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2020 DIGILAW 111 (RAJ)

Moolya S/o. Umrav v. State of Rajasthan

2020-01-09

GOVERDHAN BARDHAR

body2020
JUDGMENT : 1. Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 8.12.1988 passed by the Court of learned Additional Sessions Judge, Karauli camp Hindon City, District Sawaimadhopur [for short ‘the learned trial Court’] in Sessions Case No.92/88, State of Rajasthan vs. Moolya, whereby the learned trial Court has convicted and sentenced the accused-appellant as under:- U/s.376 IPC: Seven years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo one year rigorous imprisonment. 2. Facts of the case in nutshell are that Ramcharan Mali (PW4) submitted a written report (Ex.P7) to the SHO, Police Station Mahwa mentioning therein that on 15.02.1984 at about 9:00 AM his younger brother’s wife Mst. Kiran Devi had gone to look after the field situated far flung their village (by the side of Ghutna Med). When she was looking after her Gram field, Moolya S/o. Umrav reached his field hideously at the spot where his younger brother’s wife was looking after the field. At about 10:00 AM, he dragged his younger brother’s wife in the field of Brijmohan Brahmin and raped forcefully. Mst. Kiran Devi returned back weeping and narrated the entire facts. The ‘blouse’ (Kamij), Peticot and Dhoti of his younger brother’s wife were torn. He along-with his younger brother’s wife went to lodge the report. 3. On the basis of aforesaid written report (Ex.P7), an FIR No.13/1984 (Ex.P8) was registered for the offence under section 376 IPC. The victim was medically examined. After completion of investigation, the police filed a charge-sheet in the matter. 4. Prosecution in support of its case produced 11 witnesses and exhibited 18 documents. Thereafter, the statement of accused appellant was recorded under section 313 Cr.P.C. In defence the accused appellant did not examine any witness nor exhibited any document. 5. After completion of trial, the trial court convicted and sentenced the accused appellant as mentioned above. 6. Learned counsel for the appellant argued that appellant has been falsely implicated in the case. Prosecution did not produce material evidence. As per statement of PW-1 – Victim, she first brought this fact into the notice of sister-in-law Mst. Rampati. As per the statement of PW-4 Racharan he was told about the incident by Mst. Rampati but Rampati was not produced by the prosecution. Prosecution did not produce material evidence. As per statement of PW-1 – Victim, she first brought this fact into the notice of sister-in-law Mst. Rampati. As per the statement of PW-4 Racharan he was told about the incident by Mst. Rampati but Rampati was not produced by the prosecution. Trial Court erred in believing the statements of PW-1 – Victim and PW-2 Smt. Bhoji, PW-3 Ramphool, PW-4 Ramcharan, PW-5 Brijmohan because they are interested witnesses and they have previous enmity on account of the fact that the cattle belonging to the accused grazed in the field of Mst. Kiran Devi and Brijmohan. Thus, they cannot be said to be reliable witnesses. As per medical report (Ex.15), victim is a married lady and about 18 years of age. There was no injury either on the back or on the heaps as also no injury on the private parts of her body. No bleeding was observed by the doctor in the report. So far as semen stain on the cloths are concerned, he contended that the Hon’ble Supreme Court in Rahim Beg v. State of U.P. (1972) Cri.L.J. 1260, held that semen stain can exist because of a variety of reasons and would not necessarily connect him with the offence of rape. He further contended that there is no evidence to prove that semen found on the clothes were of accused as the same were not got compared by cogent evidence. In this connection he also referred to the decision in the case of Tulsi Ram v. State of Rajasthan 2000 Cri.L.J. 1634 (Rajasthan). He, therefore, contended that the accused is entitled to the benefit of doubt and is liable to be acquitted. 7. PW-9 Dr. K.B. Mishra in cross-examination admits that he did not find injuries, bite marks or scratch on the person of victim. 8. Learned Public Prosecutor supported the judgment passed by the trial court and contended that the statement of victim is corroborated with the statement of Ram Charan (PW4). So far as injury report is concerned, it is contended that there are abrasions on the person of victim, but the statement of the victim is trustworthy and it does not require any corroboration by medical evidence particularly when her statement is corroborated by other evidence i.e. statement of Ram Charan (PW4). So far as injury report is concerned, it is contended that there are abrasions on the person of victim, but the statement of the victim is trustworthy and it does not require any corroboration by medical evidence particularly when her statement is corroborated by other evidence i.e. statement of Ram Charan (PW4). Thus there is no reason to disbelieve the testimony of the victim in the facts and circumstances of the present case. Therefore, it was contended that there is no merit in this appeal and the same be dismissed. 9. I have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment as well as the record of the trial court. 10. The question for determination in the present case is whether the testimony of the prosecutrix Kiran Devi (PW1) and complainant Ram Charan (PW4) inspires confidence of the Court and even in absence of corroboration from the medical evidence, the accused can be convicted on the basis of aforesaid statements. 11. PW-1 victim in her statement deposed that on the date of incident she was sitting on the boundary of field. Her field is adjacent to the agricultural field of Brijmohan in which there was ‘Arhar’ crop. During the course of her watch of the field, Moolya (accused) came there armed with ‘Tonchiya’. Moolya (accused) immediately caught hold of her both hands and told her to go with him in the crop of ‘Arhar’. When victim refused, Moolya forcefully took her (victim) in the field of ‘Arhar’ and after removing her underwear and ‘peticot’ committed rape. PW1 further deposed that when she raised alarm then Moolya (accused) put his hands on her mouth. PW1 also deposed that Moolya (accused) bite her chicks. After that she narrated entire incident to her mother-in-law. Thereafter, she along-with her mother-in-law and brother-in-law went to lodge the FIR. 12. Complainant Ramcharan (PW4) deposed that when he reached home, the family ladies informed him about the incident. Thereafter, he went to lodge the report at Police Station Mahwa along-with his mother Bhoti and victim Kiran Devi (PW1). Written report is Ex.P7 and A to B are his signatures. Accused Moolya who committed rape with Kiran Devi (PW1) is present in the Court. 13. PW-9 Dr. K.B. Mishra deposed that he medically examined victim. He deposed the that during the course of medico-legal-examination he found following injuries:- “1. Written report is Ex.P7 and A to B are his signatures. Accused Moolya who committed rape with Kiran Devi (PW1) is present in the Court. 13. PW-9 Dr. K.B. Mishra deposed that he medically examined victim. He deposed the that during the course of medico-legal-examination he found following injuries:- “1. Abrasion 2 1/2 cm X 2 c.m. on the left chick on the upper lip. 2. Abrasion 0.4 cm X 0.1 cm on the right upper lip. 3. Abrasion 1 1/2 cm X 0.1 on the right thigh.” 14. He further deposed that as per his opinion victim was subjected to sexual intercourse as there was semen stains on the clothes of the victim. 15. In defence accused failed to prove that due to enmity he has been involved in false case. No circumstances exist on record to disbelieve the statement of the victim. 16. The evidence of victim Kiran Devi (PW1) and complainant Ram Charan (PW4) has been examined minutely and from their statements, charge is fully proved against the accused appellant and from their lengthy cross-examination, it has not come on record that what was motive of the victim Kiran Devi (PW1) for complainant to falsely involve the accused and in absence of it there should be no hesitation in accepting the testimony of victim Kiran Devi (PW1). 17. The learned counsel for the appellant could not point out any motive whatsoever to implicate the accused falsely by the victim. Learned counsel for the accused has also referred the statement of the accused recorded under section 313 Cr.P.C., in this connection and contended that the accused has specifically stated that when he was grazing the she-goats, his she-goats went in the fields of Brij Mohan Kiran Devi. Due of loss in the fields, they abused him and falsely implicated in this matter. If the statement of accused as well as cross-examination of Ram Charan (PW4) and victim (PW1) in this regard are examined minutely then it is established that the accused has committed the crime, but it is not going to help the accused in any manner, rather it goes against the accused connecting the accused with the crime. 18. In these circumstances, I find that no motive has been established on the part of the victim (PW1) or Ram Charan (PW4) to involve the accused in the charge falsely in the present case. 18. In these circumstances, I find that no motive has been established on the part of the victim (PW1) or Ram Charan (PW4) to involve the accused in the charge falsely in the present case. In absence of any motive of the complainant party in this regard, there should not be any hesitation in accepting the testimony of victim. Victim (PW1) has specifically stated in her statement that she was ravished by the accused. The name of the accused was mentioned in the written report (Ex.P7) also, which was lodged immediately after the incident took place. The statement of victim (PW1) is corroborated by Ram Charan (PW4). Even if there is no corroboration of the statement of victim with the medical report then it is not fatal to the prosecution case, and accused can be convicted on the basis of statement of victim alone, whose statement inspires confidence of the court as the same is found to be trustworthy and can be made basis for conviction of the accused. 19. The Division Bench of this Court in Mangi Lal vs. State of Rajasthan, reported in 2007 (4) RLW(Raj.) 2768 while dealing with the case of Sri Narayan Saha and Anr. v. State of Tripura, reported in (2004) 7 SCC 775 , dismissed the appeal filed by the accused therein and maintained the impugned judgment of conviction and sentence passed by the trial Court. In Sri Narayan Saha and Anr. (supra) in para 6 and 7 the Hon’ble Apex Court held ad-infra:- “6. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short “the Evidence Act”) nowhere says that her evidence cannot be accepted unless it is corroborated by material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of prosecutrix it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. 7. The aforesaid position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand Jain and Kernel Singh v. State of M.P.” 20. In view of the above settled position of law in respect of offence relating to rape, makes it clear that prosecutrix is not accomplice but a victim of the crime and a conviction can be maintained on her sole testimony. Her evidence must receive the same weight as is attached to an injured witness and it can be accepted without corroboration if the court, keeping in mind that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her is satisfied that it can act on her evidence. The Hon’ble Apex Court has also held that if the victim does not have a strong motive to falsely involve a person charged, the court should ordinarily have no hesitation in accepting her evidence. 21. The Hon’ble Apex Court has also held that if the victim does not have a strong motive to falsely involve a person charged, the court should ordinarily have no hesitation in accepting her evidence. 21. In view of above discussion, I do not find any force in any of the contentions of the learned counsel for the accused appellant. 22. In the result, the appeal filed by the accused-appellant is without any merit and accordingly stands dismissed and the impugned judgment of conviction and sentence passed by the trial court is maintained. Registry is directed to send back the record the case to the Court concerned forthwith. 23. However, trial Court is directed to proceed in the matter in accordance with law.