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2013 DIGILAW 463 (UTT)

Bhajan Lal @ Ajay v. State of Uttarakhand

2013-07-11

ALOK SINGH

body2013
JUDGMENT : Alok Singh, J. Present appeal is directed against the judgment and order dated 16.03.2012 passed by 1st Additional Sessions Judge Rishikesh, District Dehradun, in Session Trial No. 103 of 2012, whereby appellant was held guilty for the offences punishable under Sections 376 and 506 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.5,000/- , and in default of making payment of fine, to undergo additional imprisonment of three months under Section 376 I.P.C.; to undergo R.I. for a period of one year under Section 506 I.P.C. with the stipulation both the sentences shall run concurrently. Brief facts of the present case, inter alia, are that prosecutrix is the daughter of real sister of the wife of appellant; wife of the appellant was pregnant at the relevant time in the year 2012; on the request of the appellant and his wife, mother of the prosecutrix sent the prosecutrix to the house of the appellant to look after pregnant wife of the appellant (Mausi of the prosecutrix); on 03.05.2012, prosecutrix was alone in the house of the appellant while wife of the appellant was out in connection with some work; prosecutrix was offered to drink juice mixed with sedatives; having drunk the juice, offered by the appellant, prosecutrix started falling unconscious; she was taken by the appellant to the bad room and she was raped therein against the consent of the prosecutrix; prosecutrix was threatened by the appellant to face dire consequences, if she would disclose the incident to anybody; prosecutrix narrated the entire story after gaining consciousness to the wife of the appellant (Mausi) in the evening when she came back from the market; Mausi told the prosecutrix not to disclose this incident anybody since it was the internal affairs of the family and for the sake of reputation of the family; prosecutrix went to her parent on 15.05.2012; having found her depressed, her parent asked her as to what had happened to her; on this, she disclosed entire incident to her parent and on the very next day, father of the prosecutrix PW3 Sudesh Kumar lodged an F.I.R. with the Police Post I.D.P.L. Veer Bhadra Chowki, Police Station Rishikesh, Dehradun; prosecutrix was medically examined, however, definite opinion about rape could not be given by the doctor. Having investigated the matter, charge-sheet was submitted against the appellant for the offences punishable under Sections 376, 328 and 506 I.P.C. After committal of the trial, learned Trial Court framed the charges against the appellant for the offences punishable under Sections 328, 376 and 506 I.P.C. Appellant denied the charges and claimed trial. To prove the prosecution story, prosecutrix PW1, PW2 Dr. Nidhi Upadhyaya, PW3 informant, father of the prosecutrix Sudesh Kumar, PW4 Mehtab Singh, PW5 S.I. Arun Tyagi and PW6 S.I. Bhawana Kanthura were examined and thereafter statements of the appellant was also recorded under Section 313 Cr. P.C. From the side of defence, DW1 Lovekush and DW2 Tinku were examined. After appreciation of the evidence, learned Trial Court held the appellant guilty for the offences punishable under Sections 376 and 506 I.P.C. and sentenced him as narrated hereinbefore vide judgment and order under appeal. I have heard Mr. Lokendra Dobhal, learned counsel for the appellant and Mr. S.K. Chaudhary, learned Addl. G.A. for the State and have carefully perused the record. PW1 Km. Sonam, in her statement on oath, specifically stated that she was sent by her parent to the house of the appellant to look after and serve wife of the appellant (Mausi of the prosecutrix); on 3rd May, 2012, she was alone in the house and was cooking food; meanwhile, appellant came with juice and offered juice to the prosecutrix to drink; without realizing and sensing anything wrong, prosecutrix consumed the juice so offered by the appellant and thereafter started losing control from herself and started falling unconscious; she was taken to the bad room by the appellant wherein she was raped by the appellant; prosecutrix was threatened by the appellant to face dire consequences, if incident was reported to anybody. It was further stated by the prosecutrix that in the evening, when her Mausi came back from market, she narrated the entire incident to her and Mausi advised her not to disclose this anybody for the sake of reputation of the family, since it was the internal affairs of the family, and she would settle it down; on 15th May, 2012, prosecutrix went to her parent; having found her depressed, her parent asked as to what had happened to her; then she narrated the entire incident to her parent and thereafter F.I.R. was lodged. Mr. Mr. Lokendra Dobhal, learned counsel for the appellant vehemently argued that proseuctrix wanted to get marry with Parbesh, real nephew of the appellant, and appellant was not agreeable to such proposal of marriage, therefore, appellant has been falsely implicated in the present case. Mr. Dobhal, learned counsel for the appellant further argued that as per the medical report, prosecutrix was found to be habitual of sexual intercourse and ultimately she got married with Parbesh, after appellant was sent to jail, therefore, prosecution story is doubtful. Mr. Dobhal, learned counsel for the appellant, further contends that incident is of 3rd May, 2012 while report was lodged with the police on 21st May, 2011 and there is no explanation of such delay. As observed hereinbefore, prosecutrix stated in so may words that she reported the matter to her Mausi (wife of the appellant) on the same day evening when she came back from the market, however, she advised her to keep mum and not to report the matter for the sake of reputation of family and she would get the matter settled. Thereafter, she went to her parent and having found her depressed, her parent asked as to what had happened to her, then she disclosed the incident to her parents and thereafter F.I.R. was lodged. In my considered view, delay in lodging the F.I.R. has been duly explained. Hon’ble Apex Court in the case of Sohan Singh and other Vs. State of Bihar reported in (2010) 1 SCC 68 has held as under :- “When FIR by a hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for delayed F.I.R.” Hon’ble Apex Court in the case of Santhosh Moolya and another Vs. State of Karnataka reported in (2010) 5 SCC 445 has held as under:- “Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. State of Karnataka reported in (2010) 5 SCC 445 has held as under:- “Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.” In view of the dictum of the Apex Court, rape is an extremely humiliating experience for a woman. She would not blame anyone but the real culprit. The court must always keep in mind that no self respecting woman would put her honour at stake by falsely alleging commission of rape on her. Argument of Mr. Lokendra Dobhal, learned counsel for the appellant that she has falsely implicated the appellant only because the appellant was not agreeing her marriage with her nephew, cannot be accepted for the simple reason that the prosecutrix had absolutely no occasion to put her honour at stake by falsely implicating the appellant, who was the real uncle of the prosecutrix. It is settled position of law that in the case of sexual offence, sole testimony of the prosecutrix can be relied upon if same seems to be trustworthy. Having read entire statement of the prosecutrix, I do not find any impropriety or unusual thing in the story narrated by the prosecutrix. Learned counsel for the appellant further contended that the prosecutrix was found to be habitual of sexual intercourse, therefore, she might be consenting party. In my considered opinion, argument, so advanced, is liable to be rejected for the simple reason because as per Section 114-A of the Evidence Act, if question comes as to whether prosecutrix was a consenting party, then Court shall presume that she was not a consenting party, if prosecutrix states that she was not a consenting party. In the present case, the proseuctrix has stated that appellant has raped her without her consent and will after making her to drink juice mixed with sedatives. Consequently, the appeal fails and is dismissed. Let copy of the judgment alongwith L.C.R. be sent back to the lower court for information.