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2009 DIGILAW 771 (HP)

RAMJI DASS v. STATE OF H. P.

2009-09-07

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, Judge. This appeal has been directed against the judgment dated 15.1.2009 passed by learned Additional Sessions Judge, Solan in Sessions Trial No. 6-NL-/7 of 2008/06 convicting and sentencing the appellant under Section 376 IPC for a period of seven years and fine of Rs.25000/-. In default of payment of fine, the appellant shall undergo further imprisonment for one year. The amount of fine on realization shall be paid as compensation to victim. 2. The prosecution case in brief is that appellant was prosecuted for offence punishable under Section 376 IPC on the allegations that somewhere in the end of December 2005, he went to the house of PW 10 prosecutrix at about 2. p.m. situated in village Dungi Plate (Tikkar) and committed rape on her when she was alone in the house. The appellant after committing rape left the house of the victim and threatened her that in case she would reveal the incident to anyone he will kill her. The prosecutrix reported the matter to the police vide rapat No. 6 dated 7.1.2006 Ex. PW 3/A and on that basis an FIR Ex. PW 9/A was registered. The prosecutrix was got medically examined vide MLC Ex. PW 4/B. The appellant was also got medically examined vide MLC Ex. PW 5/B. The site plan Ex. PW 12/B was prepared. On completion of investigation, challan was presented against the appellant. He was charged for offence punishable under Section 376 IPC, the appellant pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses and placed on record some documents. The statement of appellant was recorded under Section 313 Cr.P.C. The appellant did not lead any evidence in defence. The learned Additional Sessions Judge convicted and sentenced the appellant, as noticed above, hence, the convict has come in appeal. 3. Heard and perused the record. The learned counsel for the appellant has submitted that learned Additional Sessions Judge has misconstrued and misinterpreted the evidence on record and erred in convicting and sentencing the appellant. The prosecution has miserably failed to prove the case against the appellant, who has denied the prosecution case, at the most from the evidence led by the prosecution, it can be inferred that sexual intercourse was consensual and thus appellant has committed no offence under Section 376 IPC. The prosecution has miserably failed to prove the case against the appellant, who has denied the prosecution case, at the most from the evidence led by the prosecution, it can be inferred that sexual intercourse was consensual and thus appellant has committed no offence under Section 376 IPC. The learned Assistant Advocate General has supported the impugned JUDGMENT and has submitted that learned Additional Sessions Judge after due appreciation of material on record has rightly recorded the findings that the appellant has committed offence under Section 376 IPC. 4. PW 1 Nirmal Singh husband of the prosecutrix has stated that he is driver by profession. He left his home in December 2005 and returned on 5.1.2006. He was informed by his wife that 1213 days back she was raped by the appellant, who had also threatened that he would kill the prosecutrix. The witness called his father-in-law. PW 2 Smt.Maya Devi has stated that she knew Jagdish, prosecutrix and her husband. Their house is at a distance of one and half kilometers from her house. She has stated that she knew the appellant who is resident of Baner, which is at a distance of two kilometers from the house of the victim. She had seen him visiting that place twice-thrice prior to the incident. She had seen the appellant earlier proceeding towards the house of the prosecutrix and he returned after two hours from there. In cross-examination, she has stated that the houses of Raju, Sita Ram etc. are adjoining to the house of prosecutrix. 5. PW 3 Jagdish has stated that prosecutrix is his daughter-in-law, who used to be all alone in the house when he used to go for work outside and his son on duty. The prosecutrix told her husband Nirmal that accused had committed rape on her. Thereafter Nirmal informed him and a report Ex. PW 3/A was made at Police Post, Joghon. In cross-examination he has stated that he was pressurized by Shyama to lodge first information report. PW 4 Dr.Paramprit Bawa examined the prosecutrix on 7.1.2006 and issued MLC Ex. PW 4/B and gave opinion that prosecutrix is used to having sexual intercourse. PW 5 Dr. S.S.Bawa on 8.1.2006 examined the appellant Ramji Dass and issued MLC Ex. PW 5/B. 6. The statements of PW 6 Constable Raman Kumar, PW 7 HC Rajinder Kumar and PW 8 Constable Ashok Kumar are formal in nature. PW 4/B and gave opinion that prosecutrix is used to having sexual intercourse. PW 5 Dr. S.S.Bawa on 8.1.2006 examined the appellant Ramji Dass and issued MLC Ex. PW 5/B. 6. The statements of PW 6 Constable Raman Kumar, PW 7 HC Rajinder Kumar and PW 8 Constable Ashok Kumar are formal in nature. PW 9 Inspector Som Dutt has stated that on receipt of rapat No. 6 Ex. PW 3/A, he recorded FIR Ex. PW 9/A. 7. PW 10 prosecutrix has stated that her husband is a driver and generally remains away from the house, her father-in-law also works outside and returns home by night. She remains alone in the house during the day time. On the relevant date, she was in her field, the accused told her that her father-in-law had come to home and she was asked to prepare the meal for him. Upon this, she went to her home, her father-in-law was not there. She entered into the kitchen, the accused caught hold her, her clothes were torn and accused committed rape on her. The accused threatened that in case she would reveal the incident to anyone, he will kill her. The accused after committing the rape left the place. On the next morning, she revealed the incident to her husband. On this her husband administered beatings to her and he called her parents on telephone, who reached by evening and she narrated the incident to her mother. Thereafter report Ex. PW 3/A was made to the police. 8. In cross-examination, she has stated that Ramji Dass is elder cousin of her husband. The appellant used to visit their house and she knows him. She has stated that in front of kitchen, there is a verandah and on the first floor there is a room. There are stairs from the verandah to the first floor. They had closed the door when the sexual act was committed. She had raised alarm when she was taken to first floor. The houses of Raju, Sita Ram and Sohan Lal are adjacent to her house. Kala Ram (husband of prosecutrix) kept on visiting home after rape and before lodging of the report. She was not interested in lodging the report against the appellant. 9. PW 11 Smt. Shyama Devi is the mother of the prosecutrix, she has stated that prosecutrix was married to Nirmal alias Kala. Kala Ram (husband of prosecutrix) kept on visiting home after rape and before lodging of the report. She was not interested in lodging the report against the appellant. 9. PW 11 Smt. Shyama Devi is the mother of the prosecutrix, she has stated that prosecutrix was married to Nirmal alias Kala. She visited the house of her daughter on 7th May who told the witness that Ramji Dass had come to her house and he took her inside the room and committed rape on her. She has stated that report Ex. PW 3/A was lodged at Police Post, Joghon. 10. PW 12 ASI Prithvi Singh has stated that he prepared the site plan Ex. PW 12/B and conducted the investigation. On completion of investigation the file was handed over to SHO Som Dutt, for preparing the final report. In cross-examination, he has stated that he cannot say that the houses of Raju, Sita Ram etc. are adjoining to the house of the prosecutrix. The appellant has denied the prosecution case in his statement , under Section 313 Cr.P.C. 11. Ex. PW 3/A is copy of rapat No. 6 dated 7.1.2006, which was recorded at the instance of prosecutrix. It has been stated in Ex. PW 3/A that about 15 days ago during day time at about 2 p.m. she was all alone in the house, Ramji Dass came to her house and took her forcibly in the room and laid her on the cot and committed rape on her. She raised alarm but her house being isolated, therefore, no-one responded to her alarm. Ramji Dass after committing rape threatened her not to disclose the incident to anyone otherwise he would kill her and her family. She out of fear did not disclose the incident to anyone. Today when her mother Shyama Devi came then she narrated the incident to her, who disclosed the incident to her father-in-law Jagdish. On the basis of rapat Ex. PW 3/A FIR was registered. In MLC Ex. PW 4/B of the prosecutrix the doctor has found no signs of struggle on the body of the prosecutrix including perineal region. In the opinion of the doctor, the prosecutrix is used to having sexual intercourse. In MLC Ex. PW 5/B of the appellant, the doctor has opined that there is nothing to suggest that he is impotent and fully capable of sexual intercourse. In the opinion of the doctor, the prosecutrix is used to having sexual intercourse. In MLC Ex. PW 5/B of the appellant, the doctor has opined that there is nothing to suggest that he is impotent and fully capable of sexual intercourse. 12.The learned counsel for the appellant has submitted that consensual intercourse can be inferred from the evidence on record despite the appellant having taken the plea of denial and for that purpose he has relied Pratap Misra and others vs. State of Orissa AIR 1977 SC 1307. He has submitted that no doubt conviction can be based on the sole testimony of the prosecutrix, but it depends upon the facts and circumstances of a case. He has contended that the present case does not fall in that category. In a case of present nature, there must be some evidence which lends assurance, if not corroboration, for recording a finding of guilt. It has been contended that as per prosecutrix she narrated the incident to her husband next day but there is enough evidence on record to show that matter was reported to the police first time after about 15 days of the alleged incident and no explanation has been given for delay in reporting the matter to the police. 13. The prosecutrix has materially improved her statement in the Court when she appeared as PW-10 against her statement Ex.PW-3/A made before the police. The prosecutrix as PW-10 has stated that she revealed the incident to her husband on the next morning. The incident was reported to the police vide rapat Ex.PW-3/A dated 7.1.2006. It is clear from Ex.PW-3/A that the incident took place about 15 days ago from the date when rapat Ex.PW-3/A was lodged before the police. When prosecutrix had narrated incident to her husband on the next morning then why the matter was not reported to the police for about two weeks that has not been explained. In Chamaru Ram vs. State of H.P. 2005 Cr.L.J. 1943 the incident came to the notice of father of the prosecutrix within two days and the report was not lodged to the police for 8 days. A learned Single Judge has come to the conclusion on those facts that the delay has not been explained. In Chamaru Ram vs. State of H.P. 2005 Cr.L.J. 1943 the incident came to the notice of father of the prosecutrix within two days and the report was not lodged to the police for 8 days. A learned Single Judge has come to the conclusion on those facts that the delay has not been explained. In the present case the prosecutrix has stated in the Court that her husband kept on visiting home after rape and before lodging of the report but despite that the report was not lodged to the police for about two weeks. This creates suspicion in the case. 14.The statement of prosecutrix does not inspire confidence. There is no corroboration to the statement of prosecutrix, evidence of assurance to support the prosecution case is also missing in the present case. In Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. and another 2003 Cr. L.J. 910 the Supreme Court has held that it is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in that case was not found to be of such quality, and there was no other evidence on record, which may even lend some assurance, short of corroboration that she was making a truthful statement. The Supreme Court upheld the finding of the High court in an appeal against acquittal. 15. The prosecutrix has stated in the court that the accused is elder cousin of her husband, he used to visit their house and she knows him. According to the prosecutrix she was raped in the room upstairs. She has also stated that when the sexual act was committed the door was closed. She raised alarm but no one responded. The prosecutrix has stated that houses of Raju, Sita and Sohan Lal were adjacent to her house and this fact has been corroborated by PW-2 Maya Devi. PW-12 ASI Prithvi Singh has stated that he cannot say that the houses of Raju, Sita and Sohan Lal are adjoining to the house of the prosecutrix. In case the petitioner has raised alarm why no one responded, this has not been explained by the prosecution. The prosecution has not examined Raju, Sita and Sohan Lal. PW-12 ASI Prithvi Singh has stated that he cannot say that the houses of Raju, Sita and Sohan Lal are adjoining to the house of the prosecutrix. In case the petitioner has raised alarm why no one responded, this has not been explained by the prosecution. The prosecution has not examined Raju, Sita and Sohan Lal. PW-2 Maya Devi has stated that accused had proceeded towards the house of the prosecutrix and returned after two hours, what accused was doing for two hours at that place that has also not been explained. The incident took place around 2 during the day. The prosecutrix was alone in the house, her father in law was expected to come to house after duty. The husband being driver was also not in the house at that time. The cumulative effect of the above evidence is that possibility cannot be ruled out that the sexual act was performed by accused with prosecutrix with her consent. The accused is entitled to benefit of doubt. The learned Addl. Sessions Judge has not appreciated the evidence and legal position properly and therefore, impugned judgment of conviction and sentence is not sustainable. 16. In view of above discussion, the appeal is allowed. The judgment dated 15.1.2009 passed by learned Addl. Sessions Judge, Solan in Sessions Trial No.6-NL-/7 of 2008/06 convicting and sentencing the appellant/accused under Section 376 IPC is set aside. The appellant/accused is acquitted of the charge, fine amount, if deposited by the appellant/accused be refunded to him, he be released immediately, if not required in custody in some other case.