Rajasthan High Court - Jaipur
Jawahari Lal vs State Of Rajasthan on 3 May, 2006
Equivalent citations: 2006CRILJ2857, 2006(3)WLC293
JUDGMENT Khem Chand Sharma, J.
1. This criminal appeal by appellant Jawahari Lal arises out of the judgment and order dated 18-9-1984 passed by the learned Sessions Judge, Kota, by which the learned Judge has convicted the appellant for offence under Sections 376, IPC and sentenced him to undergo rigorous imprisonment for 5 years.
2. On 14-3-1982 at 5.00 p.m. P.W. 4 Mst. Lad Kanwar along with her brother Bala went to Police Station Budha-deet (Kota) and lodged oral report, thereby informing the police that at about 12.00 noon she had gone to her field to collect foddar. While she was busy in making a bundle of gram crop, all of a sudden, one Babu and appellant Jawahari came there from the field of Chhitar Bhadaria, caught hold of her and made her to fall on the ground and thereafter appellant committed rape on her. She raised an alarm but there was none to hear her cries. According to her, Babu also committed rape on her. She alleged that she sustained abrasions on her breasts and her bangles had also broken. After committing rape, both the accused ran towards canal. Lastly, she alleged that one Panraj met her while she was returning her home. Having reached home, she disclosed the incident to her brother and thereafter she and her brother informed the police and lodged the oral report.
On the above oral report, the police registered a case for offence under Section 376, IPC vide FIR, Ext. P6 and proceeded with the investigation.
3. In the course of investigation, site plan, Ex. P8 as prepared, Ghaghari and blouse of the prosecutrix were seized vide Ex. P9 and broken pieces of bangles were also seized vide memo Ex. P. 12. The appellant was arrested on 30-5-1982 and his underwear was seized on 30-5-1982. The clothes of accused and prosecutrix were sent to Forensic Science Laboratory. The prosecutrix was subjected to medical examination on 15-3-1982.
4. Having completed investigation, the police submitted a charge-sheet against the appellant in the Court of Judicial Magistrate. The learned Magistrate having found the offence exclusively triable by the Court of Session, committed the case to the Court of Session.
5. The learned trial Court, on the basis of evidence and material collected during investigation, framed charge against the appellant for offence under Sections 376, IPC. The appellant denied the charge and claimed trial.
6. In order to prove its case, the prosecution examined as many as 11 witnesses and got exhibited some documents. The accused was then examined under Section 313, Cr. P.C. In his explanation, the accused stated that he has been falsely involved in the instant case, inasmuch as it was Panraj who was busy in performing sexual intercourse with the prosecutrix. In his defence, the appellant examined D.W. 1 Ramlal and D.W. 2 Raghunath.
7. At the conclusion of trial, the learned trial Judge found the prosecution case, as alleged proved and accordingly convicted and sentenced the appellant in the manner stated hereinabove. Hence the present appeal against conviction.
8. I have heard learned Counsel for the parties and perused the impugned judgment, the evidence and material on record.
9. In assailing the conviction, the first contention raised by Mr. Gupta, learned Counsel for the appellant is that the FIR has been lodged with an inordinate delay for which the prosecution has not offered any explanation, much less satisfactory explanation. According to him the incident alleged to have taken place at 12.00 noon on 14-3-1982, whereas the matter was reported to the police at 5.00 p.m. and as such there was considerable unexplained delay of 5 hours, which is fatal to the prosecution case.
10. I have given my anxious consideration to the above submissions. Having scanned the evidence and material on record, it appears to me that there was no delay in informing the police about the incident. If at all there was any delay, the prosecution has well explained the same. The incident took place at 12.00 noon in the forest while prosecutrix was busy in making bundle of grams in her field. After commission of offence, she proceeded to her house. Having reached home, she disclosed the incident to her brother and thereafter she and her brother informed the police and lodged the oral report. P.W. 4 Bala Onkar, brother of the prosecutrix has deposed, his sister disclosed the entire story and thereafter he waited for his family members because his father had gone out. His father, who was sick, returned from Mandawar Hospital at 1,00 p.m. The prosecutrix also narrated the incident to his father. Thereafter, since his father was ill, he alone took his sister to Police Station and lodged the report. Thus, in my considered view, there cannot be said to be any delay in lodging the FIR. However, it is well settled that it is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course, a prompt and immediate lodging of FIR is ideal as that would give the prosecution a twin advantage. First is, that it affords commencement of the investigation without any time lapse and secondly, it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR, the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
11. Learned Counsel next argued that the learned trial Court has fallen into serious error in basing conviction of appellant solely on the testimony of the prosecutrix, which is unreliable and not worthy of credence. Referring the statement of prosecutrix, learned Counsel vehemently argued that she has contradicted herself on material aspects of the matter. That apart, her testimony does not stand in corroboration with any other evidence, including the medical evidence. According to the learned Counsel, the statement of the prosecutrix if read as a whole, it does not inspire any confidence. Learned Counsel further submitted that the trial Court itself has discarded the evidence of the prosecutrix on various counts, yet it has convicted the appellant. In this background, learned Counsel submitted that judgment impugned in this appeal is liable to be set aside.
12. I have given my thoughtful consideration to the above argument. 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 vital 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.
13. 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 ?
14. The prosecutrix in her statement has deposed that accused Jawahari Lal and Babu came to her and made her to fall on the ground. Thereafter, Jawahari committed rape on her. He also caught her breasts, which resulted in causing abrasions. She further stated that one hook of her blouse had also broken. Witness Panraj had reached the place of incident on hearing her cries. She deposed that she was married to Banwari Lal of village Molkhya about 4 years back. Her 'Gauna' had taken place after the present incident. In cross-examination, the prosecutrix stated that both the accused slapped her and made her to fall on the ground. Witness Panraj was watching the happening while standing at some distance. When accused was committing the offence, witness Panraj had also raised an alarm as to what were they doing. Panraj had raised alarm 5-10 times. The prosecutrix has specifically denied the suggestion that she has falsely involved accused Jawahari and Babu since they had seen her and Panraj being involved in performing sexual intercourse and also apprehending that they might disclose this fact in the village, P.W. 7 Panraj has deposed that having heard cries of prosecutrix, he reached the place of incident and found accused Jawahari and Babulal running. This witness has also denied the suggestion that the accused had seen him performing sexual intercourse with the prosecutrix. Likewise, P.W. 4 Bala Onkar, brother of the prosecutrix has also denied the suggestion of false implication of the accused on the ground that they had seen Panraj performing sexual intercourse with the prosecutrix and they might disclose the above fact in the village. The witness further stated in specific terms that it is wrong to say that any Panchayat meeting had convened in the Sunday night and that Panchayat had imposed fine of Rs. 500/- on Panraj and his father Jagannath, after having found Panraj guilty of committing rape on the prosecutrix. Similar is the statement of P.W. 5 Jagannath.
15. There is no rule of law that testimony of a victim of rape cannot be accepted without corroboration in material particulars. A victim of rape stands on a higher pedestal than an injured witness. Having scanned the evidence, 1 do not find any difficulty to accept the version of the prosecutrix or any reason to disbelieve or discard the testimony of the prosecutrix. The discrepancies in the statement of prosecutrix as pointed out by the counsel for the appellants as regards the incident having been witnessed, in my considered view, are minor in nature, which cannot be said to have an adverse effect on the prosecution case, more particularly when the evidence of prosecutrix stands in corroboration with other important circumstances brought on record. The site-plan, Ex. P. 8 indicates that there were five broken pieces of bangles at the place of incident. The description of site plan, Ex. P10 reveals that that stems of Grams were lying crushed. The seizure memo (Ex. P. 9) of blouse and 'Ghaghari' of the prosecutrix reveals that hook of the blouse was broken and that there were spots of swab on 'Ghaghari' at four places. The FSL report, Ex. P. 16 mentions the presence of human semen on the Ghaghari and vaginal swab of the prosecutrix. The medical report, Ex. P15 also reveals that there were marks of violence, inasmuch as three injuries including abrasion on upper aspect of right breast were found.
16. Learned Counsel for the appellant further argued that the medical report does not at all support the version of the prosecutrix that she was ravished by the accused. Referring the medical report, Ex. P15 and the statement, of P.W. 11 Dr. Shiv Chandra Mishra, learned Counsel argued that there was sign of old rupture of hymen and two fingers could be introduced in vagina. No injury was found on vagina. The doctor also did not find any sign of sexual intercourse on the vagina of the prosecutrix. In this background, learned Counsel submitted that it cannot be believed that prosecutrix was ravished, inasmuch as she was virgin but was habitual to sexual intercourse. Learned Counsel further argued that medical evidence belies the statement of the prosecutrix that her 'Gauna" had taken place after the incident, meaning thereby that she was not at all accustomed to sexual intercourse prior to the incident. However, the medical evidence, as stated above, clearly suggests that prosecutrix was habitual to sexual intercourse.
17. I have considered the above argument. Whether the prosecutrix was a lady of easy virtue or that she was previously accustomed to sexual intercourse, is not a determinative question. On the contrary the question which was required to be adjudicated upon was did the accused commit rape oil the victim on the occasion complained. Even if the victim in the case at hand has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to any one and every one because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.
18. Lastly, Mr. Gupta, counsel for the appellant has contended that the learned trial Court has wrongly disbelieved the defence of the accused. The appellant has been able to prove by adducing evidence that in fact it was prosecution witness Panraj who was found to be in compromising position with the prosecutrix. D.W. 1 Ramlal has stated that on the day of incident while he was guarding his field, the prosecutrix came at her field at about 12 noon/1.00 p.m. and 10-5 minutes after her reaching, Panraj also came at her field, which gave rise to suspicion. On seeing, the witness found that Panraj was performing sexual intercourse with the prosecutrix. According to this witness, both the accused were present at the field of accused Jahawari. According to this witness, some dispute was going on between the fathers of Panraj and accused Jawahari Lal. Similar is the statement of D.W. 2 Raghunath, who has deposed that he was also guarding his field. At about 12-1.00 p.m. he saw Panraj performing sexual intercourse with the prosecutrix.
19. I have considered the above argument. Suffice it to observe that defence story as has been introduced does not appear to be plausible. All the prosecution witnesses including the prosecutrix herself have denied the suggestion that it was Panraj who was found to be involved in performing sexual intercourse with the prosecutrix and having seen the incident by accused Jawahari Lal and Babu, she has falsely involved both of them. Undoubtedly, flashing news of sexual assault on a lady by any person is bound to give bad name to the victim and therefore, it is beyond imagination as to why victim of rape would save the real offender and name some innocent in such a heinous offence, more particularly when nothing has brought on record which could lead to infer false implication of the appellant. In my considered view, no woman would like to make an allegation of she being ravished by any person, by putting her entire future at stake. D.W. 1 Ram Lal has stated that some case was pending between father of Panraj and father of accused Jawaharilal. However, in cross-examination the defence witness was not able to state as to where the case was going on. He then stated that he had disclosed this fact to the police, but the police did not record his statement. Another defence witness Raghunath (D.W. 2) has stated that he had seen Panraj in compromising condition with the prosecutrix. However, in cross-examination, the witness stated that it was only after the police came that he knew that report was lodged against Jawahari and Babu. The witness stated that he neither went to police to disclose the truth nor did he inform this fact to the Sarpanch. This defence witness has not stated anything about pendency of any case as stated by D.W. 1 Ramlal. There was no suggestion to the prosecution witnesses that D.Ws. 1 and 2 saw Panraj and prosecutrix in compromising position. Therefore, the defence, in my considered view, appears to be an afterthought. The suggestion to the prosecution witnesses was to the effect that accused saw Panraj and the prosecutrix in compromising position and the prosecutrix apprehending the disclosure of above fact by them in the society persuaded her to lodge a false report against the appellant and Babu, while the defence evidence is to the effect that D.Ws. 1 and 2 saw the prosecutrix and Panraj in compromising position and at that time, the appellant and Babu were at the field of appellant. If the reason of lodging a false report is accepted as true then the prosecutrix should have implicated D.Ws. 1 and 2 in a false case of rape because they had seen her and Panraj in compromising position. For the reasons, therefore, the learned trial Court has dealt with the defence story at considerable length and in my view has rightly disbelieved it, inasmuch as the defence version appears to be afterthought and further nothing has come on record so as to infer false implication of the appellant. That apart, if at all there was any enmity, it was in between P.W. 5 Jagannath, father of Panraj on the one hand and father of appellant Jawahari Lal on the other and, therefore, there appears to be no reason as to why the prosecutrix, a married lady would falsely involve the appellant in order to save or help Panraj and that too, by putting her reputation and entire future at stake.
20. From what has been observed above, it must be concluded that the prosecution has been able to establish beyond doubt that the prosecutrix, was subjected to forcible intercourse by the appellant. Hence the impugned judgment of the trial Court calls for no interference and deserves to be maintained,
21. Resultantly, this appeal fails and is hereby dismissed. The judgment of the trial Court convicting the appellant under Section 376, IPC impugned in this appeal and the sentence awarded to him is maintained. The appellant is on bail. His bail bonds are cancelled. He is directed to surrender himself before the trial Court to undergo the sentence awarded by the trial Court and affirmed by this Court. In case of failure on the part of appellant to surrender himself, the trial Court shall proceed in accordance with law to ensure his arrest so that he could be sent to jail to serve out the sentence.