Nathu Singh Vs. State of Rajasthan - Court Judgment

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- - devi as well as alleged two eye witnesses pw5 tagaram and pw9 bhikharam is quite unnatural and improbable. 9. that absence of injuries on the person of the accused appellant as well as on the person of the prosecutrix is yet another factor to negative the allegation of rape and to show that the accused appellant had intercourse with the prosecutrix pw8 smt. the medical evidence, which is negative in the present case, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellant.sunil kumar garg, j.1. this is an appeal filed by the accused appellant against the judgment and order dated 2-7-1984 passed by the learned sessions judge, balotra camp banner in sessions case no. 51/83 by which he convicted the accused appellant for the offence under section 376 ipc and sentenced him to undergo five years' rigorous imprisonment and to pay fine of rupees 2,000/-, in default of payment of fine, to further undergo nine months si. the learned sessions judge further directed that in case of realisation of the said amount of fine, rs. 1000/- as compensation be paid to the prosecutrix smt. devi.2. before proceeding further, it may be stated here that this court vide judgment and order dated 14th december, 1999 rejected the appeal of the accused appellant. aggrieved from the said judgment and order dated 14th december, 1999, the accused appellant preferred slp before the hon'ble supreme court, where slp was granted and the case was registered as criminal appeal no. 509/2000. the hon'ble supreme court vide order dated 10th july, 2000 disposed of the said appeal and passed the following order :-special leave granted.after hearing learned counsel for the parties we are of the opinion that the high court ought to have discussed the evidence on record in some detail before deciding the first appeal. without giving any further observations, we set aside the judgment of the high court with a direction that criminal appeal no. 270 of 1984 shall be decided afresh in accordance with law. the appellant will remain on bail pending disposal of the said appeal.3. in the above circumstances, this appeal has again come up before this court.4. the necessary facts giving rise to this appeal, in short, are as follows :-on 9-9-1983 at about 7 pm, pw8 smt. devi (prosecutrix) wife of hazari lodged an oral report before the police station kotwali barmer, district barmer, which was recorded in the rojnamcha ex. p/5, stating inter alia that on 8-9-1983 at about 9 am in the morning she along with her devar pw10 nakhtaram went to the field and at about 10.00 am after getting her three months' child slept, went to the dhani of one moolsingh for taking whey (chhach). it is further stated in the report that after taking whey (chhach) when she was returning, accused appellant met her on the way and caught hold her from the back side (the place where accused appellant caught hold her belonged to one mangal singh and it was the field of bajra of the height of about six feet) and, thereafter, accused appellant put her on the ground and committed rape on her forcibly and when she made hue and cry, her uncle-in-law pw5 tagaram and jeth pw9 bhikharam reached there and on seeing them accused appellant ran away from the scene. it is further stated in the report that after that she went to her house, where she told the whole story to her mother-in-law pw6 dhapu and other members of the family and since her father-in-law pw4 manruparam came late in the night, therefore, report could not be lodged on 8-9-1983 and the same was lodged on the next day i.e. on 9-9-1983.on this report, police chalked out the regular fir ex. p/7 and started investigation.during investigation, pw8 smt. devi (prosecutrix) was got medically examined by pw13 dr. manmohan purohit and her medical examination report is ex. p/9.after usual investigation, police submitted challan against the accused appellant before the court of magistrate and from where the case was committed to the court of session.on 23-11-1983, the learned sessions judge, balotra framed charge against the accused appellant for the offence under section 376 ipc. the charge was read over and explained to the accused appellant. the accused appellant denied the charge and claimed trial.in support of its case, the prosecution examined as many as 13 witnesses and got exhibited many documents. thereafter, statement of the accused appellant under section 313 cr.p.c. was recorded. in defence, three witnesses were produced and some documents were also got exhibited.after conclusion of the trial, the learned sessions judge, balotra vide judgment and order dated 2-7-1984 convicted the accused appellant for the offence under section 376 ipc and sentenced in the manner as stated above holding inter alia that the accused appellant has forcibly committed rape on the prosecutrix pw8 smt. devi and the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under section 376 ipc.aggrieved from the said judgment and order dated 2-7-1984 passed by the learned sessions judge, balotra, this appeal has been filed by the accused appellant.5. in this appeal, the following submissions have been made by the learned counsel for the accused appellant:-1. that the report in the present case has been lodged after 33 hours of the alleged incident and this delay has not been satisfactorily explained and thus, this delay is fatal to the prosecution case and the prosecution case has become doubtful.2. that no reliance can be placed on the alleged eye witnesses, namely, pw5 tagaram and pw9 bhikharam, as they are close relatives of pw8 smt. devi (prosecutrix) and their conduct is improbable as after the alleged incident, pw8 smt. devi did not narrate any story to them, but on the contrary she straightway proceeded towards her house. this conduct of pw8 smt. devi as well as alleged two eye witnesses pw5 tagaram and pw9 bhikharam is quite unnatural and improbable.3. that theory of cries seems to be a later development and an afterthought creation.4. that medical testimony does not support the prosecution case at all, as prosecutrix pw8 smt. devi did not receive any injury either external or internal, though at the place of occurrence there was bajra crop at the height of about 5-6 feet and if rape would have been committed forcibly, some sort of injuries must have been received by pw8 smt. devi (prosecutrix).5. that the statement of pw8 smt. devi (prosecutrix) itself reveals that she was a consenting party and, therefore, no question arises that she was forcibly raped by the accused appellant.hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge under section 376 ipc.6. on the other hand, the learned public prosecutor supported the impugned judgment and order passed by the learned sessions judge, balotra.7. i have heard the learned counsel for the accused appellant and the learned public prosecutor and perused the record of the case.8. before proceeding further, first medical evidence in this case should be discussed.9. pw13 dr. manmohan purohit has examined pw8 smt. devi (prosecutrix) on 10-9-1983, he has proved the medical examination report ex. p/9 of pw8 smt. devi and has come to the following conclusions :-1. that pw8 smt, devi (prosecutrix) is grown up married lady and is habitual of sexual inter-course.2. that no external injury is seen over the body and external genitalia.3. that regarding rape, no opinion can be given.10. there is also no dispute in this case that the alleged incident took place at 11.00 am on 8-9-1983 and report was lodged by pw8 smt. devi on 9-9-1983 at about 7.00 pm.11. from the report ex. p/5 itself, it is also very much clear that alleged two eye witnesses, namely, pw5 tagaram and pw9 bhikharam are uncle-in-law and jeth respectively of pw8 smt. devi.12. before proceeding further, something should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner :-1. that the main evidence in all such cases is that of victim herself.2. that corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. but, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time.3. that corroboration may be by facts and circumstances.4. that the injury on the person of the victim, especially her private parts, had corroborative value.5. that 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 medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.13. in state of punjab v. gurmit singh, air 1996 sc 1393 : (1996 cri lj 1728), the hon'ble supreme court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.14. keeping the above legal aspect in mind, the facts of the present case are being examined.15. pw4 manruparam is the father-in-law of the prosecutrix pw8 smt. devi. he states that on 8-9-1983 at about 4.00 pm he was informed about the alleged incident by his son pw10 nakhtaram. it means that on the date of occurrence i.e. on 8-9-1983 at about 4.00 pm he was at his house.16. pw6 dhapu is the mother-in-law of the prosecutrix pw8 smt. devi. she states that she was informed about the alleged incident by pw8 smt. devi and her husband i.e. pw4 manruparam was not at house and he came on the next day. however, this part of her statement does not tally with the statement of pw4 manruparam.17. pw8 smt. devi is the prosecutrix. she states in her examination that when she was coming having whey (chhah) in her left hand, accused appellant came from the back side and took kuldi from her hand and put it on the earth and, thereafter, he put her on the ground and committed rape on her and, thereafter, when she made hue and cry, pw9 bhikharam and pw5 tagaram came there and seeing them, accused appellant ran away from the scene and she narrated the whole story to her mother-in-law pw6 dhapu and her father-in-law manruparam also came on the same day in the evening. in her cross-examination, she has admitted the following facts :-1. that accused appellant is known to her since her marriage i.e. for the last 3-4 years.2. that accused appellant caught hold of her one hand and, therefore, she could not run away.3. that she did not push him back as the accused appellant caught hold of her hands.4. that crops of bajra fell on the earth, but she did not receive any injury from them.5. that accused appellant took off his clother and kept them on one side and, thereafter, he put her on the ground and committed rape on her.6. that thereafter, she made hue and cry.7. that she saw pw9 bhikhararn and pw5 tagaram at the distance of ten pawra.8. that's how accused appellant ran away from the scene, she could not say.9. that since pw5 tagaram and pw9 bhikhararn themselves have seen the occurrence, there was no need to tell anything to them.10. that her father-in-law came in the night.11. that in her village, there is a police chowki, but no report was lodged at the police chowki and the report was lodged in the thana on the next day in the evening at about 7.00 pm.18. pw5 tagaram states in his statement that he saw accused appellant lying over pw8 smt. devi. he further states that accused appellant, at that time, was wearing clothes.19. pw9 bhikhararn states in his statement that when he reached near the place of occurrence, he saw accused appellant lying over pw8 smt. devi and, thereafter, seeing him, accused appellant ran away and at that time, accused appellant was wearing only underwear (kachha) and no pant. however, pw5 tagaram states otherwise.20. in my considered opinion, looking to the entire facts and circumstances of the case and the medical evidence and the oral evidence consisting of pw8 smt. devi (prosecutrix) itself, pw6 dhapu, mother-in-law of the prosecutrix pw8 smt. devi, pw4 manruparam, father-in-law of the prosecutrix pw8 smt. devi and the alleged eye witnesses, namely, pw5 tagaram and pw9 bhikhararn, this case appears to be a case of consent because of the following reasons :-1. that in the present case, the prosecutrix pw8 smt. devi is a matured lady and she is habitual to sexual intercourse and she knows the accused appellant earlier to the alleged incident.2. that though there was crop of bajra at the height of about six feet at the place of occurrence and she was put forcibly on the ground, but she did not receive any injury and this fact itself goes to show that no forcible intercourse was done with her by accused appellant as stated by pw8 smt. devi.3. that pw5 tagaram and pw9 bhikharam saw prosecutrix pw8 smt. devi lying on the ground and upon her accused appellant was lying and seeing them, accused appellant ran away and this fact goes to show that both pw8 smt. devi and accused appellant were in a compromising position and after seeing them, accused appellant ran away.4. that the fact that accused appellant put off his pant and kept on one side and, thereafter, he put pw8 smt. devi on the ground and committed rape on her, goes to show that it was a case of consent and not of forcible intercourse, otherwise between that period, she could have run away from the scene.5. that the fact that the report on the date of occurrence was not lodged because of the above reasons itself goes to show that it has been later reported and it might be on account of instinct of self-preservation of pw8 smt. devi.6. that no doubt in such cases, if report is not lodged on the same day and lodged on the next day, it is not material and it does not affect the prosecution case, but in the present case, pw4 manruparam, father-in-law of the prosecutrix pw8 smt. devi was present on the date of occurrence and the names of the witnesses, which have been mentioned in the report ex. p/5 are of those persons, who are close relatives of pw8 smt. devi and these factors also go to show that the report has been lodged only because of instinct of self preservation.7. that the fact that her clothes were intact, bangles were not broken and no injury of any sort was found on her outward person itself goes to show that it was a case of consent and not forcible intercourse.8. that looking to the medical evidence which shows that the prosecutrix had been used to sexual intercourse and grown up lady, her statement that she was forcibly raped by accused appellant cannot be accepted as there is no corroboration to her statement and thus, her bare statement cannot be considered sufficient to sustain the accused appellant's conviction.9. that absence of injuries on the person of the accused appellant as well as on the person of the prosecutrix is yet another factor to negative the allegation of rape and to show that the accused appellant had intercourse with the prosecutrix pw8 smt. devi with her tacit consent.10. that consent of the prosecutrix pw8 smt. devi is apparent when she silently abided to have the intercourse with the accused appellant without putting up any resistance and shouting by her is also doubtful as pw5 tagaram and pw9 bhikharam saw pw8 smt. devi lying on the ground and upon her accused appellant was lying. the medical evidence, which is negative in the present case, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellant. from this, the only irresistible inference can be that the prosecutrix was a consenting party which gets support from other circumstances just mentioned above.11. that there are material contradictions between the alleged eye witnesses, namely, pw5 tagaram and pw9 bhikharam over the point as to what clothes were warn by accused appellant at the time of alleged incident. pw5 tagaram says that accused appellant was wearing pant, while pw9 bhikharam says otherwise and on the contrary, statement, of pw9 bhikharam gets tallied with pw8 smt. devi herself on the point that accused appellant put off his clothes and kept on one side and, thereafter, he committed rape on her. it means that when accused appellant and the prosecutrix pw8 smt. devi were found in compromising position, accused appellant was not wearing pant.21. for the reasons stated above, it is held that in the present case, pw8 smt. devi (prosecutrix) was a consenting party and no forcible rape was committed on her by the accused appellant. thus, the findings of conviction recorded by the learned sessions judge cannot be sustained and the accused appellant deserves to be acquitted of the charge under section 376 ipc.in the result, the appeal filed by the accused appellant. nathu singh is allowed and the judgment and order of the learned sessions judge, balotra camp banner dated 2-7-1984 are set aside and the accused appellant is acquitted of the charge under section 376 ipc.since accused appellant is on bail, he need not surrender his bail bonds and his bail bonds stand cancelled.