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2022 DIGILAW 362 (JK)

Rakesh Kumar v. State of J & K

2022-07-29

MOHAN LAL, RAJNESH OSWAL

body2022
JUDGMENT : Mohan Lal, J. 1. Appellant/convict has preferred this criminal conviction appeal under section 410 Cr.P.C. against impugned judgment and order of conviction dated 01.03.2016 rendered by the court of learned 3rd Additional Sessions Judge, Jammu (Fast Track Court) in case titled "State v. Rakesh Kumar" for the commission of offences punishable under section 376 RPC bearing FIR No. 41/2013 of Police Station Bishnah, whereby appellant/convict has been sentenced to suffer rigorous imprisonment for 12 years and fine of Rs. 1,00,000/-. 2. Feeling aggrieved by the impugned judgment of conviction and order dated 01.03.2016,appellant/convict has questioned its legality, propriety and correctness, and has sought its setting aside/quashment on the following grounds:- (i) that the trial court has not properly weighed the evidence and has taken adverse view, whereas, the evidence of the prosecutrix is mutually contradictory to the version in FIR and has no ring of truth and suffers from contradictions and discrepancies in its testimony before the trial court, there by, the testimony of the prosecutrix is totally unreliable; (ii) that the bare perusal of the FIR reveals the fact that the alleged occurrence of rape occurred in open field where other persons/farmers were working closely in the fields, and in the said FIR the prosecutrix states that she felt ashamed of getting raped in presence of other persons/farmers, this version of prosecutrix narrated in the FIR itself is highly improbable as no rape can occur in the presence of other persons; (iii) that the trial court has not looked into the angle of delay in lodging FIR and the explanation given by the trial court is that the victim is a rustic lady and was supposed to wait for her husband for taking such a decision but nothing prevented her brother-in-law (Jeth) of the victim or other villagers present on spot during the occurrence of rape or even her son to report the matter to the police, and this fact has to be viewed conjointly with the fact that none of the above said persons i.e. her brother-in-law (Jeth) namely Jita Ram and other villagers were present on the spot have deposed in favour of the prosecution; (iv) that the vaginal smears, the medical reports etc. have not corroborated the version of the prosecutrix, as the medical report is silent regarding the commission of rape, while the trial court has laid emphasis on the fact that the semen stains were found on the salwar of prosecutrix which fact is difficult to infer that she was raped by the appellant; (v) that no article/seized material was ever produced in the trial court, the testimony of the prosecutrixis not of sterling worth of very high quality and caliber which can be accepted on its face value, the trial court judgment is perverse as the veracity of the testimony of prosecutrix is full of discrepancies and is unbelievable, the trial court has not thoroughly evaluated the testimony and cross-examination of the Investigating Officer of the case, as the Investigating Officer in the cross-examination has exposed the height of unfair and biased investigation. 3. The prosecution is pregnant with a story that Police Station Bishnah swung into action on receipt of a written report filed by the prosecutrix on 05.04.2013 alleging therein that on 01.04.2013 at about 04:00 p.m., she had gone to her fields for bringing cattle fodder (grass) and while she was cutting the grass in her fields, suddenly one person from back side caught hold of her whereby she turned back and saw that one Angrez Singh S/o Baldev Singh R/o Chak Bana Tehsil Bishnah has caught her, though she tried to get herself free from the said person, however the said person pushed her with great force and made her to fall on the ground and with his criminal intention by breaking the string of her salwar, the said person without her will and consent committed rape upon her, she tried to raise hue and cry but the said person snatched drati (sickle) from her and threatened to kill her, and after commission of rape fled from the spot, at a nearby distance from the place of occurrence some other persons were busy in their work, she due to shame bowed her eyes down and went to her home, her husband was not at home and when he came back after 2/3 days, she talked to him who advised her to lodge the report. 4. 4. On the aforesaid report, case bearing FIR No. 41/2013 of Police Station Bishnah for the commission of offence punishable under section 376 RPC was registered against accused and the investigation entrusted to Sub-Inspector Amar Chand. The Investigating Officer (I.O.) during the course of investigation, prepared the site plan, conducted the photography of the scene of crime, seized the trouser as well as the underwear of the victim and drati (sickle) and prepared seizure memos, got the prosecutrix medically examined, sent vaginal slides of the prosecutrix to FSL for analysis and prepared seizure memos and got it resealed, got recorded the statement of the prosecutrix under section 164-A Cr.P.C. and also got conducted the identification parade of the accused. After completion of the investigation, the charge-sheet was laid against the appellant in the court of learned Judicial Magistrate 1st Class, Bishnah on 23.05.2013 for commission of offence under section 376 RPC, and on the same date the charge-sheet was committed to the court of learned Principal Sessions Judge Jammu who in turn transferred the same to the court of learned 3rd Additional Sessions Judge, Jammu (Fast Track Court) vide order dated 06.06.2013. On 02.07.2013, charges against accused were framed. The contents of charges were read overand explained to the accused who pleaded not guilty to the charges and preferred trial. In a bid to prove its case against appellant/accused, prosecution has examined as many as seven (07) witnesses out of listed 13 namely,PW-1 Prosecutrix, PW-2 Balkari Lal (husband of the prosecutrix), PW-5 Constable Arjun Kumar (witness to seizure memo), PW-7 Mool Raj (Scientific Officer, FSL Jammu), PW-8 Dr. Rakesh Kumar Sharma (witness to prove the potency of accused), PW-10 Kapil Kant Khajuria (Tehsildar Bishnah and witness to the identification parade of the accused) and PW-12 Mr. Amar Chand (Sub-Inspector, I.O.). 5. Be-it-noted, that the evidence of PW-9 Amandeep (Gynaecologist CHC, Bishnah) has been admitted by the appellant/accused during trial and therefore, the said witness was not examined in the trial court. The evidence of the prosecution was closed vide order of the trial court dated 01.12.2015. As in terms of Section 273 Cr.P.C. after hearing the prosecution and the defence, the accused was not acquitted, therefore, the statement of accused in terms of Section 342 Cr.P.C. was recorded wherein accused/appellant denied all the incriminating circumstances/evidence against him, pleaded his innocence and false implication in the case. As in terms of Section 273 Cr.P.C. after hearing the prosecution and the defence, the accused was not acquitted, therefore, the statement of accused in terms of Section 342 Cr.P.C. was recorded wherein accused/appellant denied all the incriminating circumstances/evidence against him, pleaded his innocence and false implication in the case. In terms of order of the trial court dated 21.12.2015 as the counsel for the accused did not wish to examine any defence witness, the defence evidence of the accused/appellant was closed and the case was fixed for final arguments on 30.12.2015.After hearing the final arguments, the accused has been convicted vide impugned judgment of the trial court dated 01.03.2016, hence the criminal appeal before this Bench. 6. The material star witness of the prosecution viz.; PW-1 Prosecutrix who is the alleged victim of commission of rape upon her by appellant/convict during her testimony before the trial court has deposed in the following manner : "About ¾ months ago, she had gone to her field at about 3:45 P.M. Accused came there and caught hold of her and committed rape upon her and fled away from the spot and thereafter prosecutrix went to her home. She did not disclose the incident to anyone because of her reputation. Her husband was not at home and he came to home after2/3 days and she narrated about the occurrence to him and thereafter filed a written report to the police station, its contents are true, identifies her signatures over the same, which is exhibited as EXT-P1. She cannot say, whether accused was having any weapon at the time of occurrence. She furnished her clothes and darati to the police, which have been seized by the police and seizure memo was prepared, its contents are true, which is exhibited as EXT-P1/1. Her medical examination was also got conducted and statement under section 164-A Cr.P.C. was also got recorded in the court of learned JMIC Bishnah, same bears her signature. On cross-examination by learned defence counsel, she has stated that she has not seen the seized clothes and darati today in the court. Her medical examination was also got conducted and statement under section 164-A Cr.P.C. was also got recorded in the court of learned JMIC Bishnah, same bears her signature. On cross-examination by learned defence counsel, she has stated that she has not seen the seized clothes and darati today in the court. At the time of occurrence, she was having darati in her hand but she was unable to use the same at the time of occurrence, although after the occurrence she chased the accused but he fled away from the spot, this fact is not recorded in her statement recorded under section 164-A Cr.P.C.. She has three daughters and all are married. She has also one son who is still unmarried. She is illiterate but she can sign. She does not remember the date of occurrence. At the time of occurrence, she had raised alarm, but, no body was working in the fields at that time. However, when she was chasing the accused, she met with one person of another village and she narrated her that accused had done wrong with her. She has neither mentioned this fact in the FIR nor in herstatement recorded under section 164-A Cr.P.C.. Police had not read over the contents of the report to her. When she had gone to the police station, one person was present there who had written the report. She does not know whether he was a civilian or police personnel. She cannot say that how it is written in the report that at a short distance from the place of occurrence, some persons were working, however, she had not narrated the same in her report. On the day of occurrence, her husband had gone to Janipur in the house of his relative and from where he had gone to Punjab. She had got recorded in her statement that on the day of occurrence, her husband was at Punjab, but the same was not recorded in her statement. It took half an hour to reach the place of occurrence from her house. No injury has been inflicted to her on the day of occurrence. Accused had given a teeth bite to her hand with and this fact was neither told to the doctor nor to her husband and nor she had recorded the said fact in her statement recorded under section 164-A Cr.P.C.. No injury has been inflicted to her on the day of occurrence. Accused had given a teeth bite to her hand with and this fact was neither told to the doctor nor to her husband and nor she had recorded the said fact in her statement recorded under section 164-A Cr.P.C.. Police had taken her to Bishnah Court and at that time her husband and one Jeeta Ram were accompanying her. Her brother-in-law namely Jeeta Ram also accompanied them while going to police station, however, Sarpanch of the village had not accompanied them to the police station. Perhaps her husband had narrated about the occurrence to Sarpanch. Police had seized the darati from her house. She does not remember who has signed the seizure memo besides herself. Accused had raped her in the field of wheat and at that time wheat crop was about 2 feet in height. Her clothes were not torn and string of her Salwar was not broken because the accused had pulled her Salwar. She knew the accused before the occurrence, and before this occurrence, accused had not done anything wrong with her. Accused is also known in the village as Angrez Singh, however, his real name is Rakesh Kumar, which fact she came to know later on. She has denied the suggestion of learned defence counsel that the accused had raped her with her consent". 7. We have heard learned counsel for the parties and gone through the record. It is true that rape is one of the most heinous and reprehensible of crimes that can be committed on a woman and it is for this reason that courts have leaned heavily in favour of such a victim [See: [1]State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384 ]. The veracity of the story projected by the prosecution qua allegations of rape in the case in hand must, thus, be examined. In so far as allegations of rape are concerned against the appellant/convict, the evidence of the prosecutrix in the case in hand must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as gospel truth. In so far as allegations of rape are concerned against the appellant/convict, the evidence of the prosecutrix in the case in hand must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as gospel truth. It is true that in rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case setup by the prosecutrix, the court shall not act on solitary evidence of the prosecutrix. The court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 8. The critical appraisal of the deposition of PW-1 Prosecutrix makes it abundantly clear, that accused/convict came from the back side caught hold of her and committed rape upon her and fled away from the scene of crime where after she went to her home and did not disclose the incident to anyone and after 2/3days she narrated the incident to her husband when he came at home. In her cross-examination, the prosecutrix has categorically stated that she was having a drati (sickle) in her hand but was unable to use the same. Furthermore, in the report EXT P-1 lodged by the prosecutrix with police she has categorically stated that near the place of occurrence some other persons were busy working in the fields, however she has taken a complete somersault before the trial court by deposing that at the time of occurrence she raised alarm but nobody was working in the fields, and more-so she cannot say how it is written in the report that at a short distance some persons were working. The prosecutrix has further stated in her report EXT P-1 that during the commission of rape, appellant/accused broke string of her salwar, however in her deposition before the trial court she has putforth highly contradictory version that string of salwar was not broken but appellant/accused pulled down hersalwar. The prosecutrix has further stated in her report EXT P-1 that during the commission of rape, appellant/accused broke string of her salwar, however in her deposition before the trial court she has putforth highly contradictory version that string of salwar was not broken but appellant/accused pulled down hersalwar. PW-9 Amandeep is the gynaecologist CHC, Bishnah who has conducted the medical examination of the prosecutrix and has seen no marks of the injury on the genitals of the prosecutrix as well as no spermatozoa were seen and as per the opinion of the Doctor, there was no evidence of recent sexual intercourse. Once it is established that victim/prosecutrix as in the case in hand has offered no resistance, possibility of any marks whatsoever on her body showing the violence is completely ruled out. From the above, it appears that victim/prosecutrix has surrendered her fate and did not resist at all. No injuries have been found on the thighs, buttocks, back and over the breast of the victim/prosecutrix. The victim/prosecutrix in the case in hand has not offered any resistance to the act of commission of rape by appellant/convict upon her even she was having drati(sickle) in her hand being a weapon of defense to her. No injuries on the private parts of the victim/prosecutrix have been seen by the doctor even when she was forcibly being molested by appellant/convict. It was expected from the prosecutrix that when the accused/appellant/convict without her consent was trying to sexually assault her, she would have scuffled with the accused and in that scuffle there was possibility of her clothes or the clothes of accused torn out and even there was possibility of any injury on part/parts of her body. Why the prosecutrix has not defended her person/body against the sexual assault by the accused while she was be ingraped is a million dollar question, which has remained unexplained by the prosecutrix in her deposition before the trial court. As per the testimony of the prosecutrix, she has not received any injury and when she lodged the report EXT P-1 to the police, the contents of the report were not read out to her. Even it has come in the evidence of the prosecutrix in cross-examination that accused gave teeth bite on her hand but the said teeth bite was neither shown by the prosecutrix to the doctor nor to her husband. Even it has come in the evidence of the prosecutrix in cross-examination that accused gave teeth bite on her hand but the said teeth bite was neither shown by the prosecutrix to the doctor nor to her husband. The deposition of the prosecutrix that her clothes were not torn and string of her Salwar was not broken because accused had pulled down her Salwar, is a clear fact that she has not resisted to the act of sexual assault by the accused and has not made any effort to save herself. The conduct of prosecutrix in not trying/making any attempt to save herself from the accused/convict when she was being molested even when she was having drati (sickle) in her hand clearly shows that she has not offered any sort of resistance to the accused in the act of rape and from the conduct of the prosecutrix, it can be safely inferred that she was a consenting party to the act of rape. 9. Hon'ble Supreme Court in AIR 2012 SC 2281 Narender Kumar v. State (NCT of Delhi), while apprising the testimony of prosecutrix/victim has held as under:- "When the evidence of prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and even there being no injury on her person even through her version may be otherwise, no reliance can be placed on her evidence". Ratio of the judgment (supra) makes the legal proposition abundantly clear, that when the evidence of prosecutrix suffers from serious infirmities/inconsistencies and no injury on her person found, consent on part of the prosecutrix cannot be ruled out, and no reliance can be placed on her evidence. On critical appreciation of evidence of prosecutrix PW1, we are of the opinion that the veracity of the deposition of prosecutrix is shaky and it can never be presumed that her evidence is gospel truth, therefore, the evidence of prosecutrix does not in spire confidence in the mind of this Court, the same is inadmissible in evidence and no reliance can be placed on hertestimony. 10. PW-2 Balkari Lal is the husband of the prosecutrix. His evidence is to the effect that the prosecutrix hasnarrated the story of alleged commission of rape to him. 10. PW-2 Balkari Lal is the husband of the prosecutrix. His evidence is to the effect that the prosecutrix hasnarrated the story of alleged commission of rape to him. PW-5 Constable Arjun Kumar is a witness to the seizurememo and has deposed that during investigation ASI Amar Chand prepared one parcel but he does not know about the article lying in the said parcel. PW-7 Mool Raj is a scientific officer, FSL Jammu has stated that the contents of the packet marked "A", "B" and "C" 5, 5 and 5 were subjected to chemical and microscopical examination for detection of human spermatozoa which reveals the presence of semen/human spermatozoa but in cross-examination he has categorically stated that he cannot say whether the semen so detected belongs to whom as he has not conducted the DNA profiling of the samples in the lab due to lack of facility. PW-10 Kapil Kant Khajuria (Tehsildar, Bishnah) had attended the identification parade of the accused conducted in Police Station on 16.04.2013 and during the identification parade, accused/appellant was identified by the prosecutrix.PW-12 Amar Chand (Sub-Inspector) is the I.O. of the case and has conducted the investigation in the case in hand. In absence of reliable evidence of PW-1 prosecutrix, the other evidence led by PW-2 Balkari Lal, PW-5 Constable Arjun Kumar, PW-7 Mool Raj, PW-10 Kapil Kant Khajuria and PW-12 Amar Chand by no stretch of imagination can link appellant/ convict with the commission of crime attributed to him. 11. On examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of appellant/convict beyond reasonable doubt. To our mind the truth and falsehood are so inextricable intertwined, that it is impossible to discern where one ends and the other begins. We are of the considered view that there is serious doubt regarding forcible sexual intercourse committed by appellant/accused upon the prosecutrix. The appellant/convict is entitled to the benefit of doubt, and we are of the view that the learned trial court of 3rd Additional Sessions Judge, Jammu (Fast Track Court) has erred in finding appellant/convict guilty. We set aside the conviction and the sentence of appellant and acquit him from the charges leveled against him. The appellant/convict who is presently lying in District Jail Amphalla, Jammuis directed to be released forthwith if not required in any other case. 12. We set aside the conviction and the sentence of appellant and acquit him from the charges leveled against him. The appellant/convict who is presently lying in District Jail Amphalla, Jammuis directed to be released forthwith if not required in any other case. 12. Appeal is, accordingly, allowed and disposed of. 13. Record of the trial Court be sent back forthwith along with copy of the judgment for information of the trial Court.