Govind Yadav @ Govinda Vs. State of Rajasthan - Court Judgment

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penal code, 1860 - section 376--rape--evidence of prosecutrix corroborated by medical evidence and the evidence of her mother-in-law--injuries found on the person of prosecutrix as also on the person of the accused suggesting resistance by the prosecutrix--conviction of accused under section 376 liable to be upheld--however, looking to the facts and circumstances of the case sentence of 7 years r.i. of accused reduced to the period of about 5 years already undergone by him. ; appeal partly allowed - labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - - 1. that statement of the prosecutrix pw1 paras gets corroboration from the medical evidence, as in this case both prosecutrix pw1 paras as well as accused appellant received injuries. 2. that statement of the prosecutrix pw1 paras and pw2 chameli are reliable and trustworthy and their statements further get corrobora-tion from the statements of pw3 ram chandra and pw10 heeralal, who reached on the spot just after occurrence. (2) that medical evidence in the present case is not worth reliable and the learned addl. 18. strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks of bruises or scratches about the arms or face and possibly even about his penis, though this is less likely. however great the suspicion against the accused and however strong the moral belief and conviction of the judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. there is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. 22. the statement of the prosecutrix pw-1 paras is fully corroborated by the medical evidence as in the present case not only the prosecutrix pw1 paras had some corroborative injuries on her person, which clearly indicate that she put resistance while she was subjected to sexual intercourse by the accused appellant, but accused appellant has also received injuries, which were caused during resistance put by prosecutrix pw1 paras against the alleged commission of rape by the accused appellant. 23. so far as the argument that prosecutrix pw1 paras has admitted that the report was lodged in writing, but no such written report has been produced, is concerned, it would not affect the case of the prosecution as pw14 jagmohan has clearly stated that the report was lodged orally before him by the prosecutrix pw1 paras and the same was reduced into writing in the shape of ex.garg, j.1. this appeal has been filed by the accused appellant against the judgment and order dated 30.8.1997 passed by the learned addl. sessions judge no. 2, chittorgarh in sessions case no. 106/96 by which he convicted the accused appellant for the offence under sections 454 and 376 ipc and sentenced him in the following manner :-name of accused appellantconvicted u/sec.sentence awardedgovind yadav @ govinda454 ipc1-1/2 years si and to pay a fine of rs. 100/-, in default of payment of fine, to further undergosi for one month.376 ipc7 years' si and to pay a fine of rs. 500/-, in default of payment of fine, to further undergo,si for five months.both the substantive sentences were ordered to run concurrently.2. the facts giving rise to this appeal, in short, are as follows :-on 20.8.1996 at about 11.30 pm, p.w.1 paras (hereinafter referred to as the prosecutrix) aged about 20 years wife of udai lal lodged an oral report ex.p/1 before pw14 jagmohan, who was at that time sho, police station, akola, district chittorgarh, alongwith her mother-in-law pw2 chameli stating inter-alia that at about 10.00 am in the morning accused appellant threatened her and her mother-in-law pw2 chameli went to the police station, akola for lodging the report of that incident. it was further stated in the report by the prosecutrix pw1 paras that since her mother-in-law pw2 chameii had gone to the police station, she was alone in her house and her mother-in-law went to police station after putting a lock on the gate of the pole. it was further stated in the report by the prosecutrix pw1 paras that at about 12.00 noon, accused appellant from the back side of the house of pw6 ambalal entered her house and caughthold her and put her on the cot, which was lying in her room and she resisted, but the accused appellant did not yield to her resistance and he also gave slap to her and by one hand he caughthold her neck and by another hand, he uplifted her patticoat and then he put off her underwear and, thereafter, he committed rape with her. it was further stated in the report that she caught his hair and pushed him back, but with no result and he did sexual intercourse with her against her will and when his semen came out he left her and her lehanga stained with that seman and in making struggle against the alleged act of accused appellant, her bangles were also broken and, thereafter, the accused appellant ran away. it was further stated in the report that when she cried. pw3 ram chandra and pw10 heerlal came and since the outer gate of the house was locked, therefore, they could not enter in her house and in the evening, when her mother-in-law pw-2 chameli came, she narrated the whole story to her mother-in-law pw2 chameli and villagers were also assembled there.on this report, police registered the case and chalked out regular fir ex.p/2 and started investigation.during investigation, site plan ex.p/3 was prepared and through ex.p/5 before pw9 chhaganlal and pw7 mangilal, pw14 jagmohan seized lehanga of the prosecutrix pw1 paras and through ex.p/6 in presence of pw8 bherulal and pw13 om prakash, broken bangles of the prosecutrix pw1 paras were seized by pw14 jagmohan. the accused appellant was arrested on 22.8.1996 through arrest memo ex.p/14. the prosecutrix pw1 paras was got medically examined by pw16 dr. nareshwar and her medical examination report is ex.p/19 and similarly, the accused appellant was also got medically examined by pw16 dr. nareshwar and his medical examination report is ex.p/20.after usual investigation, police submitted challan against the accused appellant in the court of magistrate, from where the case was committed to the court of session.on 17.1.1997, the learned addl. sessions judge no. 2, chittorgarh framed charges for the offence under sections 454 and 376 ipc against the accused appellant. the charges were read over and explained to the accused appellant. the accused appellant denied the charges and claimed trial.during trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. therefore, statement of the deceased appellant under section 313 cr.p.c. was recorded. in defence, four witnesses were produced by the accused appellant.after conclusion of trial, the learned addl. sessions judge no. 2 chittorgarh through his judgment and order 30.8.1997 convicted the accused appellant for the offence under sections 454 and 376 ipc and sentenced him in the manner as indicated above holding inter-alia:-1. that statement of the prosecutrix pw1 paras gets corroboration from the medical evidence, as in this case both prosecutrix pw1 paras as well as accused appellant received injuries.2. that statement of the prosecutrix pw1 paras and pw2 chameli are reliable and trustworthy and their statements further get corrobora-tion from the statements of pw3 ram chandra and pw10 heeralal, who reached on the spot just after occurrence.3. that case of the prosecution is further strengthened by other circumstantial evidence that on lehanga of the prosecutrix pw1 paras, spot of semen was found and fsl report ex.p/18 corroborates that fact and furthermore, on the place of occurrence, broken bangles of the prosecutrix pw1 paras were also found.4. that prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under sections 454 and 376 ipc. aggrieved from the said judgment and order dated 30.8.1997 passed by the learned addl. sessions judge no.2, chittorgarh, this appeal has been filed by the accused appellant.3. in this appeal, the learned counsel appearing for the accused appellant has made the following submissions :-(1) that there are material contradictions in the statement of the prosecutrix pw1 paras and the report ex.p/1, which was lodged by her and furthermore, prosecutrix pw1 paras admits in her statement recorded in court that a written report was lodged, but no written report has been produced and thus, whose prosecution case comes under the shadow of doubt and on this ground alone, the case of the prosecution should be rejected.(2) that medical evidence in the present case is not worth reliable and the learned addl. sessions judge has wrongly placed reliance on the so-called medical evidence.(3) that alleged incident is not being corroborated by other independent witnesses and from this point of view also, the accused appellant is entitled to benefit of doubt.(4) that in case the court comes to the conclusion that the offence charged is proved against the accused appellant, he may be sentenced to the period already undergone by him, as he has remained in laid for more than five years.4. on the other hand, the learned public prosecutor supported the impugned judgment and order passed by the learned addl. sessions judge no.2, chittorgarh.5. i have heard the learned counsel for the accused appellant and the learned public prosecutor and perused the record of the case.6. before proceeding further, first medical evidence of this case has to be seen.7. the medical examination report of the prosecutrix pw1 paras is ex.p/19 and the same has been proved by pw16 dr. nareshwar.8. from perusing the medical examination report ex.p/19 of the prosecutrix pw1 paras, it appears that whole incident as put forward by the prosecutrix pw1 paras in her statement recorded in court, was also narrated by her to pw16 dr. nareshwar and pw16 dr. nareshwar has reduced that incident in the medical examination report ex.p/19. from the medical examination report ex.p/19, it further appears that prosecutrix pw1 paras received the following injuries on her person :-'(1) contusion & scratch marks over the rt. cheek just below rt. eye.(2) four scratch marks over the left side of neck. these are covered with clotted blood.(3) scratches over rt. wrist anteriorly and posteriorly.'9. . pw16 dr. nareshwar, after medically and clinically examining prosecutrix pw1 paras, gave the opinion in the following manner ;-'(1) possibility of rape cannot be denied but sexual intercourse was positively performed.(2) victim's age is more than 20 years.(3) victim had sustained (3) injuries over the body which are of simple in nature and are caused by blunt trauma.(4) her underwear is soiled with semen and is preserved for examination.10. thus, pw16 dr. nareshwar has proved the medical examination report ex.p/19 and from his statement, it appears that prosecutrix pw1 paras received three injuries as mentioned in that report especially on right cheek, neck and wrist.11. pw1.6 dr. nareshwar has also examined accused appellant on 23.8.1996 and found the following injuries on his person :-(1) small lacerated wound over the anterior part of scalp.(2) bite marks over the posterior aspect of left shoulder 4cm x 3cm with teeth marks.(3) two bite marks over the lateral aspects of rt. arm 4cm x 3cm in side with distinct 10 teeth marks in one. puncture marks are covered with black crusts.12. pw16 dr. nareshwar has proved the medical examination report ex.p/20 of the accused appellant and from his statement, it is also clear that accused appellant received injuries on scalp and bite marks were also found on his left shoulder, lateral aspect of right arm etc.13. before proceeding further, it may be stated here that medical examination of a victim plays a very important role while dealing with the cases of rape.14. if the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. the absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. the absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party.15. similarly, it is the duty of the prosecution, if possible, the medical examination of the person charged for the offence under section 376 ipc, should be got done.16. in the cases of commission of rape, if the medical evidence reveals that the accused had injuries on his person caused by finger nails, the nail clippings etc. they have corroborative value.17. bruises upon the arms or the neck may be considered to constitute some evidence of a struggle and impressions of finger nails are also significant. bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. it is important to record these in detail, and to say, if possible, how fresh they are.18. strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks of bruises or scratches about the arms or face and possibly even about his penis, though this is less likely. another aspect of the matter is that where there has been any resistance there is bound to be local injury and marks of violence on the body and the limbs of the victim.19. before proceeding further, something should be said about burden of proof in rape cases.burden of proof20. in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. it is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. the evidence of the prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. however great the suspicion against the accused and however strong the moral belief and conviction of the judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. there is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. the accused is entitled to the benefit of every reasonable doubt.21. in the present case, incident took place on 20.8.1996 at about 12 noon and on the same day the report ex.p/1 was lodged by the prosecutrix pw1 paras alongwith her mother-in-law pw2 chameli and substantial facts were narrated by the prosecutrix pw1 paras in her report ex.p/1 as to in what manner accused appellant committed rape with her.22. the statement of the prosecutrix pw-1 paras is fully corroborated by the medical evidence as in the present case not only the prosecutrix pw1 paras had some corroborative injuries on her person, which clearly indicate that she put resistance while she was subjected to sexual intercourse by the accused appellant, but accused appellant has also received injuries, which were caused during resistance put by prosecutrix pw1 paras against the alleged commission of rape by the accused appellant. thus, the findings of the learned addl. sessions judge that the statement of the prosecutrix pw1 paras gets corroboration from medical evidence are correct one. apart from this, pw3 ram chandra and pw10 heeralal corroborate the statements of the prosecutrix pw1 paras and pw2 chameli to some extent and thus, further strengthened the case of the prosecution on the point of commission of rape by the accused appellant with the prosecutrix pw1 paras.23. so far as the argument that prosecutrix pw1 paras has admitted that the report was lodged in writing, but no such written report has been produced, is concerned, it would not affect the case of the prosecution as pw14 jagmohan has clearly stated that the report was lodged orally before him by the prosecutrix pw1 paras and the same was reduced into writing in the shape of ex.p/1. apart from this, from the statement of the prosecutrix pw1 paras, it is also clear that in the morning accused appellant threatened her and for that incident, pw2 chameli went to the police station to lodge the report and, therefore, the possibility that prosecutrix pw1 paras fell into confusion in her statement cannot be ruled out on the point as to which report the question was being asked to her. thus, this aspect would not at all affect the testimony of the prosecutrix pw1 paras.24. thus, the statement of the prosecutrix pw1 paras is fully corroborated by the medical evidence and this medical evidence has very much corroboration value and furthermore, her complaint to her mother-in-law pw2 chameli and presence of semen on her lehanga and broken bangles further warrants credence to her statement. the statement of the prosecutrix pw1 paras inspires confidence and thus, was rightly believed and relied upon by the learned addl. sessions judge.25. for the reasons stated above, the findings of the learned addl. sessions judge no. 2 chittorgarh convicting the accused appellant for the offence under sections 454 and 376 ipc are liable to be confirmed, as they are based on correct appreciation of evidence and the appeal of the accused appellant against conviction for the said offences is liable to be dismissed.on point of sentence26. the accused appellant was arrested on 22.8.1996 and since then he is in jail and thus, he has been in jail for more than five years.27. looking to the entire facts and circumstances of the case and the fact that victim prosecutrix pw1 paras is a married lady of 20 years of age, if the accused appellant is sentenced to the period already undergone by him, it would meet the ends of justice.accordingly, the appeal filed by the accused appellant govind yadav @ govinda against his conviction for the offence under sections 454 and 376 ipc is dismissed, after confirming the judgment dated 30.8.1997 passed by the learned addl. sessions judge no. 2, chittorgarh.however, on point of sentence, the appeal of the accused appellant is partly allowed in the manner that he is sentenced to the period already undergone by him and the order of sentence dated 30.8.1997 passed by the learned addl. sessions judge no.2, chittorgarh stands modified accordingly.the accused appellant govind yadav @ govinda, who is in jail, be released forthwith, if not required in any other case.