Rajasthan High Court - Jaipur
Sukhwant Singh vs State Of Rajasthan on 29 March, 2006
Equivalent citations: RLW2006(3)RAJ2005, 2006(3)WLC115
JUDGMENT K.C. Sharma, J.
1. This appeal by appellant Sukhwant Singh arises out of the judgment and order dated 24.9.1984 passed by the learned Additional Sessions Judge, Dholpur, by which the learned Judge has convicted him for offence Under Sections 366 and 376 IPC and sentenced him to undergo rigorous imprisonment for four years with a fine of Rs. 500/- under each count, in default thereof, to further under go six months simple imprisonment.
2. On 13.10.1979 at about 1.30 PM, two constables namely, PW 3 Muzaffar Husain and PW. 4 Gauri Shanker having seen a girl sitting in truck No. 1831 AAT coming from the side of Gwalior and while crossing chambal bridge, tried to make the truck stopped. However, the truck did not stop and the constables chased the truck. It stopped at Sagar-pada octroi post. On seeing these two constables, the girl sitting inside the truck raised an alarm. On being asked by the constables, the girl disclosed that she has been abducted and rapped. In the mean time appellant Sukhwant escaped. They handed over Imdadul Haq and Sobha to PW 2 Dwarka Prasad, head Constable, who in turn took the truck along with second driver accused Imdadul Haq and Sobha to Police Station, Kotwali, Dholpur where PW 1 Mst. Sobha Lodged FIR, with the following allegations:
3. While she was waiting for bus at Emaredi (Maharashtra), a truck driver asked her as to where she had to go. When she replied that she had to go to Kamaredi, the truck driver made her to sit at the front side. The truck driver did not stop the truck at her destination and proceeded ahead. She then alleged that both the truck drivers, by turn, committed rape on her against her will 2-3 times. On her raising hue and cry, the accused said that there was none to hear her cries. She then disclosed the names of truck drivers as Sukhwant Singh and Imadadul Haq and said that Sukhwant Singh had escaped.
4. On this report, the police registered a case for offence Under Sections 366 and 376 IPC vide FIR, Ex. P1 and proceeded with the investigation. Having completed entire formalities as to the investigation, the police submitted charge sheet against the accused in the court of learned Magistrate. Since the offence was exclusively tribal by the court of Sessions, the learned Magistrate committed the case to the court of Sessions for trial.
5. The learned Trial Court on the basis of evidence and material available on record framed charges against the accused. The accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 9 witnesses and got exhibited some documents. After the prosecution evidence was over, the accused were examined Under Section 313 Cr.P.C, In the explanation the appellant stated that he has falsely been involved in the case.
6. At the conclusion of trial, the learned trial court held the accused appellant guilty of the offence Under Sections 366 and 376 IPC and accordingly convicted and sentenced him in the manner stated herein above. Hence the present appeal against conviction.
7. I have heard learned Counsel for the accused appellant and the learned Public Prosecutor and gone through the evidence and material on record.
Having gone through the judgment under appeal, it appears that the trial court has recorded finding of guilt against the appellant on the basis of testimony of the prosecutrix having been found reliable and worthy of credence.
8. It is well settled that in the cases involving sexual assault, the court must deal with such cases with utmost sensitivity and should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of fatal nature, to throw out an otherwise reliable prosecution case. Similarly, it is also well settled that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principles of probabilities just as the testimony of any other witness. However, if the court of facts finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony.
9. In view of above settled position, the question that emerges for adjudication would be whether in the facts and circumstances of the case at hand and in the light of the evidence, ocular as well as documentary and on consideration of broader probabilities of the case, the testimony of the prosecutrix can be held to be reliable, trustworthy, credible and inspiring confidence so as to hold the appellant guilty for the offence of rape?
10. In the FIR. Ex. P1 dated 13.10.79, the prosecutrix has alleged that she is a resident of Nanded (Maharashtra). Her parents have expired long back and therefore, she resides with her sister Shanta w/o Shanker at Kamaredi. On the day of incident at about 10.00 AM while she was waiting for bus at Emaredi road and intending to go to her sister at Kamaredi, a truck driver asked her as to where she had to go. When she replied that she had to go to Kamaredi, the truck driver made her to sit at the front side and told that they will drop her at Kamaredi. The truck driver did not stop the truck at Kamaredi and proceeded ahead. She then alleged that both the truck drivers, by turn, committed rape on her against her will 2-3 times. On her raising hue and cry, the accused said that there was none to come forward to rescue. She then disclosed the names of truck drivers as Sukhwant Singh and Imadadul Haq and said that Sukhwant Singh has escaped. On 16.10.79 her statements under Section 164/* Cr.P.C. was recorded, wherein she deposed that about 7 days earlier she had to go to Kamaredi from Emaredi. While she was witing for a bus, a truck driver told her that he will drop her at Kamaredi. Thereupon she boarded in the truck. According to her Kamaredi was at a distance of 6 Kms from Emaredi. The truck driver did not stop the truck at Kamaredi. When she asked the driver to stop the truck, the driver replied that he will stop the truck ahead. Having left Kamaredi and after covering long distance, accused Imdadadul Haq first committed rape on her. She specifically deposed that co-accused first put off her cloths, made her to lay down and then committed rape. Thereafter, appellant committed rape on her. She made it clear that co-accused committed rape twice, while appellant committed rape thrice. Lastly, she deposed that when truck reached near Chambal, she raised an alarm on seeing the police personnels.
11. The prosecutrix was examined as PW 1. In her court statement she has completely resiled from what she has stated in the FIR and in her statement under Section 164 Cr.P.C. In her examination in Chief, the prosecutrix has stated that she unmarried and her parents are alive. Her elder sister's name is Vandana and she is still bechlor. Shanker has no relation whatsoever with her sister. She then deposed that she was residing with her parents at Nanded and that she never resided with any body at Kamaredi. According to her she was waiting for bus at Ema D.C. at 5.00 PM for going to Nanded. On being asked by the appellant, she stated that she has to go to Nanded. On assurance by the appellant that he will drop her at Nanded, she boarded in his truck. She admitted that she had lodged the report Ex. P1. After hearing the allegations contained in the FIR the prosecutrix admitted that she had lodged this very report. She also certified the statement (Ex. P. 2) under Section 164 Cr.P.C. given by her before the Magistrate and admitted that she had given the statement as mentioned in Ex. P. 2. In cross examination, the prosecutrix stated that it is wrongly mentioned in the FIR that her sister resides at Kamaredi. She further stated that truth is that her sister is not residing at Kamaredi. She then stated that she has not seen Kamaredi and that she was not serving there. Her parents are alive and she has been residing with them. She stayed at bus stand for two hours. She then stated that she had gone to her friend Shakuntala who has not yet married. According to her Ema D.C. is a village where her Friend resides. As regards manner in which she was ravished, the prosecutrix stated that the accused did the sexual act in the same manner in which her husband used to do. On being confronted with her statement Ex. P. 2, she stated that she did not disclosed that she is married. In the later part of her cross examination, she stated that she was subjected to sexual intercourse for the first time on the relevant night. Lastly, on a suggestion being given, she denied that Suraj is her husband and there is a child out of that wedlock.
12. From what has been stated above, it is evident that prosecutrix has contradicted herself on material particulars which are of vital importance. Firstly, in the first information report the prosecutrix has alleged that her parents have died, whereas in her court statement she has specifically deposed that they are still alive. Secondly she alleged in the FIR as well as in her statement under Section 164 Cr.P.C. that on the relevant day she was waiting for bus to go to Kamaredi, whereas in her court statement she has deposed that she had to go to Naned (maharashtra). Thirdly, in her statement under Section 164 Cr.P.C. she stated that she is a married lady and that her husband's name is Shanker, whereas in her court statement she deposed that she is still bechlor. Even at the time of her medical examination she disclosed that she was married two years back and gave birth to a premature baby a year back. Fourthly, having denied the fact of she being a married lady, she has stated that she was subjected to sexual intercourse in the same manner in which she was being subjected by her husband. Fifthly, she has alleged in the report that she was an employee at Emaredi. However, she has denied this fact in her court statement. Sixthly, it was alleged in the report that she was residing with her sister at Kamaredi, but in the court statement she categorically deposed that none of her sisters resides at Kamaredy and that she had gone there to meet her friend.
13. In this view of the matter, the testimony of the prosecutrix cannot at all be said to be reliable, trust-worthy or worthy of credence so as to place reliance. Her testimony does not inspire any confidence and, therefore, it is too difficult for me to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her. It must, therefore, be concluded that the prosecutrix in the case is one on whose testimony no reliance can be placed and I find it highly difficult to accept the version of the victim on its face value. That apart, there is no evidence either direct or circumstantial which could lend assurance to her testimony. The conduct of the prosecutrix clearly reveals that she had gone voluntarily with the accused appellant. Thus, keeping in view the report Ex. P. 10 which mentions that there were no signs of recent inter-course, it must be held that culpability of the appellant does not stand established and the trial Court was not justified in recording conviction Under Section 376 IPC against the appellant and he deserves to be acquitted of this charge.
14. Coming to the conviction of the appellant Under Section 366 IPC, it has to be seen whether the prosecutrix was compelled by force or induced by any deceitful means to go from one place to another with the intention specified in Section 366 IPC and then was subjected to intercourse against her will. Therefore, to establish charge Under Section 366 IPC there should be acceptable evidence to show that the girl was compelled to marry the accused appellant against her will and/or was forced to or induced to intercourse against her will. The prosecution, therefore, was obliged to prove on the basis of evidence that there was some such undue force on the prosecutrix either to marry the accused appellant or to have intercourse with him. Testing the case at hand on this settled position, I am of the considered view that the prosecution has failed to prove beyond doubt that there was undue force on the prosecutrix either to marry the accused or to have intercourse with him. The conduct of the prosecutrix clearly reveals that she voluntarily boarded in the truck at her own accord, of which appellant was driver and had also paid Rs. 6/- as against fare. Evidently thus, she planned her departure from Kamaredi and had willingly gone away with the accused appellant in his truck, which further indicates that there was no threat or inducement either in regard to her leaving the place or in regarding to accompanying the accused appellant and under taking long journey. In this view of the matter, the conviction of accused appellant Under Section 366 IPC also cannot be sustained and is liable to be set aside.
15. In the result, this appeal succeeds and is hereby allowed. The conviction of appellant Sukhwant Singh for offence Under Sections 376 and 366 IPC and the sentences awarded thereunder is set aside and he is acquitted of the charges. The appellant is already on bail. He need not surender to his bail bonds, which are hereby discharged.