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Jammu & Kashmir High Court

Hem Raj Alias Hemu vs Hem Raj Alias Hemu And Others (For Short on 12 August, 2009

Author: Mansoor Ahmad Mir

Bench: Mansoor Ahmad Mir

       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Appeal No.11-A OF 2002  
Hem Raj alias Hemu  
Petitioners
State of J&K
Respondent  
!Mr. J. P. Sharma, Adv
^Mr. S. C. Gupta, AAG. 

Hon'ble Mr. Justice Mansoor Ahmad Mir  
Date: 12/08/2009 
:J U D G M E N T :

This criminal appeal is directed against the judgment and order dated 12.6.2002 and 13.6.2002 passed by the learned Sessions Judge, Udhampur in File No.35/Session, titled, State vs Hem Raj alias Hemu and others (for short, impugned orders), whereby and whereunder the appellant came to be convicted and sentenced for the commission of offence punishable under Section 376 Ranbir Penal Code (for short, RPC).

Brief facts of the case 2 One Mst. Pushpa DeviB-prosecutrix lodged a report on 8.3.1999 at about 15:30 (3:30 pm) in Police Station Udhampur with the allegation that on 5.3.1999 at about 8:30 pm she was in her house with her son and two daughters, three persons, namely, Hem RajB-appellant herein, Mukhtyar Singh and third person, name not known, asked her whether she was having eggs, she replied in negative. They asked her where her husband was and she replied that he was out of station. Thereafter, they asked for a chicken, she replied in negative. At that time she was preparing meal in the kitchen. All the three persons entered into her house with criminal intention, appellantB-Hem Raj caught hold of her, laid her on the floor of the room and raped her. The other two persons broke the box and took away Rs.1500/B-. Thereafter all the three persons ran away. On her hue and cry, one Amar Nath came on spot. Her husband returned on 6.3.1999 and she narrated the entire story to him on the same day. 7th March 1999 was a holiday and on 8.3.1999 she lodged a report in the Police Station. During investigation the investigating officer recorded the statements of witnesses, effected seizures and obtained the opinion of medical 3 expert/FSL opinion. The investigating officer came to the conclusion that only appellantB-Hem Raj and Mukhtyar Singh were involved in the commission of offences, whereas nothing was collected against the third person. Further, the investigating officer came to the conclusion that Mukhtyar Singh and the third person had not taken away Rs.1500/B- after breaking the box, but only Mukhtyar Singh had made an attempt to break the box and to take away the said amount. The appellant and Mukhtyar Singh came to be arrested. The final report came to be presented before the Chief Judicial Magistrate, Udhampur, who committed the case to the Court of learned Sessions Judge, UdhampurB-trial court. The appellantB-accused No.1 came to be charge sheeted for the offence punishable under Sections 376 and 458 RPC and Mukhtyar SinghB- accused No.2 came to be charge sheeted for the commission of offences punishable under Sections 380, 458 and 511 RPC. The accused pleaded not guilty and claimed to be tried. The prosecution examined 10 witnesses out of 13 cited in the witness calendar. The prosecution failed to examine PWs 9, 10 and 13. The trial court vide judgment and order dated 12.6.2002 convicted the appellantB-

accused No.1 for the commission of offence punishable under Section 376 RPC and acquitted him for the commission of offence punishable under Section 458 RPC and also acquitted Mukhtyar SinghB-accused No.2. Thereafter, the trial court heard the appellant and prosecution on the question of punishment and awarded sentence against the appellant vide order dated 13.6.2002.

Before arriving at a just conclusion, it is proper to give brief resume of the prosecution witnesses herein:

PW1 Pushpa Devi has stated that on the date of occurrence she was preparing the meal and her children were present in the house, whereas her husband was not there. She came out to fetch water and found accusedB-Hem Raj, Mukhtyar Singh and a third person, name not known, present in the compound. AccusedB-Hem Raj asked for a chicken, but she told him that she did not have any. Then accusedB-Hem Raj caught hold of her and took her inside the house. The other accused caught her from behind. All the accused laid her in the room, accusedB-Hem Raj opened and put off her trouser (salwar) and forcibly raped her. She tried to get rid of and save herself, but Hem Raj did not allow her to do so and raped her 5 twice. The second accused did not commit any rape on her and the third person stole away Rs.1500/B- and silver ear rings belonging to her. She made hue and cry, one Amar Nath, brother of her husband, armed with danda came on spot and the accused ran away. On the next day she reported the matter to the Numberdar and on the third day she lodged a report in the police station. She has admitted the contents of FIR, Parcha illat and seizure relating to Salwar as true and correct and came to be exhibited as EXPWPD, EXPWPD1 and EXPWPD2 respectively.

PW2B-Lal Chand is the husband of prosecutrix. He has deposed that he was not present on the spot when the alleged occurrence took place.

PW3B-Amar Nath has deposed that Pushpa Devi is the wife of his younger brother Lal Chand. On the date of occurrence he heard noise at about 8 pm. He went there and found Hem Raj and Pushpa Devi in the house of Lal Chand, Pushpa Devi was weeping. When he opened the door it was pitch dark and accusedB-Hem Raj came out of the room. On inquiry Pushpa Devi told him that accused Hem Raj forcibly committed sexual intercourse with her.

He had only seen accusedB-Hem Raj in the said house and none else, Pushpa Devi was sitting on the cot and thereafter he returned back to his home.

In crossB-examination he has stated that the house of accused is located just three "zaribs"/three meters away from the house of Pushpa Devi and his house is not adjacent to the house of Pushpa Devi, but houses of 'Premu' and sister of prosecutrix are adjacent to the house of Pushpa Devi. Her sister did not come on spot. Lal Chand is dealing with liquor and father of accusedB-Hem Raj had lodged a report against Lal Chand about the trade of illicit liquor.

PW4B-Om Parkash is the witness to the seizure of Salwar, EXPWPD2.

PW5B-Smt. Hroli, PW6B-Mst. Dewanu, PW7B-Mst. Koshalya Devi and PW8B-Smt. Shellu are not the witness to the occurrence.

PW9B-Dr. Uma Sharma has deposed that the prosecutrix was brought before her on 8.3.2009, whereas occurrence had taken place on 5.3.1999. She being a married woman, it was not possible for her to frame a definite opinion regarding rape. On cross 7 examination she stated that she had not seen the presence of spermatozoa in vaginal smear.

PW10B-Jagdish Singh is the investigating officer, who has recorded the statements of witnesses and prepared the site plan PXPWJS. He has also seized one lock, a latchB-EXPWAN and SalwarB-EXPWPD2.

In crossB-examination he has stated that the occurrence had taken place on 5.3.1999, he visited the spot on 14.3.1999 and arrested the accused on 16.7.1999. The complainant had found the alleged stolen articles in her trunk on the next day.

The trial court acquitted the accused Mukhtyar Singh and also acquitted the appellant for the offence punishable under Section 458 RPC, but only convicted him for the commission of offence punishable under Section 376 RPC on the solitary statement of the prosecutrix.

Dr. Hale C. J. of Australia, said, "Rape is an accusation easily to be made and hard to be proved and harder to be defended by the party concerned, though never so innocent."

Keeping in mind the observations supra and the ratio of Apex Court judgments, it is beaten law of the land that conviction can be based on the solitary statement of the prosecutrix provided it is truthful and inspires confidence.

In the judgment titled as Ghulam Mohammad Pahalwan vs State, reported in SLJ 1983, J&K, PB-175 held that, once the Court is satisfied that the version given by the prosecutrix is trustworthy, free of blemish and find support from medical evidence the court need for no other corroboration to record conviction.

Apex Court in the case titled State of Karnataka vs Mapilla P. P. Soopi, reported in AIR 2004, SC 85, held that corroboration is required when statement given by the prosecutrix does not inspire confidence and appears not to be free of blemish.

The Apex Court in the case titled Aman Kumar and another vs State of Haryana, reported in AIR 2004, SC 1497, held that prosecutrix complaining of having been a victim of the rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material 9 particulars. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony.

Keeping in view the entire history of the case right from the lodging of FIR till the prosecutrix appeared before the Court, it appears that she has changed her statement in material particulars. The prosecutrix case is shrouded in doubts for the following reasons:

i. In the FIR the prosecutrix has alleged that accusedB-Hem Raj, Mukhtyar Singh and third accused, name not known to her, entered into her house at 8:30 pm when she was cooking food for her children in the kitchen. They asked about the eggs and chicken, she stated that she did not have any.

Thereafter they enquired about her husband, caught hold of her, accusedB-Hem Raj laid her on the floor of the room and forcibly committed sexual intercourse, thereby committed rape upon her. The other two accused broke the lock of the box and stole away Rs.1500/B-, on her hue and cry, brother of 10 her husband, namely, Amar Nath came on spot and the accused ran away. The investigating officer, however, found that the allegations against accused No.3, whose name is not known, were not correct. He also found that the accused had not stolen away the currency notes, but only Mukhtyar SinghB-accused No.2 had made an attempt. However, when the prosecutrix appeared before the Court, she made a different story by deposing that she was preparing meal for her children, came out of her house for fetching water and found all the three accused in the compound. They asked her about the eggs and chicken, she replied that she did not have any and, thereafter, they made an inquiry about her husband, she replied that he was not present in the house. Thereafter AccusedB-Hem Raj caught hold of her, the other accused helped him and laid her on the floor of the room and accusedB-Hem Raj committed rape on her and the other two accused stole away Rs.1500/B- and silver ear rings belonging to her after breaking open the lock of the box.

ii. She has also deposed that when she made hue and cry, the neighbours and Amar Nath came on spot and on noticing him the accused ran away. But Amar Nath has stated that he heard noise at 8 pm and rushed to the house of his brother. He opened the door and found accusedB-Hem Raj and prosecutrix in the house and prosecutrix was weeping on the cot.

Amar Nath has specifically stated that when he entered her house, he did not see any other person in the house. iii. The prosecutrix has specifically stated before the Court that the other two accused had stolen away Rs.1500/B- and silver ear rings. She has no where stated in the FIR that accused have also stolen the silver ear rings. This she deposed for the first time before the trial court. The investigating officer during investigation found that accusedB-Mukhtyar Singh had not stolen away Rs.1500/B-, but he has stated that an attempt was made by accusedB-Mukhtyar Singh. He has categorically stated that no evidence had come forth against the third accused. The investigating officer while deposing before the 12 Court has stated that the prosecutrix found the stolen articles in the room on the next day of alleged occurrence, whereas the prosecutrix has deposed in the Court that accused Nos.2 & 3 have stolen the said articles after breaking open the lock of the box. The prosecutrix has stated in the FIR as also deposed before the Court that she narrated the whole incident to the Numberdar. Why the Numberdar has not been examined, is not explained by the prosecution. If she reported the matter to the Numberdar on the next day of alleged occurrence, why she did not make the report to the police on the very same day, which is only 20 kms away from her house as per EXPWPD1. Further, why Amar Nath did not lodge report on the same day, instead of going back to his home and why on the next day he had not reported the matter to the police or taken any action, which a prudent man would do after hearing/noticing that some person had raped his relative.

iv. The prosecutrix has specifically stated in the FIR and before the Court that his son and two daughters were present in the 13 house at the time of alleged occurrence. Why their statements were not recorded during investigation and why they were not produced before the Court is also not forthcoming from the record and has also not been explained by the prosecution.

v. Who closed the door is also not explained by the prosecution. If the accused would have closed the door, the children of prosecutrix would have definitely made hue and cry. Amar Nath has only found the accusedB-Hem Raj in the house. She has stated that she was laid on the floor of the room, then how she was sitting on the cot, as stated by Amar Nath when he entered the room on hearing the noise, is not forthcoming from the record. He nowhere has stated that he had seen accusedB-Hem Raj committing the sexual intercourse with the prosecutrix when he opened the door. He has nowhere stated that the prosecutrix was not wearing the salwar at that particular point of time. In the given circumstances it cannot be ruled out that it is not a case of 'consent'.

vi. The prosecution has failed to explain the three days delay.

The medical report is also not in favour of prosecution. Dr. Uma Sharma has nowhere stated that she found any injury on any part of the body of prosecutrix not to speak of private parts. If at all the prosecutrix would have made an attempt to save herself or would have resisted, then definitely there would have been some bruises/scratches/injury marks on any part of her body, when the prosecutrix has specifically stated that the accused opened and put off her salwar and forcibly committed rape on the floor of the room.

vii. The evidence also discloses that the father of appellantB-

accused had lodged a report against the husband of the prosecutrix about the trade of illicit liquor. It can also be not ruled out that the case is not the outcome of rivalry. Apex Court in the case titled Davinder Singh and others vs State of Himachal Pradesh, reported in AIR 2003 SC 3365, held that when there is delay in lodging FIR coupled with the fact that there are inconsistencies in the statement of the prosecutrix, it is not safe to base conviction on the testimony of prosecutrix.

Hon'ble High Court of Orissa in the case titled Sanya alias Sanyasi Challan Seth vs State of Orissa, reported in Cr. L. J. 1993, Page 2784, on similar facts dismissed the prosecutrix case and acquitted the accused.

It is apt to reproduce paraB-2 of the judgment delivered by the Apex Court in case titled State of Andhra Pradesh vs Lankapalli Venkateshwarlu, reported in AIR 2000 SC 3555, hereunder:

"We have perused the evidence recorded by the trial Court with the assistance of learned counsel for the parties. Not only has the prosecutrix given to goB-bye to the version, in material particulars, as recorded in the FIR in her evidence recorded in Court, but, even the medical evidence recorded by the Doctor - P.W. 12 does not at all support the allegations made by the prosecutrix.

In the given circumstances, the conviction cannot be made basis on the solitary statement of the prosecutrix without corroboration. The trial court has fallen in error while holding that without corroboration, the conviction can be made on the solitary statement of the prosecutrix.

Viewed thus, the appeal is allowed, impugned judgment and order of conviction and sentence are set aside and the case of prosecution is dismissed. The accused is, accordingly, acquitted.

(Mansoor Ahmad Mir) Jammu Judge Dated:12.8.2009 (Anil)