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2013 DIGILAW 939 (RAJ)

Dharamveer v. State of Rajasthan

2013-05-08

AMITAVA ROY

body2013
JUDGMENT 1. - Being aggrieved by the judgment and order dated 16.12.1987 passed by the learned Additional Sessions Judge No. 2, Alwar Camp Behror in Sessions Case No. 15/87 convicting the appellant No. 1 Dharamveer under sections 366 & 376 IPC and appellant No. 2 Ramniwas under section 376 IPC and sentencing them to suffer 3 & 10 years R.I. for the offence under sections 366 & 376 IPC and to pay a fine of Rs. 200/- each, in default to undergo R.I. for further 2 months, they are in appeal. 2. I have heard Mr. Deepak Soni & Mr. Mamraj Jat, learned counsel for the appellants and Mr. Javed Choudhary, Public Prosecutor for the State. 3. An FIR was lodged on 17.05.1987 with the Police Station Behror by one Chhitarmal to the effect that on 16.05.1987 the appellant No. 1 Dharmveer invited him to his house for dinner where he was served liquor. According to the informant, on consuming liquor he became unconscious and spent the night in the house of the host i.e. Dharamveer. When he reached his house in the next morning, his wife Mst. Shakuntala (PW-4) weepingly told him that the appellants earlier in the night had committed rape on her. A police case was registered on the FIR and following the investigation charge sheet was laid against the appellants under sections 366 & 376 IPC. They denied the charge when framed against them before the trial court. After examination of the prosecution witnesses, the statements of the appellants were recorded under section 313 Cr.P.C. in course whereof they reiterated their denial and asserted that they had been falsely implicated. The prosecution examined several witnesses including the prosecutrix Shakuntala (PW-4), Dr. Vishnu Dutt Gupta (PW-5) and the husband of the victim Chhitarmal (informant), PW-6. It also proved the medical report and the forensic science laboratory report on the wearing apparels of the prosecutrix. By the impugned judgment and order, the appellants were convicted and sentenced as above. 4. Mr. Soni has argued that the prosecution case is liable to be rejected on the ground of delay in filing the FIR. As it is wholly unbelievable that the prosecutrix would accompany the appellant No. 1 late in the evening without informing anybody, more particularly, when as per her testimony her maternal uncle was present in the same house on rent, the very genesis thereof is extremely doubtful. As it is wholly unbelievable that the prosecutrix would accompany the appellant No. 1 late in the evening without informing anybody, more particularly, when as per her testimony her maternal uncle was present in the same house on rent, the very genesis thereof is extremely doubtful. According to the learned counsel, as the appellant No. 1 allegedly had represented before the prosecutrix that her husband was seriously ill and that she ought to accompany him, it was wholly unlikely that she would not share the information with her maternal uncle and request him to accompany them in the hour of distress. The learned counsel has contended further that as deposed by the prosecutrix she had left behind her Petticoat that she had been wearing at the place of occurrence and thus, the seized apparels, produced in the court, could not be the one she had been wearing at the time of the commission of the alleged offence. Mr. Soni has thus argued that the report of the forensic science laboratory could, therefore, by no means be connected with the alleged crime. Referring to the medical report pertaining to the prosecutrix, the learned counsel has insisted that it would be apparent therefrom that the charge of rape against the appellants is wholly unfounded and thus, the impugned judgment and order warrants interference in the interest of justice. 5. The learned Public Prosecutor, in response, has contended that the testimony of the prosecutrix as a whole does without any manner of doubt establish the guilt of the appellants and having regard to the heinous nature of the crime committed by them, they had been rightly awarded the sentence. According to the learned Public Prosecutor, the evidence of the prosecutrix when read in conjunction with the medical report and forensic science laboratory report proves the charge against the appellants beyond all reasonable doubt and thus, no interference with the impugned judgment and order is called for. 6. On a consideration of the materials on record and the sequence of events, I am not persuaded to reject the prosecution case on the ground of delay. As the incident according to the prosecutrix took place late in the evening of 16.06.1987, there was no inordinate delay in filing the FIR on 17.06.1987 to be fatal to the prosecution case. On a consideration of the materials on record and the sequence of events, I am not persuaded to reject the prosecution case on the ground of delay. As the incident according to the prosecutrix took place late in the evening of 16.06.1987, there was no inordinate delay in filing the FIR on 17.06.1987 to be fatal to the prosecution case. The victim (PW-4) deposed on oath that at about 9.00 PM on 16.05.1987, the appellant No. 1 visited her house in absence of her husband representing that the latter (her husband) was seriously ill and that he had called her to be by his side. According to this witness, appellant No. 1 told her that her husband had been admitted in the local dispensary and also produced a chit purportedly containing his request to accompany the appellant No. 1. The victim stated that though she was initially hesitant on being persuaded by the appellant No. 1 and having regard to the well being of her husband, she accompanied him (appellant No. 1). According to her, the appellant No. 1 instead of taking her to her husband took her to the roof of a structure, snatched away her baby in arms and sounded appellant No. 2. The witness stated that, on this, the appellant No. 2 inspite of her resistance committed rape on her, where after the appellant No. 1 also had forcible sexual intercourse with her. He thereafter threatened her not to disclose about the incident to anybody else, she along with her husband would be murdered. When she implored before him to take her back to her house promising that she would not inform anybody of this incident, the appellant No. 1 reached her home. The witness stated that her husband returned home early in the next morning and upon being told about the incident, the FIR was lodged. The witness stated further that in course of the incident, her glass bangles were broken and she also suffered injuries. She deposed about the seizure of her blouse and Petticoat by the police at the police station. The witness also identified her wearing apparels when produced in the court. In cross-examination, the victim admitted that the appellant No. 1 had visited her house once or twice before the incident. She, however, stated that they were not in talking terms. She deposed about the seizure of her blouse and Petticoat by the police at the police station. The witness also identified her wearing apparels when produced in the court. In cross-examination, the victim admitted that the appellant No. 1 had visited her house once or twice before the incident. She, however, stated that they were not in talking terms. She admitted of not having informed anyone in the household before she accompanied the appellant No. 1. She admitted to have left behind her torn Petticoat at the place of occurrence. 7. Dr. Vishnu Dutt Gupta (PW-5) examined the appellants for their potency on 20/21.05.1987, Dr. Prahlad Swaroop Agarwal (PW-8) who examined the prosecutrix on 18.05.1987 mentioned about an abrasion on the left upper portion of her chest. He, however, deposed against existence of any injury or blood stain or semen on her this. The witness stated that the hymen of the prosecutrix was torn but there was no tenderness. He disclosed further that the vaginal swab of the prosecutrix though collected and had been sent to the forensic science laboratory examination, the report did not reveal existence of any semen therein. According to the witness, victim was major aged about 20 years and that she was accustomed to sexual intercourse. Dr. Vishnu Dutt Sharma (PW-5) on the basis of his finding on report P-5 and P-6 stated that both the appellants were capable of performing normal sexual intercourse. PW-6 Chhitarmal, the husband of the prosecutrix reiterated the version disclosed to him by her. 8. On reading of the testimony of the prosecutrix as a whole there is nothing discernible to reject the same as wholly unbelievable and concocted. No reason is forthcoming for her to falsely implicate the appellants in the crime. Her evidence narrating the events in succession vividly is cohesive and cogent leaving no manner of doubt of the involvement of the appellants in the crime of abduction and rape. She being a married lady and having been medically examined after two days of the incident, absence of any blood stain or semen on her this and in her vaginal swab does not per se render the prosecution case untrustworthy and false. She being a married lady and having been medically examined after two days of the incident, absence of any blood stain or semen on her this and in her vaginal swab does not per se render the prosecution case untrustworthy and false. Not only did prosecutrix in course of her trial identified the Petticoat that she had been wearing at the time of incident and seized by the police, the forensic science laboratory report, did disclose semen on it on chemical analysis. The appellants were also found to be capable of performing sexual intercourse. Abrasion on the left upper portion of the chest of the prosecutrix and the detected redness on her hymen in the medical report is compatible with the use of force on her. The omission on the part of the doctor to express a definite opinion about commission of rape on her and the view that she was accustomed to sexual intercourse, in my opinion, also does not detract from the authenticity of her version qua the appellants as the offenders, she being an adult married woman. 9. On a cumulative consideration of all the above, I am thus of the view that prosecution has been able to prove the charge of abduction and rape against the appellants beyond all reasonable doubt. I have perused the impugned judgment and order and find myself in agreement that the findings recorded therein. 10. The appeal thus fails and is dismissed. 11. The office would immediately remit the record to the learned trial court which would ensure that the appellants are made to serve the sentence as upheld at the earliest.Appeal dismissed. *******