Rajasthan High Court - Jaipur
Sohan Singh And Anr. vs State Of Rajasthan on 12 September, 2002
Equivalent citations: 2003(1)WLC596, 2003(2)WLN551
Author: N.P. Gupta
Bench: Bhagwati Prasad, N.P. Gupta
JUDGMENT N.P. Gupta, J.
1. The two appellants Sohan Singh and Kalyan Singh have been convicted by the learned Special Judge S.C./S.T. (Prevention of Atrocities) cum Addl. Sessions Judge, Bikaner by the impugned judgment dt. 13.7.99 passed in Sessions Case No. 20/95, for the offence under Section 457 and 376, IPC read with Section 3(2)(v) of the the S.C./S.T. (Prevention of Atrocities) Act, 1989, (hereinafter to be referred as 'the Act') and has been sentenced to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine to undergo six months S.I. under Section 376, IPC, for the offence under Section 457, IPC with a sentence of four years R.I., and a fine of Rs. 500/-, in default of payment of fine to undergo further Simple Imprisonment for a period of 3 months.
2. Facts of the case are that on 21.2.1995, one Smt. Genu Devi lodged a report at Police Station Gajner alleging inter alia that in village Hadla Bhatiyan she along with her husband lives separately from her father-in-law. On 19.2.1995 husband had gone to Nokha for some domestic work, and she along with two children Bhanwara Ram aged 4 years, and Manju aged 1 year respectively, had slept in the 'Sal' after taking diner. It was alleged that the entrance of 'Sal' did not have any door. At about 11-11.30 in the night one match stick was ignited in the 'Sal' whereupon she woke up, and saw the two appellants being there, whereupon she raised cry, and then Kalyan Singh gagged her mouth with one hand, and make her to fell down by holding another hand, then, Sohan Singh committed rape on her. Thereafter Sohan Singh gagged her mouth, and Kalyan Singh committed rape on her. After completing the act, when she was released, she raised cry, whereupon the two accused threatened, by calling her in the name of her caste (Dhedhni), to the effect that if she shouts she would be shot dead. She was also commanded to remain there, as they propose to bring some more people. With this two accused went away. It was alleged that the prosecutrix, in nude condition, went weeping to her uncle-in-law Puran Ram's house, where his wife Bhanwari Devi provided her garments, then Puran Ram and his son Madan Lal, and neighbours of locality also arrived, and to them she narrated whole incident. Hastu Devi had seen two accused going away from her house. In the morning Puran Ram brought Bhera Ram (father-in-law of the prosecutrix),from his field, then her another uncle-in-law Hukma Ram, who was serving at Ganganagar was sent for on telephone. Thereafter she kept on waiting for her uncle-in-law, and her husband to arrive, but since they did not come she came to the police station along with Bhera Ram, and lodged a report. On this report a case under Section 376 & 34, IPC and Section 3(10). The act was registered.
2. After usual investigation, the challan was filed against the appellants significantly for the offence under Sections 354 and 457 IPC and Section 3(10) of the Act. Since the offence under the Act was exclusively triable by the Special Court, the learned Magistrate vide order dt. 5.5.1995 committed the case to the Special Court.
3. The learned trial Court vide order dt. 4.7.1995 framed the aforesaid charges against the two appellants, which were denied by the accused, and they claimed trial. During trial, after recording the statements of P.W.1 Puran Ram, Hastu Devi as P.W. 2, Genu Devi as P.W. 3, and Bhanwari Devi as P.W. 4, at that stage the prosecution moved an application under Section 216, CrPC, and requested for framing a further charge for the offence under Section 376, IPC, and Section 3(2)(v) of the the Act. Vide order dt. 3.10.1996 this application was decided, and charge was amended, so as to add charge under Section 376 and Section 3(2)(v) of the the Act.
4. Since the charges were amended trial was ordered to be held de novo and the witnesses, P.W.1 Puran Ram, P.W. 2 Hastu Devi, P.W. 3 Smt. Genu Devi, P.W. 4 Bhanwari Devi who had been examined earlier were again examined afresh.
5. During de novo trial prosecution examined in all 10 witnesses, and tendered in evidence six documents. The accused persons in their statement under Section 313, CrPC adopted the stand of denial, and took a stand that they have been falsely implicated on account of factionalism. The defence tendered in evidence six documents. The learned trial Court after so completing trial convicted and sentenced the appellant as above.
6. Assailing the impugned judgment it is contended by the learned counsel for the appellants that the learned trial Court was in error in convicting the appellants for the aforesaid offences. Assailing the conviction under Section 3(2)(v), it was contended that the section has manifold requirements, viz. not only that the accused should not be a member of S.C. or S.T., the victim must be a member of S.C. or S.T., and in addition to all this the offence contemplated must have been committed "on the ground" that such person is a member of S.C. or S.T., or such property belongs to such member. It is contended that all these requirements are to co-exists, to make out the offence under Clause (v) of Sub-section (2) of Section 3. According to learned Counsel, in the present case, even taking the entire material on its face value, all that is alleged by the prosecution is that the appellants were not the members of the S.C./S.T., and undisputedly, the victim was a member of S.C./S.T. being 'Meghwal' by caste but significantly, there is not even a whisper to the effect that the rape was committed on the ground of her being member of S.C., nor is there any whisper to the effect that, the trespass was committed on the property of the victim, on the ground that the property belongs to a member of S.C., and therefore, no offence under Section 3(2)(v) of the Act is at all made out. Regarding the offence under Section 376, and 457, IPC, it was contended that, the learned trial Court was in error in relying upon the statement of the prosecutrix Genu Devi, and that of the other witnesses Hastu Devi, Puran Ram, Bhanwari Devi, Bhera Ram etc. According to the learned Counsel if the evidence of these witnesses is read together, it would be clear that the evidence is full of contradictions and discrepancies. It is also contended that even the statement of prosecutrix herself is full of such infirmities falsities, and contradictions, that the appellants could not be convicted on the basis of her evidence. It is also contended that the medical evidence comprising of the medical report Ex. P-5, so also the oral evidence of Dr. Arvind Vyas P.W. 8, belies the version of the prosecutrix Genu Devi, P.W. 7, regarding committing rape. According to the learned Counsel the doctor did not find any such injuries on her person as were either alleged, or were expected to be received by her in the event of she having been raped against he wish by the two appellants.
He has also contended that, the allegation about her subsequent conduct in going nude from her house to the house of her uncle-in-law is wholly unnatural. Likewise, it is also contended that there are contradictions as to the place where the occurrence took place i.e. whether it was in the 'Sal' or at 'kitchen', so also on the aspect as to whether Hastu Devi had come on the scene of occurrence or not. It is also contended that the FIR. is grossly belated. Then regarding offence under Section 457, IPC, it is contended that since even according to the prosecution the appellant Kalyan Singh had lit the match stick, and on prosecutrix asking as to who is there, the appellant gave out his identity, it cannot be said that the appellants had taken any precaution to conceal their presence from her, so as to be tantamounting to lurking house trespass. Likewise even according to the prosecutrix, there was no door at the entrance, which may have been opened by the appellants, it cannot be said that they have committed the offence of house breaking either, and thus, none of the aggravating ingredients, so as to make out the offence under Section 457, IPC are made out, and the offence if at all, made out, does not travel beyond Section 448, IPC or, at the most under Section 451, IPC (1st part).
7. On the other hand, the learned Public Prosecutor supported the impugned judgment.
8. We have considered the rival submissions, and have also gone through the record carefully. We may first take up the sustainability of the conviction under Section 3(2)(v) of the Act. We may gainfully recapitulate the language of Section 3(2)(v) which reads as under:
(v) commites any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
Our attention has been invited by the learned Counsel for the appellants, to a recent judgment of Hon'ble Supreme Court in Masumsha Hasanasha Musalman v. State of Maharashtra, reported in 2000 S.C.C. (Cri) 722, which was a case relating to murder, wherein the accused was convicted for the offence under Section 304-II, IPC and Section 3(2)(v) of the Act, and under the former he was sentenced to 5 years rigorous imprisonment while under the later he was sentenced for life imprisonment. These convictions were confirmed by the High Court. In appeal the Hon'ble Supreme Court noticed that there was no dispute about the deceased dying homicidal death, and considering the nature of injuries, confirmed the conviction under Section 304-II, IPC. Facts in that case were that between 7 and 8 P.M. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had left the house informing his wife that he would be going out for some time, and would return soon, thereafter. After about half an hour of the deceased left his home, the appellant came to the house of the deceased and enquired from his wife about the deceased. At that time the appellant was carrying a 'jambiya'. On coming to know from her that her husband had gone out of the house, the appellant started running through the lane. The wife getting suspicious followed, and near the hospital of Dr. Kalwaghe, she saw the appellant stabbing the deceased who fell down and died. It is on these facts Hon'ble the Supreme Court has held as under:
To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect.
With the above findings the conviction under Section 3(2)(v) was set aside. In our view the judgment in Masumsha Hasanasha Musalman's case fully supports the contention of the learned Counsel for the appellants, and since in the present case also, there is not an iota of material on record, even to indicate that, either of the offences was committed "on the basis' that the victim belongs to Scheduled Caste. Accordingly, the conviction for the offence, under Section 3(2)(v) of the Act, is very much required to be set aside.
9. Coming to the conviction for the offence under Section 376, IPC, the prosecutrix has been examined as P.W. 7. She has deposed in line with the allegation in the first report, about Sohan Singh having entered the house, ignited the match stick, and has also deposed that she asked him the purpose of his coming, and is alleged to have answered to have come to have intercourse, whereupon she raised a cry, even she was threatened to be shot dead. According to her Sohan Singh caught hold of her hand, and undressed her, while Kalyan Singh gagged her mouth, and Sohan Singh committed rope, thereafter Shoan Singh gagged her mouth, and Kalyan Singh committed rape. After completing the act, both the accused stated that they are bringing third persons, and with this they went away, then she had gone to her uncle-in-law Puran Ram's house, in a nude condition, only wearing blouse with buttons given way. There she called Puran's son Madanji, whereupon her uncle-in-law and his wife came, to whom she narrated the whole story, then his uncle-in-law brought her children. In the morning her uncle-in-law went to call her father-in-law, another uncle-in-law was telephoned to come from Ganganagar, but he did not come, then on next day she lodged a report. Then she was medically examined at Bikaner. She also alleges to have sustained injuries. She also alleges that the police took away quilt on which she was sleeping while the act was committed, so also deposed that her garments were taken away by the police. She has been cross-examined at length, and a proper comprehension of the cross-examination shows that, she was cross-examined on minute details of the act committed on her, and results that she may have suffered on step to step action. Then some cross-examination is directed on the aspect about, the other relations and neighbours coming to her house, or accompanying her to police station. The some cross-examination is directed towards the location and directions of apartments of her house, and the location of the house of her other relations. Then she was confronted with her previous statement Ex. D-7, (being her statement) recorded as P.W. 3, initially by the learned trial Court itself, wherein also she had narrated the vivid details of happening of the incident, and the subsequent events. However unfortunately she denied to have deposed certain portions in that previous statement Ex. D-7, rather she has deposed that the person who has taken down that part of the statement has wrongly taken in down. Then she was similarly further confronted with other portions of Ex. D-7, regarding her meeting with Puran Ram, or Hastu Devi, or Madan Lal etc. which she denied to have deposed. Then she was cross-examined regarding availability of other persons in the house, or in the vicinity. Then she was confronted with some portions of her police statement Ex. D-8, which she denied to have deposed. Significantly thereafter she had been suggested some questions, indicating that the act was committed with her consent, or Sohan Singh to have had agreed to pay her Rs. 200/-, on that the false allegations having been leveled against the appellants, on account of Hastu Devi and Madan having seen her, and enquired reason of coming of the two appellants. Then suggestions were given about the talks having taken place about compromise, and she having been demanded Rs. 60,000/- for compromise. She was then suggested that Sohan Singh being on visiting terms in the past also. It is in this background, that a look at the statements of the accused recorded under Section 313, CrPC, would show that both the accused persons have denied all the questions, i.e. including their having gone to the house of the prosecutrix, or the like, and have taken a stand that, they have been falsely implicated on account of political factionalism. Thus it is significant to note that, it is no where the case of the appellants either that, they were on visiting terms with the victim, or that she was a consenting party to the act, or that she has falsely involved them on account of Hastu Devi having noticed the appellants going from the house of victim on odd hours, or the like.
10. In that view of the matter the core question shall be, as to whether the prosecution has established that, the accused had committed the act, on the victim, and without her consent, or against her will.
11. True that it is FIR has been lodged after some delay, inasmuch as, the occurrence took place in the night intervening 19/20.2.1995, while the FIR has been lodged on 21.2.1995. However, the explanation given by the victim is that, message was sent to her husband, and her uncle-in-law, and father in law, and on arrival of father-in-law the report was lodged. Though the prosecutrix has not stated so, but there is sufficient indication in the other evidence of prosecution, viz. a suggestion was given to P.W. 3 Bhanwari Devi about some Panchayat having been held at the house of the accused persons, which suggestion has been denied, and the witness has stated that all that happened was that, the fathers of the accused were requesting the persons on the side of the prosecution not to go to the police station. Then as noticed above the prosecutrix was also suggested about some talks having taken place to compromise. The totality of circumstances are also required to be comprehended, inasmuch as the accused persons are Rajputs by caste, and energetic young Rajput chaps of the age of 27 and 28 years, they are residents of same village, while the prosecutrix is from down trodden community, being Meghwal, her age has been given out by her in her statement to be 26 years while according to Dr. Arvind Vyas her age was 21 years. She apart from being mother of two children, is also found to be already carrying a pregnancy of 14 weeks, her father-in-law does not often remain there in the village, and on the fateful day her husband had also gone to Nokha. In such circumstances, if at all any such incident had occurred, naturally she was pitted against strong young boys, who could be assumed to be mighty in the village, and therefore, it would be too much for us to expect that she would muster the courage of immediately rushing to the police station, at least without some moral support of her in laws, or such other close relations. It is also reasonable for us to comprehend that, in-laws may also have given a second thought, before daring to taken a step against local Rajput family, and in that process, may be that dominating community persons may have tried to convene a Panchayat, either to hush up the matter, or to silence her on the strength of money. In such circumstances, if the report got little delayed, from that itself, it cannot be concluded that despite nothing having happened, a wholly false case has been cooked up, simply because there being alleged to be some existing political rivalry, between the accused persons on the one side, and some Naru Ram on the other side. It is to be comprehended that, in the social set up of such a small village, it is too much to expect that, simply because there may be existing some political rivalry between Naru Ram, and the accused persons, the victim would come forward merely on the gesture of Naru Ram to level such allegation against her womanhood, and expose herself to the hazards of investigation and trial, wherein she is expected to be and she has been exposed to so many embarrassing questions. In that view of the matter, the delay in lodging the report, in the peculiar circumstances of the case, in our view, does not believ the prosecution case.
12. Coming to the evidence about actual happening of the incident, true it is that the prosecution has to stand on its own legs, and support cannot be had from mere suggestions made on the side of the defence, treating it to be its defence. But then, that of course may in certain circumstances, be of some assistance of the Court, in appreciating the reliability of the prosecution evidence.
13. In the present case, the crucial part of the story about the two appellants having entered her house at that odd time when she was asleep, and the appellant Sohan Singh having lit the match stick, and thereafter both the accused persons having committed rape one after another, has not been sufficiently assailed in the cross-examination of the prosecutrix. Questions put in the cross-examinations, about the consequences suffered by her, on step to step of the accused, have also, in our opinion, not shaken her testimony so far the actual commission of the act is concerned. So far the fact about her not having received requisite injuries is concerned, it has clearly come that she was sleeping in the house on quilt, and was not sleeping on any bare rough surface. Then since the occurrence is of 19.2.1995 and she medically examined on 21st, she being a married lady, having two children and carrying pregnancy of 14 weeks, it is too much for the defence to expect that, the victim may have suffered injuries on her private parts, or inflammation of the private parts to be noticed by the doctor. In that view of the matter, true it is that the basic evidence of the act consists of the testimony of the prosecutrix, but then apart from some minor contradictions here and there regarding her subsequent conduct, it has to be brought on record to the satisfaction of the Court, whether from suggestions to the prosecution witnesses, or by leading defence evidence, as to, after all, why the prosecutrix would be leveling such allegations effecting her womanhood, simply to have the accused persons punished if no incident had at all taken place. We make it clear here that presently we are not discussing the aspect of existence, or absence of, consent of the victim, and are only on the question, as to whether the act was committed by the accused persons, or not. A perusal of the statement of other witnesses in conjunction with the statement of the prosecutrix, does show that there are some contradictions in their evidence inter se, as to when Hastu Devi arrived, or who appeared at Puran Ram's house when the prosecutrix after coming to his house gave the call, and so on, but then even for appreciating these contradictions, we have to comprehend the extent of knowledge and courage of the prosecutrix. Significantly during cross-examination, she even happened to disown Ex. D-7, which significantly is her statement on oath, recorded by the learned trial Court itself, and in this trial itself. It would be too much for us to assume that, she did not depose the statement Ex. D-7, or the confronted part thereof. It is a different story that, the confronted part again is only regarding the events happening subsequently. As such, she may have not been photographic in her memory, so as to narrate the subsequent events with meticulous, and mathematical precision, but then thereby it would be too much to assume that, the act was not at all committed by the accused persons, or that there was any mistake in identity of the accused persons, and they are being falsely implicated for any ulterior motive, whether it be political rivalry at the behest of Naru Ram, or for the victim extorting cash consideration of Rs. 60,000/- or the like.
Thus, we are satisfied, that on the date and time alleged, sexual intercourse was had, with the victim, by the two appellants at her house.
14. Now, we take up the aspect as to whether having such intercourse amounts to offence of rape? According to Section 375, the sexual intercourse with the woman is rape, if it is had, either against her will, or without her consent, leaving apart the other four clauses, regarding consent. The other two requirements, i.e. against her will, and without her consent, are clearly disjunctive. The two clauses are intended to cover two separate contingencies, and are obviously disjunctive. The obvious effect is that once the prosecutrix contends that the intercourse was had with her, without her consent, or against her will, that would, of necessity and always not mean that, there has always to be a struggle, or persistent struggle between the accused and the victim, so as to even bring about requisite bodily injuries on the persons of the victim, and at times on the person of the accused. The will, has also to be free will, and the consent has to be also free consent. We are conscious of the fact that there may be circumstances where a willing, or consenting prosecutrix, may turn round and disown the willingness, or consent, so as to falsely convert a willing intercourse into an offence of rape, but then notwithstanding that danger, the requirements of section have to be satisfied, and this requirement, of absence of will, or absence of consent, is a brass question, of fact. To decide this question the Court may look for evidence, direct, or circumstantial, and on that basis, has to come to conclusion about absence of will, or consent, for finding the accused guilty. The task of the Court may be difficult to arrive at a conclusion of fact on this aspect, but then it cannot be shirked. It is at this place that for deciding this question one of the most material circumstance, which the Courts have been looking at, is the existence of injuries on the persons of the victim, as a strong circumstances, to negative the existence of consent, or will. However from that in our humble view, it would not be wholly correct to deduce the proposition that in every case where there is absence of injuries on the persons of victim, apart from the cases contemplated by remaining four clauses of Section 375, that the act was always had either with her consent, or with her will. The burden of proving the offence is of course of prosecution, but then in Section 375, the burden regarding the aspect, of will or consent is a negative burden on the prosecution, as the section requires the intercourse to have been had, against her will, or without her consent. Inherently in the very nature of things, though even the negative burden is to be discharged in the first instance by the prosecution, still the burden remains to be a negative burden, and to discharge the same, it may not always require that strong evidence, as is required to discharge a positive burden of proof. With the obvious result that, if the prosecution is able to discharge the negative burden, the Courts would be justified in expecting a proper rebuttal from the defence, by way of positive evidence to show that intercourse was had, with her consent, or with her will. This obviously may be required to be done, either by leading defence evidence, or by eliciting the facts from the prosecution evidence, or by bringing on record convincing circumstances, again whether by eliciting it by prosecution evidence, or by leading defence, as to why the prosecution is wrongly claiming, absence of will, or absence of consent. It is for this purpose that the Court may reasonably comprehend the circumstances, by considering the suggestions made to the prosecution witnesses from the side of the defence, in cases where accused does not lead any evidence in defence, and at the same time may also take into consideration, the effect of the stand taken by the accused.
15. Coming to the facts of the present case the prosecutrix has clearly deposed that the two accused persons committed intercourse with her, in the manner that one of them gagged her mouth, and other committed intercourse. Obviously the act was committed, against her will, and in any case without her consent. This part of the testimony has not at all been shaken in the cross-examination, inasmuch as nothing has been brought out in her cross-examination, to show that she was a willing, or consenting party to the act, rather suggestions made to the prosecutrix, and to P.W. 3, does show that efforts were made on the side of the accused persons to hush up the matter,or having it compromised, whether by intervention of Panchayat, or on the strength of cash consideration. In our opinion, willingness or consent has to be shown to have existed prior to having of intercourse, and the section does not contemplate negativing of the offence by subsequent ratification. This coupled with the fact that, even in the statement under Section 313, CrPC accused persons did not bear the courage, even to offer their bare ipse-dixit, about the prosecutrix being consenting, or willing party, to the act. Thus, in the totality of circumstances, we are inclined to believe the testimony of the prosecutrix, about the act having been committed without her consent, or against her will. Thus, the offence under Section 376, IPC, in our opinion, is satisfactorily brought home against both the appellants.
16. Coming to the conviction under Section 457, IPC, even from the perusal of the statement of the prosecutrix itself, it is clear that accused Sohan Singh had lit the match stick, which by itself clearly shows that the accused persons did not taken precaution to conceal their presence, rather they are said to have disclosed their identity, and the purpose of their visit. Likewise there is no averment in the entire evidence, to show that the accused persons effected their entry, or exit, in any one of the modes, as provided in Section 445, IPC The obvious result is that the offence under Section 457, IPC is not made out. But the facts remains that, their entry in the house was with intention to commit an offence, and therefore, it did amount to house trespass. The matter does not end here inasmuch as the question then arises as to what offence is made out? Since according to the prosecutrix accused persons had come with intention to commit rape, which is punishable under Section 376, IPC, with imprisonment for life, and therefore, such trepass does amount to the offence under Section 450, IPC, but then the predicament is that, the charge framed against the accused appellants by the learned trial Court was about their having committed the trespass with intention to commit criminal offence punishable with imprisonment, and was not so framed, about their having committed trespass with intention to commit offence punishable with imprisonment for life, as such they can be convicted only for the offence under Section 451, IPC, which provides punishment for committing house trespass and in order to commit any offence punishable with imprisonment. Therefore, since the act of the appellants did not amount, either to lurking or to house breaking by night, in view of the charge framed against the appellants, they can be convicted for minor offence only, being one under Section 451, IPC
17. Accordingly, the appeal is partly allowed. The conviction of the appellants under Section 3(2)(v) of the S.C./S.T. (Prevention of Atrocities) Act, 1989 is set aside. They are acquitted of this charge. Their conviction under Section 457, IPC is set aside, and instead are convicted under Section 451, IPC and each of them are sentenced to one year's rigorous imprisonment, with a fine of Rs. 500, in default of payment of fine to undergo three months simple imprisonment. Their conviction under Section 376, IPC is maintained. However, since the learned trial Court had convicted the appellants for the offence under Section 376 IPC read with Section 3(2)(v) of the Act, which is punishable with life imprisonment only, and since the conviction under the said Section 3(2)(v) has been set aside by us above, considering the totality of circumstances, viz. the age of the prosecutrix, age of the two accused persons, the long time elapsed, since the date of incident till the date, the period of imprisonment already undergone by the accused persons, ann the fact that the prosecutrix is from a down trodden community, in our view, the ends of justice would be met, if each of the appellants is sentenced to rigorous imprisonment for five years, and a fine of Rs. 1,000/-, in default of payment of fine to further undergo six months simple imprisonment, and accordingly they are sentenced to this punishment for offence under Section 376, IPC.