Rajasthan High Court - Jaipur
Pappu And Balwant vs State Of Rajasthan on 25 August, 1999
Equivalent citations: 2000CRILJ1256
JUDGMENT G.L. Gupta, J.
1. Through this appeal Under Section 374(2), Cr.P.C, appellant Pappu calls in question the judgment of the learned Special Judge (Prevention of Atrocities on Women) Sri Ganganagar dt. 16-1-98, whereby he was convicted Under Section 376, IPC and sentenced to 7 years R.I. and a fine of Rs. 500/-, in default two months S.I.
2. The facts giving rise to this appeal are these. The incident is of dt. 16-8-92. At about 1.30 p.m. "S" (P.W. 1), 13 years, was in the field of her uncle Om Prakash for cutting grass. While she was doing her work, it is alleged, the accused went there, caught hold of her flung her on the ground and committed rape on her at pistol point. Om Prakash, (P.W. 3) happened to reach there and on his call the accused ran away from the scene of occurrence. The first information report of the occurrence was lodged by Kalu Ram, father of "S" on 17-8-92 at 7 p.m. on which a case Under Section 376, IPC was registered. During investigation the police got "S" medically examined, inspected the site and interrogated the witnesses. After the completion of the investigation a challan was filed.
3-4. The learned Special Judge cum Additional Sessions Judge framed a charge Under Section 376, IPC to which the accused pleaded not guilty. The prosecution examined P.W. 1 "S", P.W. 2 Kalu Ram, P.W. 3 Om Prakash, P.W. 4. Dr. Rajendrakumar Gupta, P.W. 5 Jivraj Singh, P.W. 6 Chetram, P.W. 7 Narpat Singh and P.W. 8 Dr. Om Prakash Sharma. The accused in his statement Under Section 313, Cr.P.C. denied accusation. He did not examine any witness in defence. The learned Judge of the trial Court after hearing the arguments of the counsel for the parties held that the charge against the accused was fully established. He, therefore, convicted and sentenced him as stated above.
5. Mr. Joshi learned counsel for the appellant contended that the F.I.R. was lodged more than 24 hrs. after the occurrence and this delay shows that no occurrence had taken place. His further contended was that the medical evidence does not corroborate the testimony of "S". He also contended that looking to the age of the prosecutrix, it might be a case of consent. He also pointed out that the link evidence of sending the clothes to F.S.L. has not been produced. Relying on the case of Bherun Lal v. State of Raj, 1995 Cr LR (Raj) 371, he contended that the accused should be acquitted.
6. Learned P.P., on the other hand, supported the judgment of the trial Court.
7. I have considered the rival contentions of the learned counsel for the parties. P.W. 1 "S" deposes that at about 1.30 p.m. when she was cutting grass, the accused went there, flung her on the ground and after removing his clothes committed rape on her. She also says that the accused who was having a pistol in his hand had told him that if she made a noise he would kill her. She then says that as her uncle Om Prakash reached the place of occurrence, the accused ran away.
8. There is nothing in the cross-examination of "S" as to disbelieve her. She was about 14 years of age. There could not be any cause for her to level false accusation against the accused. A suggestion put in her cross-examination that her parents wanted to take revenge from the accused has been emphatically denied by "S" Kalu Ram, (P.W. 2) also emphatically denies that he was having enmity with the father of the accused and he has brought false accusation against him at the instance of Har Chand, Ex. M.L.A. The accused has not led any evidence in support of his plea that there was enmity between his father and Kalu Ram or that Har Chand, Ex. M.L.A. was interested in getting him involved in a false case. That being so, it has to be held that there was no cause for "S" or her father to bring a false case and that too of rape allegation against the accused.
9. It cannot be believed that a father would expose his unmarried daughter by making false allegation against the accused. A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident, which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors, the crime is brought to light there is built-in assurance that the charge is genuine rather than fabricated : Vide Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : 1983 Cri LJ 1096.
10. The testimony of "S" cannot be disbelieved on the contention that the Medical 'Officer did not find any injury on her private parts and the hymen was not found ruptured. The non-rupture of hymen or absence of injury on victim's private parts does not necessarily belie the version of rape. In the recent case of Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635, their Lordships have observed as follows :-
Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
It is significant to point out that in that case, the opinion of the doctor, that rape did appear to have been committed, was not accepted by their lordships in preference to the evidence of the prosecutrix. In the instant case, the Medical Officer does not state that rape was not committed, rather, he deposes that the possibility of sexual intercourse was not ruled out. That being so, on the ground that the hymen was found intact and the injuries were not found on the private parts of the prosecutrix, the prosecution case cannot be doubted. The case of Bherun Lal, 1995 Cri LR (Raj) 371 (supra) cannot help the appellant.
11. Since the rape was committed at the pistol point, there was no possibility of resistance by the prosecutrix and that is why she did not sustain injuries on the other parts of the body, except a bruise on her nose.
12. The contention of Mr. Joshi that the girl was accustomed to sexual intercourse does not absolve the accused of the charge under Section 376 IPC. The age of the prosecutrix according to her father was about 13 years. The Medical Officer fixes her age some-where between 14-15 years. It is true that the Medical Officer in cross-examination admits that there could be difference of 2 years in the estimation of age but that would not prove that the prosecutrix was more than 16 years of age at the time of occurrence. When the Medical Officer on the basis of skygram examination has estimated the age of the prosecutrix between 14 to 15 years, it means that he had taken the possible error factor into consideration. The theory of consent cannot be accepted.
13. The delay in lodging the F.I.R. has been properly explained by the prosecution. The father of the prosecutrix approached the Panchayat and the Panchayat after holding the meeting advised him to approach the police. In such matters, the delay in lodging the F.I.R. cannot be fatal. The question of family prestige and honour is involved and some time is bound to be taken in considering as to how and what action should be taken against the accused.
14. As to the contention that the link evidence of keeping the Malkhana articles intact has not been produced, it may be stated that P.W. 7 Narpat Singh deposes that he had sealed the clothes of the prosecutrix at the spot. The report of the F.S.L. Ex. P-14 shows that human semen was detected on the 'Salwar' of the prosecutrix. The report shows that articles when received were duly sealed. There is no cause to doubt the correctness of the report.
15. Even if we ignore the evidence of F.S.L. there is enough material on record to hold that the accused had committed rape on "S". The conviction of the appellant is thus well merited. The sentence awarded cannot be said to be excessive.
16. There is no merit in this appeal which is hereby dismissed.