Rajasthan High Court - Jaipur
Banna Lal vs State Of Rajasthan on 26 September, 2001
Equivalent citations: RLW2003(1)RAJ556, 2002(4)WLN260
JUDGMENT Garg, J.
1. This appeal has been preferred by the accused appellant against the judgment and order dated 19,7.2001 passed by learned Additional Sessions Judge No. 2, Bhilwara in Criminal Case No. 37/2000 by which he while acquitting the accused appellant for offence under Section 363 and 366 IPC convicted the accused appellant for offence under Sections 376 IPC and sentenced him as under:
Offence Sentence awarded 376 IPC 10 years' RI and a fine of Rs. 1000/- in default to further undergo 3months' SI.
2. This appeal arises in the following circumstances:
(i) On 15.7.99, P.W.1 Prem Singh lodged a written report Ex.P/1 with the police Station Jahajpur stating that on 9.7.99, her daughter P.W.6 Nandu (hereinafter referred to as the prosecutrix) aged 12 to 13 years was enticed and kidnapped by the accused appellant against her will. On 15.78.99 he came to know that the accused appellant had taken P.W. 6 Nandu somewhere, therefore, he lodged this report.
3. That on this report, police chalked out regular FIR Ex.P/2 and started investigation and during investigation, P.W.6 Mst.Nandu was got recovered from Jaipur on 11.10.99 from one house at Murlipura through Fard Ex.P/4. P.W.6 Mst. Nandu was got medically examined by P.W.8 Dr.Uttam Prakash for the purpose of determination of her clinical as well as radiological age, x-rays of her elbow and knee joint were taken. Her Age certificate is Ex.P/7 which shows that her age was near about 16 to 17 years and the bony age of the prosecutrix was also got medically examined by P.W.7 Dr.Kavita for the purpose of ascertaining whether rape was committed with her or not and that report is Ex.P/8 which shows that P.W.6 Nandu was habitual to sexual intercourse.
4. After usual investigation, challan for offence under Sections 363, 366 and 376 IPC was filed against the accused appellant.
5. On 23.12.99 the learned trial Judge framed charges for offence Under Sections 376, 363 & 366 IPC against the accused appellant who pleaded not guilty and claimed trial.
6. During trial, 14 witnesses have been produced by the prosecution and thereafter statement of accused appellant under Section 313 Cr.P.C. was recorded and no evidence was led in defence by the accused.
7. At the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 19.7.2001 while acquitting accused appellant for offence under Sections 363 and 366 IPC convicted and sentenced the accused appellant for offence under Section 376 IPC inter alia holding that:
(i) On the date of occurrence P.W.6 Nandu was above the age of 18 years, therefore, no offence under Sections 363 and 366 IPC was found proved.
(ii) Even the offence of rape at Jaipur was not found proved by the learned Additional Sessions Judge as per the findings of the learned additional Sessions Judge, she was consenting party at Jaipur, but when she had first sex with the accused appellant in Jungle, for that incident the learned Additional Sessions Judge came to the conclusion that she was raped by the accused appellant and thus he convicted the accused appellant for offence under Section 376 IPC.
8. Aggrieved from the said judgment, this appeal has been filed by the accused appellant.
9. In this appeal, the following submission has been made by the learned counsel for the appellant:
when the learned Additional Sessions had disbelieved the major part of the statement of prosecutrix that she was not kidnapped or abducted against her will and even at Jaipur she was living with the accused appellant with her own will and, therefore, the findings of learned Additional Sessions Judge that she was raped in the very beginning are erroneous one and should be set aside and appeal of the accused appellant should be allowed and he should be acquitted.
10. On the other hand, the learned PP has opposed the submission made by the learned counsel for the appellant and submits that the judgment of the trial Court is based on correct appreciation of evidence and the same does not require interference by this Court.
11. I have heard both and perused the record of the case.
12. To appreciate the above contention, first medical evidence in this case has to be seen.
13. In the cases of kidnapping and rape, the age of the prosecutrix is very material.
14. In the present case as per the findings of learned Additional Sessions Judge, the prosecutrix was above the age of 18 years on the date of occurrence and these findings are based on medical and other evidence.
15. The prosecutrix was not medically examined by P.W.7 Dr.Kavita for ascertaining whether rape was committed with her or not and she has given report Ex.P/8 which shows that no injury was found on her person and she was habitual to sexual intercourse.
Burden of Proof in Rape Cases
16. In a 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 the 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,
17. 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 personal 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 itself sufficient to hold that the prosecutrix was consenting party.
18. There is also no dispute on the point that corroboration of testimony of the prosecutrix in a rape case is not required as a rule of law. But corroboration should ordinarily be required in a case where woman has attained majority and who is habitual to sexual intercourse as in such cases, there is likelihood of her having levelled such accusation on account of self-preservation.
19. In view of the above, statements of P.W.6 Nandu and other witnesses have to be examined.
20. P.W. 1 Prem Singh who is father of the prosecutrix has admitted that P.W.6 Nandu came after 1 and 1/2 months from the date she had gone with the accused appellant.
21. P.W.4 Smt. Kailashi who is aunt of P.W.6 Nandu has admitted that accused appellant belongs to her caste and before this incident P.W.6 Nandu and accused appellant used to meet and both used to love each other.
22. P.W.6 Nandu who is prosecutrix states that she used to go to graze goats in the jungle and the accused appellant also used to graze his goats in the jungle where he committed rape with her against her will and thereafter this process continued for some time in the jungle and after that incident she had gone with her to Jaipur and she remained at Jaipur for one month.
23. In my considered opinion the findings of learned Additional Sessions Judge that in Jungle she was raped forcibly against her will are erroneous one and cannot be accepted for the simple reason that act of sexual intercourse with the prosecutrix appellant in jungle took place not once, but it remained continued for some time and thereafter the prosecutrix P.W.6 Nandu went with the accused appellant to Jaipur and where they lived for near about one month. In these circumstances, the fact of consent is very much there right from the beginning to the end. So far as initial incident of sexual intercourse is concerned, P.W.6 Nandu states that she was forcibly raped by the accused appellant. This fact does not appear to be natural and probable. Had that incident would have taken place against her will she would have narrated the whole incident to her parents after that incident ant even she could have cried in the jungle, but nothing sort of things have happened in this case and her explanation that she was given threats by the accused appellant and that is why she did not make any complaint to anybody does not appear to be reasonable. Therefore, no reliance can be placed on the testimony of P.W.6 Nandu that in Jungle she was raped by the accused appellant forcibly against her will and she was not consenting party. Hence, it is held that even the incident that took place in Jungle by which she had sex With accused appellant, was with her tacit consent.
24. Hence, findings of learned Additional Sessions Judge by which he convicted the accused appellant for offence under Section 376 IPC are liable to be set aside and his appeal is liable to be allowed and the accused appellant is liable to be acquitted for offence under Section 376 IPC.
25. For the reasons mentioned above, the present appeal filed by he accused appellant Banna Lal is allowed and judgment and order dated 19.7.2001 passedbythe learned Additional Sessions Judge No. 2, Bhilwara 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.
26. Since accused appellant is in jail, he be released forthwith if not wanted in any other case.