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2021 DIGILAW 300 (JK)

Subash Chander v. State of J&K

2021-06-29

SANJAY DHAR

body2021
JUDGMENT : SANJAY DHAR, J. 1. This appeal is directed against the judgment of conviction dated 29.03.2018 and order of sentence dated 30.03.2018, passed by learned Sessions Judge, Reasi, in a case arising out of FIR No. 69 of 2011 for offence under Section 376 RPC of Police Station, Reasi. By virtue of the impugned judgment, the appellant has been convicted of offence under Section 376 RPC and vide impugned order of sentence, he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000. 2. Briefly stated, the case of the prosecution before the trial court was that on 04.05.2011 at about 6/7 PM, while the prosecutrix was going to her land to bring back the cattle, the appellant/accused, who was hiding himself, forcibly caught hold of her arms and dragged her to bushes. The appellant/accused gagged her mouth with his hand, broke the cord of her trouser and thereafter committed rape upon her. The appellant/accused thereafter ran away from the spot leaving the prosecutrix on spot in an unconscious state. The prosecutrix was brought back from the spot by her family members and when she regained her senses, she narrated the incident to her mother. The age of the prosecutrix is stated to be 17 years. 3. The report with regard to the above incident was lodged by prosecutrix who was accompanied at the relevant time by her mother, PW-2 Samitri Devi. On the basis of said report, aforesaid FIR came to be registered and investigation was set into motion. During investigation of the case, statement of the prosecutrix under Section 164 Cr.P.C. was recorded and the statements of other witnesses under Section 161 Cr.P.C. were also recorded. The prosecutrix was subjected to medical examination. The salwar that was worn by the prosecutrix at the relevant time was seized and sealed, where after it was sent to the FSL for chemical examination. After investigation of the case, offence under Section 376 RPC was found established against the appellant/accused and the charge sheet was laid before the learned trial court. 4. On 22.03.2012, the learned trial court framed charge for offence under Section 376 RPC against the appellant/accused, who denied the charges and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of its case. 4. On 22.03.2012, the learned trial court framed charge for offence under Section 376 RPC against the appellant/accused, who denied the charges and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of its case. Out of 12 listed witnesses, the prosecution has examined as many as 10 witnesses and given up one witness, PW-5 Rakesh Kumar. 5. After completion of prosecution evidence, the statement of appellant/accused under Section 342 of J&K Cr.P.C. was recorded. The appellant/accused claimed that on account of land dispute between him and the parents of the prosecutrix, a false case has been lodged against him. The appellant/accused entered his defence and examined one witness, DW Des Raj, who also happens to be the father of the prosecutrix, in support of his case. 6. The learned trial court after hearing the parties and after taking into consideration the evidence led in the case, came to the conclusion that the charge for offence under Section 376 RPC is established against the appellant/accused and, accordingly, he has been convicted of said offence in terms of the impugned judgment. 7. The appellant/accused has challenged the impugned judgment on the grounds that there are major contradictions in the evidence led by the prosecution; that the learned trial court while passing the impugned judgment has ignored the fact that there was an ongoing land disputed between the parties which has been admitted by the prosecution witnesses as well as by defence witness, who happens to be the father of the prosecutrix; that the learned trial court has ignored the statement of the father of the prosecutrix who has clearly stated that the report lodged in this case is based upon concocted facts; that the material evidence has been withheld by the prosecution and the learned trial court has failed to draw an adverse inference in this regard against the prosecution and that the impugned judgment is based on wrong appreciation of evidence on record: (3) I have heard learned counsel for the appellant and learned Government Advocate for respondents. I have also considered the grounds of appeal and perused the impugned judgment, evidence on record and the written arguments submitted by the learned counsel for the parties. I have also considered the grounds of appeal and perused the impugned judgment, evidence on record and the written arguments submitted by the learned counsel for the parties. (4) As already noted, the gravamen of charge against the appellant/accused is that on the fateful evening when the prosecutrix was approaching her land, the appellant/accused caught hold of her arm, dragged her and committed sexual intercourse with her. Obviously, there would be no eye witness to the occurrence as such crimes take place in seclusion and secrecy. So the most important and vital piece of evidence in such crimes is the statement of the prosecutrix/victim. Before analyzing the statement of the prosecutrix in this case, we need to notice the legal position governing the appreciation of the statement of a victim of rape. (5) The Supreme Court in the case of State of Punjab vs. Gurmit Singh and Others, (1996) 2 SCC 384 , while laying down the guidelines for appreciating the statement of the victim of rape, has observed as under: “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.” 8. Again in the case of Mohd. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.” 8. Again in the case of Mohd. Imran Khan vs. State Government (NCT of New Delhi), (2011) 10 SCC 192 , the Supreme Court has, while explaining the manner in which the statement of the prosecutrix in a rape case is to be appreciated by the Courts, observed as under: It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called ‘Evidence Act’) nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act 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. 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 the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose 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. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra vs. Chandraprakash Kewalchand Jain, State of U.P. vs. Pappu @ Yunus and Another and Vijay @ Chinee vs. State of M.P.) Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 9. Keeping in view the principles as enunciated by the Supreme Court in the aforesaid judgments, the statement of the prosecutrix is required to be analysed by this Court. Apart from this, the Court, in its appellate jurisdiction, would be well within its powers to reassess the whole evidence to find out whether the conclusion arrived at by the trial court is legally valid and proper. For this, we need to go to the statement of the prosecutrix and other witnesses recoded in the case. 10. It emerges from the evidence on record that the appellant/ accused was well known to the prosecutrix as he happens to be the cousin brother of her father. The prosecutrix has, in her statement, consistently stuck to the allegation that on the evening of 4th of May, 2011, when she was going to her land to look after her cattle, the appellant/accused, who was hiding in her way, caught hold of both her arms, dragged her to the bushes where after he forcibly undressed her trouser and committed rape upon her. According to the prosecutrix, she fell unconscious and appellant/accused ran away from the spot. PW Rakesh Kumar is stated to have taken her to her home where she narrated the incident to her mother. On the next date, the prosecutrix along with her family members went to Police Station, Reasi and got the FIR registered against the appellant/accused. According to the prosecutrix, she fell unconscious and appellant/accused ran away from the spot. PW Rakesh Kumar is stated to have taken her to her home where she narrated the incident to her mother. On the next date, the prosecutrix along with her family members went to Police Station, Reasi and got the FIR registered against the appellant/accused. She admitted the contents of the FIR as also the contents of her statement recorded under Section 164 Cr.P.C. which is on similar lines. She also stated that she was subject to medical examination. 11. There is no major contradiction in the cross examination of the prosecutrix. However, one thing which has emerged from her cross examination is that there was an ongoing land dispute between her parents and the accused. She has also stated that after lodging of the report, there were talks of compromise between her parents and the accused/appellant at the instance of Panchayat and it was agreed that the appellant/accused would bear the expenses of her marriage and the land dispute would be put to an end. On that condition, a settlement was arrived whereby it was agreed that the proceedings in the case would be put to an end. However, according to the prosecutrix the appellant/ accused did not fulfill the conditions, as such, they went ahead with the proceedings. She has also admitted that if the appellant/accused would have honoured the settlement, she would not have proceeded ahead with the case. 12. The statement of PW-2 Samitri Devi, the mother of the prosecutrix, is also on similar lines. She has corroborated the version of her daughter by stating that immediately after the occurrence, the prosecutrix narrated the incident to her. As per her statement, the version of occurrence narrated to her by her daughter is on similar lines as narrated by the prosecutrix in her statement recorded before the Court. The witness has further confirmed the fact that after lodging of FIR, Sarpunch of the Village had asked them to put an end to the proceedings and it was decided that the family of the appellant/accused would bear the expenses of marriage of the prosecutrix and on that condition, the prosecutrix would not proceed with the case against the appellant/accused. 13. 13. DW Des Raj, the father of the prosecutrix, has stated that he had an ongoing land dispute with the appellant/accused and his family members and that on account of anger, the FIR was lodged against the appellant/accused. He has further stated that a settlement was arrived at between the parties before the Panchayat and the same was recorded on a stamp paper, a copy whereof has been placed on record. The witness admitted the contents of the writing according to which the report had been lodged by his daughter on account of land dispute between the parties and that the allegation of rape as contained in the report is false. However, in his cross examination, DW Des Raj has admitted that he does not know Urdu and that he did not know as to what was written on the stamp paper when he put his thumb impression on the same. He has further stated that he is making the statement in favour of the appellant/accused because he happens to be his cousin brother. 14. So far as the medical evidence on record is concerned, we have the statement of PW-10, Dr. Renu Sudha, who has examined the prosecutrix on 05.05.2011. She has stated that she found bruises on the left thigh of the prosecutrix and on the basis of FSL report of vaginal swabs taken from the prosecutrix, it was found that human spermatozoa was present in the vagina of the prosecutrix. On this basis, the witness has stated that there was an evidence of recent sexual intercourse on the prosecutrix. 15. PW-8, Mool Raj, Scientific Officer, has, after examining the vaginal swabs taken from the prosecutrix, opined that microscopical examination of these swabs revealed presence of human spermatozoa. 16. Besides this, PW-9, Dr. I.P. Singh, has, after examining the appellant/accused, opined that he was capable of performing sexual intercourse. 17. From the foregoing evidence on record, it emerges that the prosecutrix has consistently stated that she has been forcibly sexually ravished by the appellant/accused. The medical evidence on record corroborates this fact, inasmuch as human spermatozoa was found in the vaginal swab of the prosecutrix and she was also found to have suffered bruises on her left thigh. 17. From the foregoing evidence on record, it emerges that the prosecutrix has consistently stated that she has been forcibly sexually ravished by the appellant/accused. The medical evidence on record corroborates this fact, inasmuch as human spermatozoa was found in the vaginal swab of the prosecutrix and she was also found to have suffered bruises on her left thigh. The question arises as to whether this statement of the prosecutrix, which is corroborated by the medical evidence on record as well as by the statement of her mother, deserves to be relied upon in face of the evidence on record which shows that there was an ongoing land dispute between the family of the prosecutrix and the family of the appellant/accused and also on account of the fact that a settlement had been arrived at between the parties whereby the appellant/accused had undertaken to bear the expenses of marriage of the prosecutrix and on that condition the prosecutrix had agreed to put an end to the case. 18. According to the learned counsel for the appellant/accused, in the face of aforesaid proved facts, the statement of the prosecutrix does not deserve to be relied upon, particularly when her own father has clearly stated that a false report had been lodged against the appellant/accused by his daughter. 19. The argument of learned counsel for the appellant/accused appears to be attractive but then we have to bear in mind the circumstances in which the settlement between the family of the prosecutrix and the family of the appellant/accused was negotiated by the Panchayat as also the quality of evidence on record in support of the prosecution case. We have also to take into account the relationship between family of the prosecutrix and the family of the accused. 20. So far as the negotiation and settlement which has taken place between the parties is concerned, the same has been initiated by the Panchayat only after the report had already been lodged by the prosecutrix before the police. It is not a case where the settlement and negotiation between the parties had taken place prior to the lodging of the report and on account of non-fulfillment of conditions of settlement, the prosecutrix set the law into motion but it is a case where the prosecutrix immediately after the occurrence lodged the report and the negotiations started only thereafter. It is not a case where the settlement and negotiation between the parties had taken place prior to the lodging of the report and on account of non-fulfillment of conditions of settlement, the prosecutrix set the law into motion but it is a case where the prosecutrix immediately after the occurrence lodged the report and the negotiations started only thereafter. That distinction between the two situations is fine but the same is of great significance having a vital bearing upon the outcome of this case. 21. It is a fact of common knowledge that in a rural society once a crime takes place and the law is set into motion, the village elders and Panchayat intervene and try to settle the matter between the parties but that does not mean that the crime itself has not taken place. It is not a case where the prosecutrix has lodged the FIR in order to coerce the appellant/accused to part with money for meeting the expenses of her marriage but it is a case where this condition was negotiated by the Panchayat so as to put an end to the prosecution which had already been set into motion. The money negotiated was not a consideration for not lodging a false FIR but it was a consideration for not proceeding with a genuine prosecution. So in my considered opinion, the negotiation and the settlement arrived at between the parties in the instant case would not by itself make the prosecution case false. 22. So far as the land dispute between the parties is concerned, the same, as per the evidence on record, was going on between the parties for many generations and in these circumstances, it is extremely improbable that a girl would put herself to disrepute and go to the extent of supporting her parents to lodge a false case merely due to some enmity with the family of the appellant/accused putting her honour at stake, that too at tender age of 17 years. The prosecutrix though has admitted that she had signed the writing on a stamp paper, according to which she had lodged a false report against the appellant/accused yet she categorically denied the contents of the said writing and stated that she did not understand the contents of the said writing. The prosecutrix though has admitted that she had signed the writing on a stamp paper, according to which she had lodged a false report against the appellant/accused yet she categorically denied the contents of the said writing and stated that she did not understand the contents of the said writing. The defence has not produced the scribe of the said writing as a witness so as to falsify the stand taken by the prosecutrix: (3) So far as the writing executed by DW Desh Raj is concerned, he has admitted its contents. In his cross examination, he has stated that he does not know Urdu and that he did not know as to what was written on the stamp paper when he put his thumb impression on the same. He has further stated that he is making the statement in favour of the appellant/accused because he happens to be his cousin brother. Thus, it is can safely be stated that the father of the prosecutrix has deposed in favour of the accused only to save the relationship between the families as the accused happens to be his cousin brother. His statement, therefore, does not make any adverse impact on the prosecution case. (4) Keeping in view the foregoing discussion of the evidence on record and having regard to the sterling quality of the statement of the prosecutrix, wherein she has consistently supported the prosecution case coupled with the corroborative medical evidence and the statement of the mother of the prosecutrix, this Court is not persuaded to take a view different from the one taken by the learned trial court. The view taken by the learned trial court is well reasoned and based on correct appreciation of evidence on record. Thus, the impugned judgment does not call for any interference from this Court. (5) Accordingly, the impugned judgment of conviction passed by the learned trial court is upheld and the appeal is dismissed.