angchuk v. State Of J. &K.

2009-07-23

VIRENDER SINGH

body2009
1. After having been convicted under sections 376/451 RPC, the appellant (for short to be referred to as `accused) has preferred the instant appeal against the judgment of learned Sessions Judge, Leh-Ladakh dated 23-03-2004. He has been sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.5,000/- under section 376 R.P.C, in default thereof to further under go rigorous imprisonment for one year and under section 451 R.P.C, the sentence awarded is rigorous imprisonment for a period of one year and fine of Rs.1,000/-. In default of payment of fine, to further undergo rigorous imprisonment for two months. However, both the sentences have been ordered to run concurrently. 2. The prosecutrix (name not being disclosed) in this case is the wife of Tundup Dorjay. He is the complainant also. The date of incident is of 29-03-2002 at about 11 A.M in the house of the complainant falling within the jurisdiction of Police Station Leh. The written report Expw-1 was lodged on 30-03-2002 at about 6 P.M. on the basis of which formal FIR No.30/2002 was registered in the concerned Police Station and it reached the Illaqa Magistrate (Chief Judicial Magistrate) on 1-4-2002 at about 10.15 A.M. 3. During the course of investigation, the prosecutrix was examined by Dr. Nurjan Angmoo, ASM Hospital, Leh who found the following injuries on her person:- "1. Bruise seen on left Iliac fossa posterierly. 2. Small abrasion on both knees" 4. On gynecological examination of the prosecutrix, the lady doctor found no external or internal injuries in her vagina. She also noticed copper-T thread in it. Vagina swab was also taken and sent to the Laboratory for detecting the sperms, but as per the laboratory report, no spermatozoa was noticed. Since there was no clinical evidence of with regard to any sexual intercourse or even penetration, therefore, the opinion given by the doctor was that there was no evidence of sexual intercourse. Her report was exhibited as Expw-15. She made it clear that it was less likely that the lady had sexual intercourse prior to the examination. In a specific query put to her by the Police during the investigation the lady Doctor made it more clear that it was less likely that the lady had sexual intercourse prior to the examination. Her report was exhibited as Expw-15. She made it clear that it was less likely that the lady had sexual intercourse prior to the examination. In a specific query put to her by the Police during the investigation the lady Doctor made it more clear that it was less likely that the lady had sexual intercourse prior to the examination. In a specific query put to her by the Police during the investigation the lady doctor made it more clear that even if the vagina is washed, still intercourse can be detected. Accused was also got medically examined and found to be fit to perform sexual intercourse. 5. The prosecution has examined as many as 16 witnesses, but I do not feel the necessity of discussing the evidence of all of them. 6. Tundip Dorjay, the husband complainant has deposed that on 29-03-2002 while he was posted at Khalsi, his brother came to him and told that his wife was raped by the accused. He immediately came home after taking the leave and on reaching there, his wife (the prosecutrix) told him that she had come down from the first floor of her house to fetch water when the accused caught hold of her and took her to cattle shed where she was beaten by him and also forcibly raped her. She had also sustained injuries on her knee and ankle. He further deposed that then he had sent his brother to bring Lamberdar who came on the spot and thereafter a `baradari was called in which the accused was also summoned who did not accept his fault. He then took his wife to the Hospital where she was immediately examined. The police was called by the Hospital authorities and he lodged a written complaint (Expw-1) with the Police. He also talks of seizure of the wearing apparels of his wife vide EXPW-2 bearing his signatures. 7. PW sewang Dolma stays in the neighbourhood of the prosecutrix. She stated that the prosecutrix told her that the accused had caught hold of her and did wrong with her. She then states that many other persons had gathered there. 8. PW Punchuk Dolma who also stays in the neighborhood has toed the line of the aforesaid Tsewang Dolma. 9. PW sewang Dolma stays in the neighbourhood of the prosecutrix. She stated that the prosecutrix told her that the accused had caught hold of her and did wrong with her. She then states that many other persons had gathered there. 8. PW Punchuk Dolma who also stays in the neighborhood has toed the line of the aforesaid Tsewang Dolma. 9. The prosecutrix when stepped in to the witness box stated that when she had come down on the ground floor she was caught hold by the accused from the back and dragged to the room for tethering the animals. The accused had slapped her and made her to fall and thereafter he did bad act with her. She came out of the room and raised noise, when PW Sewang Dolma reached there and she was informed about the incident by her. Lamberdar of the Village was also informed of the incident and brother of her husband had gone to call him from the place of posting. She further stated that on the next day she along with her husband had gone to the Doctor for medical examination where police had come and recorded her statement. The clothes which she was wearing at the time of occurrence were also taken by the police. 10. Tundup Gumbo PW was the Lamberdar of the Village at the time of occurrence. He stated that he had gone to the house of the prosecutrix on asking of her brother-in-law (Devar). The prosecutrix was enquired about the incident and she disclosed to him that the accused had beaten her. He further stated that he had noticed certain injuries on the person of the prosecutrix. He also enquired from the accused about the occurrence but he denied the same. He then stated that since the accused had not begged pardon, he was taken before the President of the Women Society. This witness has categorically stated that the prosecutrix had told him only the factum of causing injuries to her and nothing beyond that. In vernacular, it is stated that `SIRF ITANA KAHA KE MULZEM NE US KI MAR PIT KI HAI AUR KHUSH NA KHAH . 11. Gynecological examination with regard to the prosecutrix conducted by PW lady Dr. Nurjan Angmoo has already been depicted in the proceeding paras. The investigation conducted by the Investigation Officer does not call for any detailed discussion. 12. 11. Gynecological examination with regard to the prosecutrix conducted by PW lady Dr. Nurjan Angmoo has already been depicted in the proceeding paras. The investigation conducted by the Investigation Officer does not call for any detailed discussion. 12. This is the main evidence on which the prosecution is relying heavily. 13. The case set up by the accused as reflected in his statement under section 342 Cr. P.C is of a false implication on account of previous enmity. In defence, he has produced four witnesses. The enmity projected is that the husband of the prosecutrix had divorced the sister of the accused. 14. I have heard Mr. P. N.Raina, Advocate appearing for the appellant and Mr. P.C. Sharma, learned A.A.G representing the respondent/State. The evidence on file and other relevant documents have also been perused by me from the trial Court record. 15. Mr. Raina submits that it is a case of delayed FIR and it appears from the entirety of the facts and circumstances that the accused has been falsely implicated in the present case. According to the learned counsel there is a cutting/over writing in the original FIR with regard to the time of registration of the FIR as it does not synchronizes with the time of medical examination of the prosecutrix conducted by the lady doctor. According to him, if this all is seen minutely, it creates a lot of doubts about the exact timing of the lodging of the report with the Police and, therefore, it can be comfortably inferred that the husband of the prosecutrix has coined up a story of his choice so as to settled score with the accused with certain ulterior motives. 16. Mr. Raina then submits that even, otherwise, the very case set up by the prosecution of alleged rape miserably falls on the ground in the light of the medical evidence which is absolutely contrary to the statement made by the prosecutrix or even the allegations as contained in the FIR. The learned counsel submits that the lady doctor has categorically ruled out the possibility of rape in the present case. Even the ultra sound report has shown the normal study and, therefore, no injury on any vital organ. There was also no clinical evidence of any sexual intercourse or even penetration in the present case. The learned counsel submits that the lady doctor has categorically ruled out the possibility of rape in the present case. Even the ultra sound report has shown the normal study and, therefore, no injury on any vital organ. There was also no clinical evidence of any sexual intercourse or even penetration in the present case. Therefore, the prosecution is unable to prove the main charge of 376 R.P.C against the accused and infact, the entire case as set up by the complainant is shrouded under the clouds of doubt and it appears that the prosecutrix has been made a tool by her husband to project the occurrence in the manner he wanted. This even demolishes the charge of section 451 R.P.C also. 17. Mr. Raina then submits that may be the prosecution, in the light of the aforesaid weakness, asks for diluting the main offence of section 376 R.P.C to a lesser offence of section 354 R.P.C, which is otherwise also legally permissible, even for that purpose, the evidence on record is untrustworthy. According to the learned counsel, the injuries on the person of the prosecutrix are just insignificant injuries and cannot lend any support to her case for attracting section 354 R.P.C. 18. Mr. Raina, otherwise, submits that ultimately if this Court is of the view that the present case falls within the mischief of section 354 R.P.C (although not admitted), the appellant deserves a concessional tilt with regard to the quantum of sentence as the accused remained on bail through out during the trial itself and even after his conviction as his substantive sentence was suspended during the pendency of the appeal. Therefore, sending him to jail now after the lapse of more than seven years would not solve any purpose and it may also have adverse effect upon his entire family. 19. On the basis of the aforesaid submissions, Mr. Raina firstly prays for the acquittal of the accused of all the charges or in the alternative, a concessional tilt in the quantum of sentence. 20. Refuting the submissions advanced by Mr. Raina, Mr. Sharma, learned AAG submits that the conviction can be based on the solitary statement of the prosecutrix only, if it is trustworthy and in the present case there appears to be no reason to doubt her statement which is most natural. Mr. 20. Refuting the submissions advanced by Mr. Raina, Mr. Sharma, learned AAG submits that the conviction can be based on the solitary statement of the prosecutrix only, if it is trustworthy and in the present case there appears to be no reason to doubt her statement which is most natural. Mr. Sharma then submits that even if the medical evidence is not lending any support to the statement of the prosecutrix, that by itself is not a ground to reject her statement which is, otherwise, corroborated by the statements of other PWs staying in her neighborhood as they were immediately informed of the occurrence by the prosecutrix herself. Their evidence is not suffering from any infirmity. Therefore, the accused has no escape from both the charges. 21. According to Mr. Sharma, certain discrepancies in the statements of the prosecution witnesses are bound to occur with the lapse of time and, thus, cannot dent the basic substratum of the prosecution case. In the present case, there cannot be any mistaken identity as the accused and the complainant side is related to each other. It cannot be a case of false implication also and, therefore, even if some delay in lodging the FIR or some discrepancy with regard to the medical evidence or the time of recording of the First Information Report as pointed out by Mr. Raina has crept in, it would be just ignorable in the light of other convincing evidence on record. 22. Mr. Sharma then submits that if this Court ultimately takes a view that the charge of section 376 R.P.C against the accused is not proved to the hilt on account of the weakness in the medical evidence, he (accused) cannot escape his liability from the charge of section 354 R.P.C at least. 23. After hearing the rival contentions of the parties and going through the record minutely, I am of the considered view that the case as set up by the prosecution with regard to the main charge of section 376 R.P.C is not proved to the hilt as the main ingredients of section 375 R.P.C are conspicuously missing in the present case. The medical evidence as discussed herein above is starring at the prosecution. 24. The medical evidence as discussed herein above is starring at the prosecution. 24. I am not giving any weightage to the arguments advanced by Mr.Raina with regard to delay of lodging of the report and the discrepancy pointed out with regard to the medical examination. Delay is natural in this case as the husband of the prosecutrix was posted out of the Village and was summoned by his real brother subsequently. Even, otherwise, delay in such type of cases is immaterial as one thinks hundred times before going to the police station to lodge the FIR as, it, not only puts the prestige of the prosecutrix at stake, but the image of the entire family is involved. This is well settled position by now on the basis of various pronouncements of the Honble Supreme Court, I am also conscious of the settled legal position that the conviction can be based on the solitary statement of the prosecutrix alone and it does not call for any corroboration, if it inspires confidence. But in the case on hand, in my considered view, so far as the charge of section 376 R.P.C is concerned, it is not proved to the hilt. The medical evidence on record is not lending any support to the statement of the prosecutrix. It rather demolishes the case of the prosecutrix so far as the allegations of rape is concerned. Without entering into the detailed discussion with regard to the medical evidence which is otherwise reproduced hereinabove, suffice it to say that the prosecution has not been able to bring home the charge of 376 R.P.C to the hilt against the accused. Therefore, he deserves acquittal for the said charge. 25. Although no argument has been advanced from either side with regard to an attempt to commit rape falling within the mischief of section 376 R.P.C read with section 511 R.P.C, yet I have felt the necessity of commenting upon this aspect also and in my view, the totality of the facts and circumstances, does not warrant the conviction of the accused even for this charge. 26. The next aspect which would now call for consideration of this Court is, whether the accused can be convicted for offence of section 354 R.P.C or not. To be fair to Mr. Raina, I do not agree with the submissions advanced by him on this aspect. 26. The next aspect which would now call for consideration of this Court is, whether the accused can be convicted for offence of section 354 R.P.C or not. To be fair to Mr. Raina, I do not agree with the submissions advanced by him on this aspect. No doubt, the prosecution has been disbelieved by me with regard to the main charge of section 376 R.P.C, that fact by itself would not be a ground to disbelieve the prosecution story in its entirety, if it is believable to an extent of bringing the present case within the mischief of section 354 R.P.C. Visualizing the entire case in its right perspective, it cannot be said that nothing has happened in this case or the accused had not made any attempt at all to touch the person of the prosecutrix. The case as set up is that after the occurrence, the Lamberdar of the Village was also called and he enquired about the occurrence from the prosecutrix. By that time, the husband of the prosecutrix had not reached the Village. Lambardar when stepped into the witness box has categorically stated that he enquired about the incident from the prosecutrix and she disclosed to him that the accused had beaten her. He further stated that he had noticed certain injuries on her person also. He, however does not say a word that the prosecutrix had disclosed to him that She was raped by the accused and this can also be considered as an additional factor for his acquittal for the main charge of 376 R.P.C. But the external injuries as noticed on the person of the prosecutrix by the lady doctor go to show that the accused had assaulted or used criminal force on her knowingly that by that act he was likely to outrage her modesty. Entering into the house of the prosecutrix in the absence of her husband also attributes intention of the accused to commit this mischief falling within the ambit of section 354 R.P.C. I do not find any reason to disbelieve the case of the prosecution to this extent at least. Therefore, in my considered view, he has no escape from this charge. Therefore, in my considered view, he has no escape from this charge. Thus, while acquitting the accused for the charge of section 376 R.P.C, I instead convict him under section 354 R.P.C. So far as conviction under section 451 R.P.C is concerned, perhaps it does not call for any discussion as once the story of the prosecution is believed by me for the purpose of convicting the accused under section 354 R.P.C, the conviction under section 451 deserves to be upheld. Ordered accordingly. 27. Let us now advert to quantum of sentence to be awarded to the accused. In my view, the ends of justice would be adequately met if he is sentenced to one year rigorous imprisonment only under section 354 R.P.C as is also awarded for his conviction recorded under section 451 R.P.C. However, the sentence of fine would be 10,000/-, in default thereof to further undergo rigorous imprisonment for four months. However, both the sentences viz. under section 354 R.P.C and 451 R.P.C shall run concurrently. The amount of fine of Rs. 10,000/-, if recovered, shall be disbursed to the prosecutrix. 28. As a sequel to the aforesaid discussion, the net result is that the appeal on hand is partly allowed, the conviction and sentence of the accused recorded under section 376 R.P.C is, hereby, set aside and he instead stands convicted and sentenced under section 354 R.P.C as indicated hereinabove while up-holding his conviction and sentence as already recorded under section 451 R.P.C. Since he is on bail as his substantive sentence was suspended by this Court during the pendency of the appeal, the bail bond furnished by him in this regard stands cancelled. Let effective steps be taken by all the quarters concerned for taking him into custody for serving remainder of his substantive sentence.