Judgment:
ORDER
R.S. Thakur, J.
1. This is a jail appeal filed by the appellant Fitta, hereinafter referred to as the accused, challenging the order of conviction passed against him by the Sessions Judge, Kangra Division camp at Chamba, on December 3, 1984, for the offence under Section 376 of the Penal Code, sentencing him to, undergo rigorous imprisonment for a period of five years.
2. The prosecution case before the trial court was that one Smt. Bhutto wife of Abhiya Ram and the accused Fitta belong to two neighbouring villages Patnehar and Chanohta respectively at a distance of about one k.m. front each, other, (probably the village Pantehar is a part of village Chanohta). On May 19,1984, said Bhutto along with other young children of her village like Jarmo and Km/Meenki etc. went to grate their respective cattle in the nearby jungle known as Kunahal At about mid-day, the cattle of the companion graziers of said Smt. Bhutto strayed away and they all then went to bring them back except said Smt. Bhutto who remained at the place where they were all together with her cattle. 'Meanwhile, the accused Fitta Happened to bring his cattle there for grazing and finding that said Smt. Bhutto was alone over there he stealthily went to her, lifted her body on both his arms and then made her lie at a distance of about 10 yards from the place where she was sitting. He then snapped the string of her 'salwar' and in that process also tore a part of the salwar. He then took off his own kachha and subjected said Smt. Bhutto to forcible sexual intercourse. Although said Smt. Bhutto tried to resist the accused at that time but she could not do much as she was in an advance stage of pregnancy of six to eight months. She then raised an alarm shouting 'Bachao-Bachao'. Her companion graziers on hearing her out-cries came to the place of incident when they found that the accused was still in a compromising position With Smt. Bhutto lying over her body. Her companion graziers then threw stones and tree-bark lying over there on the accused to scare him away and when he did not do so they even tried to pull him away from the body of Smt. Bhutto by his coat but to no avail and he left the body of Smt. Bhutto only after he had completed the sex act and while leaving the place of incident, he threatened all those present over there with dire consequences in case any one of them complained to anybody about the incident.
3. Immediately after this incident said Smt. Bhutto put on the torn salwar and went to her house and narrated the entire incident to her husband's mother Smt. Sallo. The husband of said Smt. Bhutto Abiya Ham had gone to work as a labourer and when he returned home in the evening at about 6.00, said Smt. Bhutto again narrated the incident to him as well.
4. Next morning said Abhiya Ram took Smt. Bhutto to the police station at Bharmour where said Smt. Bhutto lodged a report against , the accused as a result of which a case under Section 376 of the Penal Code was registered against him and after investigation the accused was challaned to stand his trial under Section 376, IPC add on the conclusion of the trial, he was convicted by the learned Sessions Judge,: asv stated earlier.
5. With a view to bringing home the offence to the accused the prosecution has examined nine witnesses.
6. Dr. Arun Kapoor (PW-1) who was posted as the Medical Officer, Rural Hospital, Bharmour at the relevant time, examined the prosecutrix after she lodged the report with the police station at Bharmour. He then found linear scratch mark of the left cheek of the prosecutrix and multiple abrasions on both buttocks and the back of thighs. There was no injury either on her body or in her genitals. Two slides of her vaginal smear were taken, but of which one was examined just over there wherein one dead sperm was detected. The other slide was given to the police for examination by the Chemical Examiner whose report was that said slide contained semen. This examination was done on 21-5-1984. In his opinion this was a case of rape after seeing the report of the Chemical Examiner Ex.P.B. He also examined the accused on May 30, 1984 and found that he was capable of committing sexual intercourse. He was also of the opinion that the injuries detected on the buttocks and thighs of the prosecutrix could be caused at the time when she was subjected to sexual intercourse by the accused if it was a hard surface or she was offering resistance while lying on the ground on her back.
7. The next witness, PW-2, is the prosecutrix Smt. Bhutto who has stated that at the relevant time she had gone to jungle Kunahala to graze her cattle along with Kumari Veena, Meenaki, Thano and Jarmo at about mid-day. When they were all sitting at a place known as 'Dhari-do-khabal' it was found that the cattle of her companions had strayed away and they all then went to bring them back again except herself. When she was alone, the accused came there, lifted her bodily to a distance of about ten yards from the place wher she was sitting and threw her on the ground.'As the accused was carrying her, she shouted for her companions, Jarmo, Meenaki etc. shouting 'Bachao-Bachao'. After the accused threw her on the ground he gagged her mouth with her 'chunisnapped the string of her salwar and then subjected her to forcible sexual intercourse after taking off his own kachha.
8. On hearing her out-cries, her companion Jarmo, Meenaki and Ors. came to the place of incident when the accused was still subjecting her to sexual intercourse. Her companions then tried to drive away the accused by throwing stones and trees bark lying over there on the accused and even tried to pull him away but to no avail and the accused left her body only after he had completed the sex act and while going, he also threatened with dire consequences in case any complaint regarding the incident was made by any of them. She further deposed that immediately after the accused left the place of incident, she went back home in the company of one of her companions namely Veena and reported the matter to her husband's mother Smt. Salo, later on when her husband returned home in the evening, she also narrated the entire incident to him. Next day, she was taken by her husband to P. S. Bharmour where she lodged a report against the accused and thereafter she was also medically examined as Bharmour at the instance of the police. Later on the police also visited the place of incident while investigating the case and recovered some pieces of broken angles and the 'gotta' of her 'paranda' (head tail) which had fallen at the time when she was subjected to sexual intercourse by the accused which place was pointed out by her to the police and those pieces of bangles and gotta' were also taken into possession by the police.
9. In cross-examination, she denied that she had seen or knew the accused prior to the day of incident. She also denied the suggestion that prior to the incident she used to meet the accused when he also used to go to the jungle to graze his own cattle and was having intimacy with the accused. She also denied that she was having illicit relations with the accused for four or five months prior to the incident and that she had herself called the I accused to the place of incident to have sexual act with him. She also denied that she reported the matter to the members of her family with regard to this incident in order to save her skin since her companion graziers had seen her with die accused in a compromising' position.
10. Jaram Singh (PW-3) a boy aged 13 years deposed that he was one of the graziers with the prosecutrix and on the day of the incident besides the other three girls, namely, Veena, Meenaki and Thano and when they had all gone to bring back their strayed cattle except the prosecutrix in the jungle, they heard prosecutrix Bhutto raising an alarm and shouting 'Bachao-Bachao' and when they came to the place of the incident on hearing these out-cries, they saw that the accused was on the body of the prosecutrix while her mouth was gagged with her Dupata. They then asked the accused to release the body of the prosecutrix, even threw bark wood pieces upon him and pulled him away by his coat but he did not leave her body and left her only after five minutes. While he was putting on his kachha and going, he threatened that he would kill them in case the incident was disclosed to anybody. The prosecutrix also then put on her salwar and went home with one of the graziers Kumari Veena.
11. Similar is the statement of Kumari Meenaki (PW-4) aged about 13/14 years who was also accompanying the other graziers and the prosecutrix Bhutto in the jungle at the time of the incident.
12. Smt. Salo (PW-5) the mother-in-law of the prosecutrix has deposed that on the day of the incident the prosecutrix came home and while in tears she disclosed to her that the accused had subjected her to forcible intercourse in the jungle at about 2 or 2.30 p.m.
13. Abhiya Ram (PW-6) the husband of the prosecutrix has stated that on the day of incident he had gone to do his routine labour work and when he came home in the evening at about 6 p.m. he found that his wife the prosecutrix was weaping and she then disclosed to him that the accused had subjected her to forcible sexual intercourse in the jungle when he even snapped the string of her salwar and party tore it. In cross-examination he stated that he knew the accused since his childhood. He denied that he knew that his wife was having love-affairs with the accused and, therefore, he falsely implicated him.
14. Gurdev (PW-7) is the Pardhan of the Gram Panchayat Chanohta who has stated that he had joined the investigation of this (se when the police went on the spot and in his presence some broken pieces of bangles and gota thread were taken into possession by the police from the place of incident. The Salwar of the prosecutrix Ex.Pl which she was putting on at the time of the incident was also taken into possession by the police in his presence after putting the articles in the sealed packets.
15. A.S.I. Kanshi Ram (PW-8) has deposed that he arrested the accused on May 30,1984.
16. Dev Raj (PW-9) was the Station House Officer, P. S. Bharmour at the relevant time and he investigated this case. He however, deposed that he tried to search for the accused since May 20, 1984 but he could not be apprehended and was at last arrested on May 30,1984.
17. The accused in his statement under Section 31.3 of the Cr. P.C. has admitted the prosecution evidence on material particular, namely, that he had committed sexual intercourse with the prosecutrix in the jungle at the relevant time. His case, however, was that he was also with the prosecutrix and other graziers in the jungle on the day of the incident and all remained together from 9.00 a.m. till 3.00 p.m. when he and the prosecutrix 'were gossiping and exchanging jokes and later on he also had sexual intercourse with the prosecutrix with her full consent and the story was later on concocted that he broke the string of her salwar or tore it. He also admitted that the prosecutrix was having 6 to 8 months pregnancy at that time. He was again examined by the Court when he admitted that the companion graziers Jaram Singh, Meenki, Thano and Veena had also seen him having sexual intercourse with the prosecutrix and he also further admitted that they tried to drive him away when he was having sexual intercourse with the prosecutrix but he did not leave the body of the prosecutrix till he had completed the sex act with her. He also admitted that soon after this incident the prosecutrix left the jungle and went back to her house in the company of Kumari Veena. Later On, however, he changed his statement and stated on oath in the Court that the companion graziers Jaram Singh, Meenki etc. had not seen him having sexual intercourse with the prosecutrix nor did they make any attempt to drive him away while he was: in compromising position with the prosecutrix and that in fact he had prior intimacy with the prosecutrix.
18. In cross-examination he admitted the suggestion as correct that the prosecutrix Smt. Bhutto met him only once in the jungle and that was on the day of the incident. He also admitted that Smt. Bhutto belongs to Rajput community while he was from Arya caste.
19. The accused has also examined some witnesses in the defence.
20. Chain Lai (DW-1) is the real brother of the accused who has stated that whenever the accused used to fall ill he used to take the cattle for grazing to Kunahal forest in his absence and at that time the prosecutrix used to enquire from him as to where the accused was. To a court question this witness replied that he did not know as to when the prosecutrix was married to Abhiya Ram, then replied that she was married two or two and half years ago. He further stated that he was Arya by caste whereas the prosecutrix Bhutta and her husband were Brahmins.
21. Ludia Ram (DW-3) has stated that one year prior to his deposition in the Court, that is, November 24, 1984 he had seen the accused and the prosecutrix talking to each other at a place known as Jalahoo while they were in their respective fields separated by a boundary wall but did not know as to what they were talking and other persons were also there at that time at some distance. He also stated that the prosecutrix is Brahmin by caste.
22. From the forgoing narration, it becomes apparent that the point that arises for determination in this case is very small indeed. The case of the prosecution is that the accused subjected Smt. Bhutto to forcible sexual intercourse and thus was guilty of having committed a rape on her. The case of the accused on the other hand that no doubt he did have sexual intercourse with the prosecutrix Bhutto at the relevant time that is on May 19,1984 in the jungle Kunahal, but, according to him, it was a voluntary consent on the part of Smt. Bhutto to have sexual intercourse with him and no force or duress was used by him and thus the question is whether on the facts and in the circumstances of the case the accused had forcible sexual intercourse with Smt. Bhutto or it was with her consent? I have given my careful and earnest consideration to this piyotal question and for reasons to, be recorded presently, I am of the opinion that the accused has failed to prove that his sex act with Bhutto was with her consent.
23. In the first place the facts brought on record with regard to the period prior to the act, during the act and subsequent to the alleged act are very much consistent with the commission of the offence of rape and not the sex act based on consent. The evidence on record clearly shows that Smt. Bhutto prior to the act in question was with her companion graziers in the Kunahal forest, namely, Jarmo Kumari, Meenaki and Veena etc. The prosecutrix was left alone there only when her companions went to bring back their cattle. Then there is evidence on record to show that when the accused, finding the prosecutrix alone, came to her stealthily and tried to carry her away in order to subject her to rape, she raised an alarm crying, 'Bachao-Bachao' which was heard by her companion graziers. Her companion graziers then came to the place of occurrence by the time they came, the accused had over-powered the prosecutrix and was in the midst of sex act with her. The companion graziers then tried to drive away the accused by throwing tree barks upon him and even by pulling him away but he resisted and did not leave the body of the prosecutrix till he had completed the sex act. This was even, in his statement under Section 313 of the Cr. P.C., admitted by the accused and it was only later on that, he resiled from this part of the admission that the companions of Smt. Bhutto tried to drive him away and that they had seen him having sexual intercourse with the prosecutrix. Then before he went away from the place of incident, the accused held out a threat that he would kill those of them who would disclose this incident to anybody else.
24. The behaviour of the prosecutrix subsequent to this act is also quite natural and consistent with the rape since immediately after the incident she goes back to her house and reports the matter to her mother-in-law Smt. Sallo who alone was at home. Then when her husband returns home in the evening, she narrates the incident to him as well and both time she was crying while narrating the incident. The very next morning both the prosecutrix and her husband Abhiya Ram (PW 6) then go to the police station at Bharmour which is admittedly 24 or 25 Kms. from their village on foot and lodge a report of the incident in the police station. On May 21, 1984 the prosecutrix is examined in the Rural Hospital at Bharmour at the instance of the police when it was found that she was having abrasions on her hips and the lower portions of her thighs and according to the Medical Officer these injuries could be caused if the prosecutrix was subjected to a sexual intercourse on hard surface and she was trying to resist this sex act. The prosecutrix has categorically stated that she tried to resist the accused at the time of the incident but could not do so on account of her advanced stage of pregnancy. Even the accused has admitted that she was at an advance stage of pregnancy at that time apart from the report of the Medical Officer in this behalf.
25. According to the accused he was having an affair with the prosecutrix for a long time and that even on the day of incident prior to the actual sex act he was in the company of the prosecutrix and other graziers sitting together and at that time he and the prosecutrix were gossiping and even cutting jokes and when they found time to be alone they indulged in the sex act. There does, not, however, appear to be any truth in this statement. Not a suggestion was put to Jaram Singh (PW-3) or Kumari Meenaki (PW-4) or to the prosecutrix when they were in the witness box that the accused was enjoying their company throughout the day prior to the incident while gossiping and cutting jokes with each other. Then according to the accused even prior to the day of incident he was having a love affair with the prosecutrix but a part from this bare statement' there is no factual or circumstantial evidence on record to show that there was any such intimacy between them prior to the incident. Even a suggestion was not thrown when the prosecutrix was in the witness box that she has been meeting the accused off and on and at what places prior to the incident. Admittedly, their residential houses are at a distance of one k.m. from each other and there is nothing on record to suggest that the two families had any social or other relations or even their lands were near each other. Thus it is improbable that they could have met each other prior to the incident. The accused himself admitted in fact that he had met the prosecutrix in the jungle only on the day of incident. It is also clear that the accused is a Arya by caste which admittedly is a schedule caste in that area whereas the prosecutrix Smt Bhutto belongs to Brahmin community. Strangely enough however according to the accused the prosecutrix belongs to Rajput community as stated by him in the witness box whereas the two defence witnesses, the accused produced, out of whom one is his real brother have categorically stated that the prosecutrix belongs to Brahmin community. This shows that not to speak of any intimacy between the accused and the prosecutrix the accused did not even know the caste of the prosecutrix.
In any case the two communities being at two extremities so far as the social status is concerned, such an intimacy cannot be readily presumed without any satisfactory evidence of record which in the instant case is nonexistent. It is also clear that the prosecutrix had been married to Abhiya Ram only If a years prior to the incident and according to the accused he had developed intimacy with the prosecutrix 5/6 months prior to the incident meaning thereby that she developed this affair with the accused just eight months after her marriage to Abhiya Ram which again is highly improbable as then newly married brides rarely develop such love affairs immediately after they go to live with their husbands.
26. According to the accused the prosecutrix had in fact invited him to jungle Kunhal on the day of incident so that she could have sex act with him. This again is highly improbable as a lady in that advanced stage of pregnancy would not indulge into sex act in this manner. There is also another circumstance which militates against the assertion of the consent on the part of the prosecutrix to this sex act. Admittedly, at the time when the accused went to the prosecutrix to have sex act with her, her other companion graziers were away from that place and she was alone. If she was a consenting party to this act they both would have gone to such a place in the jungle where nobody could detect them while having carnal relations whereas in the instant case even the accused had admitted that when these other graziers namely, Jarmo, Meenki etc. came over there they saw them in a compromising position. This means that it was an open place where anybody could see the accused having sexual intercourse with the prosecutrix which is consistent only with the commission of rape as it was only in this situation that he could not take the prosecutrix to a safe place where none could see him doing this act.
27. It is clear that when the accused admitted having subjected the prosecutrix to sexual intercourse and asserted that it was with her consent the burden shifted upon him to prove that he had this sex act with the prosecutrix with her voluntary consent. The accused has, however, miserably failed to prove this. The statements made by the two defence witnesses produced by him are good for nothing and were rightly rejected by the lower court.
28. In view of the above discussion, the appeal fails and the same is dismissed while the judgment of the lower court dated December 3, 1984, is affirmed.