Rajasthan High Court - Jaipur
Dhokla Ram vs State Of Rajasthan on 10 May, 2001
Equivalent citations: 2001CRILJ3547
ORDER Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellant against the Judgment and order dated 24-1-2001 passed by the learned Additional Sessions Judge, Barmer by which he convicted the accused appellant for offence under Section 376, IPC and has sentenced accused appellant as under :
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Offence Sentence awarded -------------------------------------------- 376 IPC 7 years' R.I. and a fine of Rs. 5000/- in default to further undergo 1 year's R.I. -------------------------------------------- 2. This appeal arises in the following circumstances :
(i) On 8-6-99 at about 4-15 p.m. P.W. 1 Smt. Dhuri w/o Mota Ram (hereinafter referred to as the Prosecutrix lodged a written report Ex, P/1 in the Police Station Barmer Sadar before P.W. 12 Harji Ram stating that she was married about 2 years back with Mota Ram and she used to live in her in-laws' house, but on 5-6-99 she came to her father's house in village Rawatsar and since then she was living there. It is further stated in the report that on 7-6-99, at about 5 p.m. in the evening. When she went to the field for taking woods from her father's house and as soon as she reached the Gochar land and was collecting wood, the accused appellant came there and caught hold of her and put her on the ground and forcibly lifted her ghaghra and committed rape with her. Hearing her cry, Gama Ram, P.W. 4 and Chena Ram, P.W. 3 came there and seeing them, the accused appellant ran away.
(i) It is further stated in the report that when she put resistence, her ear-rings were also broken and fell down.
(ii) On this report, the Police chalked out FIR Ex. P/12 and started investigation.
(iv) During investigation, medical examination of P.W. 1 Smt. Dhuri was got conducted by P.W. 5 Dr. Suraj Prakash Vyas and the medical examination report is Ex. P/3 and for ascertaining her age, X-ray of elbow, pelvis and wrist were taken and the radiological report is Ex. P/4. The age of prosecutrix was assessed as between 16 to 18 years and the accused appellant was arrested on 13-6-99 through Fard Ex. P/8.
(x) After usual investigation, a challan was submitted against the accused appellant in the Court of Magistrate. Thereafter the case was committed to the Court of Sessions Judge from where the case was transferred to Court of Additional Sessions Judge, Barmer.
3. That the learned Additional Sessions Judge, Barmer framed charge against the accused appellanother offence under Section 376, IPC who pleaded not guilty and claimed trial.
4. During trial, 14 witnesses have been produced by the prosecution and thereafter statement of accused under Section 313, Cr.P.C. was recorded and two witnesses were produced in defence.
5. After the conclusion of the trial, the learned Additional Sessions Judge vide his Judgment and order dated 24-1-2001 convicted and sentenced the accused appellant for offence under Section 376, IPC as stated above.
6. Aggrieved from the said Judgment, this appeal has been filed by the accused appellant.
7. In this appeal, following submissions have been made on behalf of the accused appellant:
Looking to the fact that P. W. 1 Smt. Dhuri did not receive any injury and she was married lady and habitual to sexual intercourse and she knew the accused appellant earlier to the incident and, therefore, it is a case of consent and not a case of rape. Hence, the accused appellant should be acquitted.
8. On the convery, the learned P.P. has opposed the submissions made by the learned counsel for the appellants and submits that the Judgment and orders passed by the learned trial Judge do no call for interference.
9. I have heard both.
10. Before proceeding further, first medical evidence in respect of age as well as for rape should be discussed which is found in the statements of P.W. 5 Dr. Suraj Prakash Vyas and P.W. 6A Dr. A. K. Goyal. The medical examination report of P.W. 1 Smt. Dhuri is Ex. P/3 and the same has been proved by P.W. 5 Dr. Suraj Prakash Vyas.
11. On perusing this report, it appears that she (P.W. 1 Smt. Dhuri) did not receive any injury either on her private part or any other portion of her body. This fact has been admitted by P.W. 5 Dr. Suraj Prakash Vyas in his statement and he has further stated that vagina of P.W. 1 Smt. Dhuri admits two fingers easily. Thus, from the statement of P.W. 5 Dr. Suraj Prakash Vyas, it is well proved that P.W. 1 Smt. Dhuri did not receive any sort of injury on her body including her private parts.
12. So far as age of the prosecutrix is concerned, she has herself stated her age as 18 years when her statement was recorded in the Court on 21-9-99 and the incident took place on 7-6-99. Thus from this point of view, she was major and apart from this, P.W. 6A Dr. A.K. Goyal has clearly estimated her age between 16 to 18 years and thus from every point of view, it can be said that on the date of occurrence, P.W. 1 Smt. Dhuri was above the age of 16 years.
13. Now the statement of prosecutrix has to be examined. In the case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge. Unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
14. Apart from this, something should be said about the medical examination of the victim. If the victim is unwilling to yield to sexual intercourse, she is expected to receive some injuries on her person. Absence of injury on her person generally gives rise to an inference that she was consenting party to coitus. Absence of injuries on the prosecutrix or the accused shows that the prosecutrix did not resist. But absence of injuries is not by iitself sufficient to hold tha the prosecutrix was consenting party.
15. Thus, the point for consideration is whether the statement of P.W. 1 Smt. Dhuri in the present case On the point that the accused appellant committed rape with her is reliable one or not.
16. P.W. 1 Smt. Dhuri in her Court statement has stated that when she reached the field, accused appellant came there and after holding her hands, he fell on her and after lifting her Ghaghra, he committed rape with her and at that time, P.W. 3 Chena Ram and P.W. 4 Gama Ram also came there and thereafter the accused ran away and she has further stated that she narrated the whole incident to her mother P.W. 7 Smt. Nainu and report was lodged on the next date and in cross-examination, she has admitted the following facts :
(i) She knows the accused appellant since her childhood and before marriage she and accused appellant both used to go to the filed for taking wood.
(ii) The accused appellant committed sex with her for 1/2 hour. She has further admitted that she said in the statement which was recorded in the Court that the accused appellant committed sex with her for one hour.
(iii) P.W. 4 Gama Ram is her brother in relation and P.W. 3 Chena Ram is her uncle.
(iv) When accused appellant took her earrings from her ear, she did not receive any injury in ear.
17. The important witness is P.W. 3 Chena Ram whose name is found in the report Ex. P/l. This witness has been produced as eye-witness of the occurrence. This witness states that when he went there he saw that P.W. 1 Smt. Dhuri was lying on the ground and accused appellant was lying over P.W. 1 Smt. Dhuri and P.W. 1 Smt. Dhuri was having sex with him. Similar is the statement of P.W. 4 Gama Ram who is also an eye witness as per report Ex. P/1.
18. In my opinion, from the above evidence, it cannot be accepted that the accused appellant had sex with P.W. 1 Smt. Dhuri against her Will. On the contrary, it appears that it was a case of consent.
A. The fact that when P.W. 3 Chena Ram and P.W. 4 Gama Ram saw the accused appellant lying over P.W. 1 Smt. Dhuri clearly goes to establish that both were in compromising position and seeing P.W. 3 Chena Ram and P.W. 4 Gama Ram the accused appellant ran away.
B. The fact that accused appellant had sexwith P.W. 1 Smt. Dhuri continuously for 1/2 hour clearly suggests that it was a case of consent as in forcible intercourse, no question arises that this process would go for 1/2 hour.
C. The fact that P.W. 1 Smt. Dhuri did not receive any injury also goes to show that she did not resist and above factors clearly go to show that it was a case of tacit consent and when P.W. 3 Chena Ram and P.W. 4 Gama Ram came there suddenly, the accused appellant ran away. The absence of injury on the person of P.W. 1 Smt. Dhri and on the person of accused appellant is yet another factor to negative the allegation of rape and to show that the accused appellant has committed intercourse with the prosecutrix with her consent.
19. Thus, from every point of view, the present case is not a case of forcible intercourse by the accused appellant with P.W.I Smt. Dhuri, but it is a case of consent between the two. Hence statement of P.W. 1 Smt. Dhuri does not inspire confidence on the point that the accused appellant committed rape with her. Hence, the findings of learned Additional Sessions by which he convicted the accused appellant for offence under Section 376, IPC are liable to be set aside and the accused is entitled to acquittal for the charge under Section 376, IPC.
Thus, for the reasons mentioned above, the present appeal filed by the accused appellant Dhokla Ram is allowed and Judgment and order dated 24-1 -2001 passed by the learned Additional Sessions Judge Barmer in Sessions Case No. 32 /99 by which he convicted and sentenced the accused appellant for offence under Section 376, IPC are set aside and the accused appellant is acquitted of the charge for offence under Section 376, IPC framed against him. Since accused appellant Dhokla Ram is in jail, he be released forthwith if not required in any other case.