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2011 DIGILAW 1499 (RAJ)

Dhulji v. State of Rajasthan

2011-07-26

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The appellant is aggrieved by the judgment dated 5.12.1989 passed by the Sessions Judge, Banswara, whereby the learned Judge convicted the appellant for offence under Section 376 IPC and has sentenced him to seven years of rigorous imprisonment, and has imposed a fine of Rs. 500/- and has directed the petitioner to further undergo a sentence of three months of rigorous imprisonment in default thereof. 2. The brief facts of the case are that on 24.1.1986, Mohar Singh (P.W.10) lodged a report at Police Station Patan about an incident that had occurred on 22.01.1986. According to the complainant, he was teacher at Government School, Kotra. According him, he and his wife lived in a rented premises. However, a week before the incident, they were asked to vacate the house by their landlord. In the same village, the appellant, Dhulji, used to work as Malaria worker in the Health Department. Since the complainant knew the appellant, the appellant offered that they could stay in his quarter. According to the complainant, the quarter consisted of two rooms, a kitchen, a latrine and a bathroom. While the complainant and his wife used to stay in the bigger room, the appellant used to stay in the smaller room. On 22.1.1986, the complainant left his wife in the quarter and went to village Varlipada. At the relevant time, the appellant was in his room. The complainant further claims that after he left the house, the appellant went to his room and ravished his wife. When she shouted for help, another teacher, namely, Babu Lal, rushed to her rescue. But, when he opened the door, the appellant escaped. When the complainant came back to the house around 9.30 a.m., became to know about the said incident. Immediately, he went and informed about the said incident to the Principal, Jaipal. Subsequently, he had his wife went to Varlipada in order to lodge the report. On the same day, he went to Banswara Police Station. He told about the said incident to the Police at Banswara Police Station. But, he was told to report the matter at Patan. At Patan, he was told that the SHO is available only at Kushalgarh. Therefore, he went to Kushalgarh. At Kushalgarh, he found the SHO, who brought him back to Patan and lodged the report. 3. He told about the said incident to the Police at Banswara Police Station. But, he was told to report the matter at Patan. At Patan, he was told that the SHO is available only at Kushalgarh. Therefore, he went to Kushalgarh. At Kushalgarh, he found the SHO, who brought him back to Patan and lodged the report. 3. In order to support its case, the prosecution examined eleven witnesses and submitted nine documents. However, the defence, neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. Mahendra Trivedi, the learned counsel for the appellant, has raised the following contentions before this Court: firstly, the appellant had given shelter to the complainant and hi wife. It is only when he asked him to vacate the quarter, as it was a Government quarter, he has been falsely implicated in this case. Secondly, falsity of the case is writ large, as there is an inordinate delay of two days in lodging of the FIR. In the words of the learned counsel, the appellant was leisurely in filing of the FIR. In fact, he has failed to give any explanation for the inordinate delay. Thus, the period of two days was utilized by the complainant to weave a story against the appellant. 5. Thirdly, although the prosecutrix (P.W. 9) has claimed that she was ravished and injuries were caused on her body, according to the medical report, no injury was discovered on her body. This further reveals the falsity of the case. 6. Forthly, the prosecutrix has changed the place of occurrence. According to her statement given under Section 161 Cr.P.C., and according to the site plan, she was ravished in the very room where she used to live with her husband. However, in her testimony, she claims that she was dragged by the appellant into his room and ravished there. 7. Lastly, in alternative the learned counsel has pleaded that since the case happens to be an old one, from the year 1986, and since the appellant has been out or bail since 1990, a generous view should be taken and the sentence of the appellant should be reduced from seven years to the period already undergone which is about one month and twenty-seven days. 8. 8. On the other hand, the learned Public Prosecutor has vehemently contended that the appellant had taken the complainant and his wife into his confidence and had pretended to be generous in living with him. However, within a week, the appellant had committed rape upon the prosecutrix. 9. Secondly, the prosecution has explained the delay in lodging of the F.I.R. According to Mohan Singh (P.W.10), in his testimony, he had clearly stated that he had gone to Banswara to lodge the F.I.R. But, he was informed that he has to lodge the report at Police Station Patan. Therefore, he had to come back to Patan to lodge the report. However, he had to stay at Kushalgarh in the night. Next morning, he reached Patan. He was informed by the police that the SHO is at Kushalgarh. Therefore, he again went to Kushalgarh. Thereafter, he and the SHO came back to Patan and lodge the report. Hence, the prosecution has explained the delay of two days. 10. Thirdly, the story of the prosecutrix should be believed because a woman would not claim that she has been ravished merely because the landlord has asked her to vacate the premises. Such grave allegations are not leveled lightly by a prosecutrix as it destroys her social prestige and personal standing. 11. Forthly, since there was a delay of four days in examining the injuries suffered by the prosecutrix, the injuries would have vanished. 12. Fifthly, even if there is no corroboration from the medical evidence, nonetheless the testimony of the prosecutrix has to be believed. 13. Sixthly, the testimony of the prosecutrix was recorded after four to five years of the incident. Therefore, even if she has changed the place of the incident, it is part of lapse of memory. Moreover, it is not such a contradiction that would cast doubt about the veracity of her statement. After all, it is a well settled principle that once a lair is not always a liar. 14. Lastly, in catena of cases, the Hon'ble Supreme Court has held that a very serious view has to be taken for offence under Section 376 IPC. Therefore, this Court should not reduce the sentence to "as already undergone". 15 . Heard the learned counsel for the parties and perused the impugned judgment. 16. 14. Lastly, in catena of cases, the Hon'ble Supreme Court has held that a very serious view has to be taken for offence under Section 376 IPC. Therefore, this Court should not reduce the sentence to "as already undergone". 15 . Heard the learned counsel for the parties and perused the impugned judgment. 16. Mohan Singh (P.W.10), in his examination-in-chief, has given a reasonable explanation for the delay in lodging of the F.I.R. According to him, when he came back around 9.30 in the morning, to his house, he was informed by his wife hat the appellant had committed rape upon her. According to him, he immediately went to his school and informed the Principal. He further claims that he had taken to his wife to the village Varlipada. he left her there, and proceeded to Banswara. He reached Banswara at 6.00 p.m. He further claims that he informed the police about the said incident. However, he was told that since the village Kotra falls within the jurisdiction of Police Station Patan, he has to report the case to the Police Station Patan. He further claims that at night, he went to Kushalgarh, where he had no option, but to stay for the night. Next morning, he went to Patan. Where he was told that the SHO has gone to Kushalgarh. Therefore, he came back to Kushalgarh. At Kushalgarh, he met the SHO in the office of the Deputy Superintendent. The SHO brought the complainant back to the Police Station Patan and registered the F.I.R. Thus, the explanation given by the complainant, Mohar Singh, is most reasonable. Therefore, the first contention raised by the learned counsel that there is inordinate delay of two days in lodging of the F.I.R. and no explanation has been given for the said delay is clearly unacceptable. 17. Although, it is true that according to the site plan (Ex.P/3) the place of incident is said to be a room where the complainant and his wife were staying, but according to the testimony of the prosecutrix, the alleged incident had occurred in the room where the appellant was staying. However, considering the fact that her testimony was recorded four to five years after the said incident, such a change of place of incident can safely be attributed to lapse of memory. However, considering the fact that her testimony was recorded four to five years after the said incident, such a change of place of incident can safely be attributed to lapse of memory. Moreover, merely because the place of incident has been changed from her own room to that of the appellant, considering the fact that both the rooms were adjacent to each other, it would not be fatal to the case of the prosecution. Furthermore, what is relevant is that whether the prosecutrix has been ravished or not? Therefore, the second contention raised by the learned counsel for the appellant is unsustainable. 18. The prosecutrix (P.W.9) clearly describes the rape to which she was subjected to. In catena of cases, the Hon'ble Supreme Court has held that the testimony of the prosecutrix should be accepted, even if it were not corroborated by the medical evidence. after all, the prosecutrix is no longer seen as an accomplice to the crime but is seen as a victim of the crime. Therefore, the fact that her testimony is not corroborated by the medical evidence is hardly of any importance. Moreover, considering the fact that prosecutrix was medically examined three days after the said incident, the chances that the injuries may have heeled cannot be ruled out. 19. The contention raised by the learned counsel that he has been falsely implicated merely because he had insisted that the complainant and the prosecutrix should vacate the quarter also does not hold any after. For, in a conservative society like ours, a woman does not lightly implicate a person in a case of rape. After all, the allegation of rape endangers the personal relationship of the prosecutrix with her husband and her in-laws. Moreover, such an allegation would jeopardize her social standing. Therefore, the contention that the appellant is falsely implicated cannot be accepted. 20. As far as the sentence is concerned, in catena of cases, the Hon'ble Supreme Court has opined that in the case of rape and violence against the woman, the Court must adopt a harsh view. After all, the offence of rape not only demolishes the life of the victim, but also shocks the conscience of the society. Therefore, it is not possible to reduce the sentence from even years to as already undergone. After all, the offence of rape not only demolishes the life of the victim, but also shocks the conscience of the society. Therefore, it is not possible to reduce the sentence from even years to as already undergone. For, according to the record, the appellant has undergone merely one month and twenty seven days of his sentence. 21. Therefore, this Court does not find any illegality or perversity in the impugned order. The conviction and sentence is, hereby confirmed. Since the appellant happens to be on bail, his bail bonds are, hereby, forfeited and he is directed to undergo the remaining part of his sentence. 22. The appeal is, hereby, dismissed.