Jammu & Kashmir High Court
Sansar Chand And Another vs State Of J&K on 21 December, 2005
Bench: R.C.Gandhi, J.P.Singh
HIGH COURT OF JAMMU & KASHMIR AT JAMMU. Cr Appeal No. 6 of 1998 AND Confirmation NO. 6 of 1998 1. Sansar Chand and another 2. State of J&K Petitioners 1. State of J&K 2. Sansar Chand and others Respondent ! Mr.O.P.Thakur, Advocate for Appellants. ^ Mr. S.C.Gupta, AAG for Respondent. Coram Hon'ble Mr. Justice R.C.Gandhi Hon'ble Mr. Justice J.P.Singh Dated : 21/12/2005 : JUDGMENT :
PER GANDHI-J :
This Criminal Appeal has been preferred against judgement and order dated 21.01.1991 and 22.01.1991 passed by the learned Sessions Judge, Udhampur, whereby he has convicted and sentenced the accused for commission of offences under Sections 458 and 376 R.P.C., to suffer Rigorous Imprisonment for life and fine of Rs, 20,000/- in equal shares, in default whereof to undergo further imprisonment of the like nature for a period of two years. The appellants have also been convicted and sentenced for commission of offence under Section 458 RPC to suffer Rigorous Imprisonment for a term of 10 years and a fine of Rs. 10,000/-., in default of payment of fine, to suffer Rigorous Imprisonment for a further period of two years. Both the sentences have been ordered to run concurrently.
The prosecution story is that the prosecutrix is a widow of 35 years. Her husband died two years before the occurrence. She has two sons and two daughters. Her elder daughter has been married while other children are minors, living with her, in her house at a hilly village karlah. She alongwith her children was sleeping on a single cot. The door had no bolt. She had kept a stone behind the door to keep it closed. On the night intervening 31st March/Ist April, 1991, the accused-appellants came to the house of the prosecutrix at about 11.00 p.m., and broke open the door with kicks, where the prosecutrix alongwith her children was sleeping. They broke open one side of the door and entered in the house. The prosecutrix and the children woke up. Accused Sansar Chand caught hold of the prosecutrix from the cot and was moved to the ground. The other accused Krishan was having a torch. He put off the light of the room, which had been kept on by the prosecutrix and stood at the door. The prosecutrix pleaded with folded hands to the accused to go back but all in vain. The children saw their mother being laid on the ground by accused Sansar. They started crying as they apprehended that accused was to beat their mother. The accused threatened them that if they cry they would be killed. The accused Sansar Chand after removing shalwar of the prosecutrix raped her against her will and consent. When he finished the act, he called the other accused. The other accused Krishan also raped her. The prosecutrix on the pretext of urinating went out of the room and left for bringing her husband's brother Surjan, who lived at a distance of about one mile away. When they came back, the accused by then had already gone. She went to the house of the Chowkidar in the morning but he was not there. She went to Police Station Chenani, which is about 20 Kilometers away from the place of occurrence and lodged the FIR on 1.4.1991. Police registered FIR NO: 34/1991 for commission of alleged offences under Sections 376/452 read with Section 34 RPC and started investigation.
During the investigation, the prosecutrix was got medically examined. One broken wooden plank of the door was seized from the spot. The shalwar of the prosecutrix was also seized and sent for chemical examination to F.S.L., Jammu and its report was obtained. The statements of the witnesses were recorded u/s 161 Cr.P.C. The accused were arrested and got medically examined on 18.4.1991. The challan was presented in the Court. They were charge sheeted on 15.5.1991 for the alleged commission of offences under Sections 376/451 R.P.C. They pleaded not guilty and were put to trial.
Prosecution, to prove the charge against accused appellants, examined Mst. Thakri the prosecutrix, Ms. Semi daughter of the prosecutrix aged 14/15 years, Surjan, Lal Chand, Dr. Uma Sharma, Dr. Narinder Singh, Dr. J.L.Fotehdar Assistant Director, F.S.L., Jammu, Dina Nath Naib Tehsildar and Sardari Lal A.S.I., Investigating Officer, as prosecution witnesses.
The statements of the accused u/s 342 Cr.P.C., were also recorded, in which they have refuted the allegations. They entered into their defence and examined Marad, Roop Chand and Ganja as defence witnesses.
On appreciation of the evidence led by the parties and hearing learned counsel, the trial court recorded the finding that the prosecution has proved commission of the offences and the accused were convicted and sentenced accordingly.
The prosecutrix has stated in her statement that her elder daughter is of 16 years age and second unmarried daughter lives with her. Her elder son is of 10 years of age and the other son is younger to him. About three months ago, she does not remember the date, at about 11.00 p.m. in the night, she alongwith her three children had been sleeping on a cot and the electric light was on. The door was closed by putting a stone behind it. The accused came with kicks, broke open one plank of the door and entered inside. The accused were having a torch. She was on her cot alongwith her children. She with folded hands enquired from the accused as to why they had come. The accused started abusing her and asked her, as to who was she to enquire from them and they will kill her. She requested the accused to go back. She stated that the children are sleeping and she is having a family, they should not make noise but the accused Sansaru caught hold of her while she was on the cot and put her on the ground. At that time two of her children Semi and Shanker aged 9/10 years had awakened. Both the children while sitting on the cot started weeping. The accused Krishan put off the light of the room. Sansaru accused started raping her and other accused holding torch, stood on the door and threatened the children that in case they raise any noise, they would be killed. Accused Sansaru committed rape on her after removing his pant and her shalwar and thereafter, accused Krishan also raped her, against her will forcibly. That on the pretext of urinating she came out and went to the house of his husband's brother Surjan and brought him to her house alongwith 5/7 children but when they reached back, the accused had already fled away. She had lodged written report with regard to the incident in the police station Chenani in the morning. The name of Krishna was not known to her and later on, she came to know. In the morning she had gone to chowkidar but he was not at home. The contents of the report EXPW-TR have been admitted as correct which bear her thumb impression. The seizure memo relating to the seizure of shalwar has been proved as EXPW-1. She has identified the salwar shown to her, in the court, being the same. The police had also seized the broken plank of the door vide seizure memo EXPW T-3 and kept on her supurdnama vide EXPW T-4. She further stated that police had got her medically examined on the next day and because of this incident, she had been defamed in the vicinity. In the cross examination she stated that near to her house there is a house of Alim Din only and no other house is located near by. The house of Surjan is at a distance of two jeribs. Her one daughter Darshana has been married in Poona, who lives in her in-laws house. Ms. Semi is of 12 years of age. The prosecutrix was working in the farm of Sohan Lal Advocate. After one and a half month, her services were terminated whereafter she went to another farm of Gani, where she served for six months. In the said farm, there were other employees including accused Krishna. The accused lived 2, 3 miles away from her house. Before the occurrence she was not acquainted with the accused. She has stated that after her leaving the job, accused Krishna had been employed by Gani Farm owner. She further stated that she knows the name of Sansaru accused because he also lives in her village whereas she did not know the name of the other accused. Only two months ago, she came to know about the name of other accused but she don't know the name of that man who had disclosed the name of other accused to her. Sansaru accused is not married but is a bachelor. She had no acquaintance with Sansaru. She cannot find time from the watch. Her children told her about the time. Accused Sansaru caught hold of her hands and forcibly had intercourse with her. She further stated that Sansaru caught her both hands with his one hand. She tried to get herself released and even ticked the accused with her legs but the accused did not let her go. The children at that time could not go out because it was 11 p.m. in the night. She had become helpless, so she could not bite or scratch the accused with her teeth or nails.
PW-Semi is the daughter of the prosecutrix, whose age at the time of occurrence was 13/14 years. She has supported the version of her mother. She has stated that accused Sansaru caught her mother and made her to lie on the ground. They were threatened by the accused that if they raise noise or went out of the room, they would be killed with the drat, so they continued to sit on the bed. The accused Krishna put off the light in the room and with a torch in his hand stood at the door, while Sansaru accused had caught her mother. Since there was darkness in the room, so she could not see as to what was done to her mother but she heard her mother saying to him that he should leave her. Accused Krishna was standing at the door to watch that any person may not come there. After some time Sansaru accused called out accused Krishan. She stated that when Sansaru went out and Krishan came inside and went to his mother and remained for some time with her. That after some time perhaps her mother put on the light and she saw that the accused were present in the room. That her mother on the pretext of urinating went out of the room and after her, they also went out and then with their mother they went to the house of 'Taya', which is at some distance. That her mother disclosed about the occurrence to her Taya and three days thereafter the police came in the village. She was subjected to cross-examination. She withstood the cross-examination also. She has stated in the cross examination that one plank of the door had been broken, police has seized the broken plank of the door. There was one cot in the room on which they were sleeping. In the morning 10/12 people had assembled on the spot. That at the time, during which the accused remained inside the room, the light had been put off. On the same day, the mother had gone to the police station, Chenani.
P.W Surjan has stated that Mst. Thakri is his brother's wife. He knows the accused also. His house is situated at a distance of 5/6 jeribs from the house of Mst. Thakri prosecutrix. The house of Mst. Thakri is at a lonely place. According to him about 8/9 months ago his sister-in-law Mst. Thakri had come to him in the morning and told him that the accused had outraged her modesty so he should go to the scene of occurrence as he was being called by the police. That one plank of the door was brought by Mst. Thakri from inside which was seized by the police. The door had been broken. It is not correct that Mst. Thakri the prosecutrix had come in the night after the occurrence and had told him about the occurrence. This witness was declared hostile. He has stated that police has not seized the Shalwar in his presence but the seizure memo EXPW T/3 bears his signatures and contents thereof are not correct. He has stated that seizure memo EXPW T/3 is correct. That the wooden plank was kept on his supurdnama vide EXPW T/4 by the police. That he does not know as to when the police had sealed the shalwar but the supurdnama of the seal bears his signatures. On cross-examination he has stated that the plank seized by the police was useless and not of the door. That the door had not been broken and was intact and could be bolted from inside. It is correct to say that Thakri used to work in a Rabbit Farm and the owner of that Farm after terminating her services had employed the accused.
PW Lal Chand has stated that he has a Ghrat (water Mill) at a distance of three jeribs from the house of Mst. Thakri. That about an year ago police had called him on spot and had showed him a wooden plank and told him that it was to be seized. The seizure memo EXPW T/3 bears his signatures and is correct. That police had seized Shalwar on the spot vide EXPW T/2. The seizure memo is correct and the Shalwar shown to him in the court could be the same, which the police had seized. That the seized wooden plank had been kept on the supurdnama of Surjan vide EXPW T/4. That in his presence Shalwar had not been sealed. But supurdnama of the seal bears his signatures. He has further stated that in the morning, Thakri had come to his Ghrat and had told him that in the night two boys had come to her house and had torn out her clothes but had not disclosed the names of those two boys. The witness was declared hostile. He has stated in the cross-examination that the door was intact and not broken. The seized plank was not of the door. The clothes, which the police had seized, had not been actually shown to him. That it is correct to say that Mst. Thakri had been removed by the owner of the farm who had thereafter employed the accused and only on the basis of this mischief she had filed a false case against the accused.
Dr. Uma Sharma has stated that she had examined the prosecutrix on 2.4.1991 at 11.30.a.m. and on examination of her private parts, no mark of violence had been seen nor on her body. She had opined, as the lady is married one and the semen report is negative no definite opinion regarding rape could be given. She had examined the prosecutrix to ascertain the factum of rape at the instance of police constable No. 250 of Police Station, Chenani. She had also examined the clothes of the lady, which she was wearing, which did not bear the semen stains. She cannot identify the trousers of the victim in the court. On a court question, she admitted that she had not enquired about the history of the incident from the victim prior to her examination. She further stated that she had enquired about the change of the clothes from the victim, to which she replied in affirmative. According to her, she did not enquire as to whether the victim had taken the bath after the incident. She has also stated that it is correct that if the victim has taken bath after the occurrence the spermatozoa get washed away and certainly affects the opinion as to factum of rape. That she cannot recollect that the victim had narrated to her that she had been brought for examination three days after the occurrence but this fact has not been mentioned in my certificate. The occurrence took place on the night intervening 31.3.1991/1.4.1991 and the prosecutrix was examined on 2.4.1991 i.e. after three days.
PW-Dina Nath Tehsildar has proved sealing of the packet vide his certificate EXPW DN.
PW J. L. Fotehdar, Assistant Director, F.S.L., Jammu has stated that on 3.5.1991 he was posted as Assistant Director, F.S.L. Jammu. Police brought a sealed packet of FIR NO: 34/91 of Police Station, Chenani. After opening the packet a shalwar came to be recovered, which was stained. The stains were examined and found to be of human semen and spermatozoa was present. According to him, report EXPW JL is correct. On cross-examination he has stated that human spermatozoa was present.
PW Sardari Lal, A.S.I is the Investigator. He has stated that report EXPW-T had been presented before him, which has been exhibited as EXPW-T1, which is in his hand-writing. That he had prepared the site plan EXPW SL. That docket EXPW SL/1 for medical examination of the prosecutrix is in his handwriting. Likewise, seizure memos EXPW T/II, EXPW/III and EXPW T/IV are also in his handwriting. In cross-examination he has stated that the names of the accused were not recorded in the FI.R. Thakri is mother of three children and whose husband had expired. On 1.4.1991 he had got the prosecutrix medically examined.
In defence, the accused have examined Defence Witnesses, namely, Chitro, Roop Chand and Gunja. DW Chitro has stated that the prosecutrix is a lady of immoral character. That she used to work on the farm of Sohan Lal Advocate and the Rabit Farm of Mr. Bakshi who had removed her from her employment as she was a bad character woman and on her place they had employed the accused.
Defence Witness Roop Chand stated that his house is located at a distance of hundred feet from the house of Mst. Thakri. That in case something had happened he must have heard the same.
Defence Witness Ganja has stated that being a chowkidar of the village, he had not heard about the occurrence. According to him, because Mr. Bakshi had removed her from his employment in the farm and employed the accused, so Mst. Thakri had taken cudgel with the accused and on the basis of that enmity, she had involved the accused in the incident.
We have heard learned counsel for the parties and perused the record. Learned counsel for the appellant has brought attention of the court to the statements of the prosecution and the defence witnesses to make out that there are contradictions and improbabilities in the prosecution story, which is not believable on facts.
F.I.R. was lodged on 1.4.1991 at 1700 hours in police Station Chenani. The prosecutrix was taken to the hospital on 1.4.1991 for medical examination; she was taken again to the hospital on 2.4.1991. On 4.4.1991 the police seized the Chahalwood, which is a part of the broken door. On 18.4.1991, the appellants were medically examined and the Doctor opined that the accused are well developed and have matured genitals and both are capable of performing intercourse.
Mr. Thakur, learned counsel for the appellants has stated that the prosecutrix in her statement has stated that she had seen the second accused for the first time on the day of occurrence and in the court she has stated that name of the second accused is Krishan. She does not know the name of person who disclosed the name of the accused to her. His submission is that the identification of the accused has not been conducted. In such cases, where version of the prosecution is of such nature, the accused are entitled to acquittal. He has relied upon judgement of the Supreme Court titled 'State of Himachal Pradesh V. Lekh Raj and another', reported as 1999, S.C, 3916, relevant is para-3 of the judgement, which is extracted below: -
"3. The respondent No.2 has been acquitted by the High Court on the ground that his identity could not be established by the prosecution at the trial. The admitted position is that the name of respondent No.2 was not known to the prosecutrix and thus his name not mentioned in the FIR. She had, in the written report lodged with the Superintendent of Police, Mandi on 11-10-1993, stated that respondent No.1 "with another person whose name is not known to the complainant interrupted the complainant from her back and gagged her mouth. They pounced upon her and made her to lay down on the road and had forcible sexual intercourse with her". In her statement before the Trial Court the prosecutrix admitted that she had not known the respondent No.2 earlier and further that no Identification Parade was conducted by the investigating agency. She further admitted having seen the respondent No.2 in the Court only after the day of occurrence. How the respondent No.2 was named, as an accused person is a mystery shrouded with doubts, which has not been properly and sufficiently explained by the prosecution. During the investigation of a crime the police agency is required to hold Identification Parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of Test Identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification Parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character"
In the F.I.R. the name of accused Sansaru has been mentioned. It is also stated in the F.I.R. that the second accused is also resident of village Karlah. PW-Semi has disclosed in her statement the name of the accused, whose statement was recorded on 4.4.1991. It is not the case that the accused were seen on the day of occurrence only by the prosecutrix and thereafter seen in the court. This judgement on facts and circumstances is not relevant to the present case. Both the accused have been identified by the prosecutrix and also by her daughter, who is a witness to the occurrence, in whose presence the prosecutrix was raped. Another contradiction and improbability, which has been brought to our notice, by learned counsel for the appellants is that the prosecutrix has stated that Sansaru accused with his one hand caught both hands of the prosecutrix, which is not possible, therefore, according to him, the prosecutrix was a consenting party. The statement of the prosecutrix explains series of events. Prosecutrix has stated that accused Sansaru caught hold of her and put her on the ground. It is also to be noticed at the same time that they were two accused and the prosecutrix was with her minor children. She pleaded the accused to leave the room. The accused also threatened them. This circumstance cannot be taken as that the prosecutrix was a consenting party or has not made any effort to prevent the accused from committing the offence. She has stated that she kicked the accused, which alone was possible for her. The children could not come out, because it was night-time and they were scared and weeping on seeing the plight of their helpless mother and also under threat of the accused.
In support of his plea, he has relied upon judgement of the Supreme Court reported as Dilip and another V. State of M.P., in A.I.R. 2001, S.C., para 14, which reads: -
" The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going to testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about p.m. in her own house, situated in a populated village by the side of a main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes, which she was wearing. This part of the story, is not only not corroborated by the medical evidence., is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. He own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix as given in the Court"
Every case has its own attending circumstances. In the case, cited by the learned counsel for the appellants, gang rape is committed in the house of the prosecutrix, situated in a populated village. House being situated by the side of a main road where people were moving on account of Holi festival. In the present case, the occurrence has taken place in a hilly village Karlah, where there is no house nearby. A poor village widow was horrified by the threats of the accused in presence of her children to kill them. The prosecutrix has stated that she resisted the accused with kicks but the accused did not let her go. The prosecutrix, perhaps being terrified, did not react vigorously because of the fear of danger to her life and the life of her children.
This judgement is not of any help to the learned counsel as the house in the present case is lonely and minor children were present at the place of occurrence and their helpless mother was subjected to rape in their presence, which is proved from the F.S.L. Report. The presence of human semen/spermatozoa has been admitted by Sh. J. L. Fotehdar, Asstt. Director, F.S.L, Jammu.
Further submission of learned counsel for the accused is that the scribe of the F.I.R. has not been examined and in support of his submission, he has relied upon para 14 of the judgement delivered by the Apex Court in case titled, Surendra Pratap Chauhan V. Ram Naik and others, reported in 2001, S.C. 164, which is extracted as under: -
"14. Ordinarily, Ram Bharose would have rushed to the police station and narrated the incident orally to the constable Mohrrir for the purpose of recording the FIR. However, a written report prepared by Shriram Yadav was taken to the police station. It is surprising that the written report carried by Ram Bharose and delivered at the police station has not been exhibited. Shriram Yadav, the scribe of the report, has also not been examined. According to Sheikh Faikoo (PW 6) there was only one FIR, the one in question, lodged at the P.S. on that day. The General diary in which the FIR was recorded was thus open and so available for the whole day. No record has been produced to show whence the copy of the FIR was dispatched to the jurisdiction Magistrate in compliance with S. 157, Cr.P.C. We are not recording any finding that the FIR in the case was made belatedly and then ante-timed; we are only pointing out at a few likely holes left unplugged by the prosecution and hence perceptible in the facts and circumstances of the case at hand."
The Apex court was seized of circumstances, where not only the scribe of the report was examined but report was also not exhibited, though the name of the scribe was available. The court was also dealing with a situation wherein the record was not produced when copy of the FIR was sent to the Magistrate and the FIR was made belatedly and then ante-dated. In this case, the name of the scribe is not known. The FIR has been exhibited as EXPW-I. The report was got written by the prosecutrix at Chenani, which is at about 20 kilometers from her residence. The prosecutrix being a village lady has not taken care to know the name of the scribe, who has scribed the report. However, the contents of the report have been admitted by the prosecutrix.
27. The trial court has rightly discarded the statements of witnesses, who have been declared hostile. PW Surjan has stated that the prosecutrix had narrated the occurrence to him. He has not denied that the prosecutrix has told him about the occurrence that the accused had outraged her modesty. It is admitted that house of the prosecutrix is at a distance and at a lonely place. He has not stated that her statement was not recorded by the police. He has also proved that one plank of the broken wooden door was brought by Mst. Thakri, which was seized by the police.
Similarly, PW Lal Chand though declared hostile, has stated that he was called on spot and the wooden plank was seized vide Seizure memo EXPW, which bears his signature and is correct. The police seized Shalwar vide EXPW-II, seizure memo is correct and the Shalwar shown to him in the court could be the same which the police had seized. He has also stated that the seized wooden plank had been kept on the supurdnama of Surjan vide EXPW T/4 and that the supurdnama of the seal used for sealing the Salwar bears his signatures. He has further stated that in the morning prosecutrix had come to his Ghrat and had told him about two boys.
On appreciation of the prosecution and the defence evidence, we find that even the hostile witnesses such as Surjan and Roop Lal, have not denied that the prosecutrix had told them about outraging of her modesty by the accused. No lady in our society would involve herself in a false case, resulting in her own character assassination. She is a widow with minor children in her home. The occurrence has taken place in a situation where the accused have threatened the prosecutrix and her children to kill. The lady might have sensed danger to the life of the children at the hands of accused. Learned counsel for the appellants has not shown any plausible reasons to dis-believe the statement of the prosecutrix or her children. The statements of the prosecutrix and minor Semi are natural. In our society, such offences are oftenly committed with helpless ladies and are not reported because of fear of blot to the character of the prosecutrix. There is no reason to disbelieve the prosecution story for the reason that the prosecutrix has falsely involved the accused as stated by the defence. The prosecution story is corroborated by medical evidence of presence of human semen on the salwar of the prosecutrix. The statement of the prosecutrix, her minor daughter and other corroborative evidence cannot be dis-believed. The Supreme Court has made observation while appreciating a rape case in the judgement reported as, 'Bharwada Bhoginbhai Hirjibhai V. State of Gujarat' in A.I.R. 1983 S.C., 753, which is noticed below: -
" Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society."
Their Lordships have further observed:-
" On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration in the form of eye witnesses account on an independent witnesses may often be forthcoming in physical assault cases such evidence cannot be expected in sex offences having regard to the very nature of the offence. It would therefore, be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world. If the evidence of the victim does not suffer from any basic infirmity and the probabilities-factor does not render it unworthy of credence as a general rule there is no reason to insist on corroboration except from the medical evidence where, having regard to the circumstances of the case m4dical evidence can be expected to be forthcoming subject to the following qualification. Corroboration may be insisted upon when a woman having gained majority it found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self-preservation. Or when the probabilities factor is found to be out of tune."
The plea of the learned counsel for the appellants that the accused has been falsely implicated because of termination of services of the prosecutrix and employment of the accused in her place, is not acceptable. The prosecutrix cannot be expected by any stretch of imagination, take revenge, which may exculpate to the extent of her self-respect.
Keeping in view the circumstances and on appreciation of the evidence, it is has been established by the prosecution that the accused have forcibly entered the house of Mst. Thakri in the night and raped her one after the other in presence of her children. The statements of the prosecution witnesses are natural and believable and do not suffer from any improbability. The other corroborating evidence also connects the accused with the commission of offences under Sections 376/451 R.P.C. The learned trial court has also convicted and sentenced the accused for commission of offence under Section 458 RPC whereas the accused has been charge sheeted for commission of offence under Section 451 R.P.C. besides Section 376 R.P.C. The conviction and sentence under Section 458 is converted for commission of offence under Section 451 R.P.C. The sentence awarded by the trial court for commission of offence under Section 376 RPC is maintained. Besides, the accused are convicted and sentenced to undergo rigorous imprisonment for a period of three years for commission of offence under Section 451 R.P.C. Both the sentences to run concurrently. For the aforesaid reasons, the appeal being devoid of merit, fails and is accordingly dismissed. The judgement of the trial court is confirmed. Confirmation disposed of accordingly.
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