Desh Raj vs State of Himachal Pradesh

Surinder Singh, J.—The appellant filed the present appeal feeling aggrieved by the impugned judgment of conviction passed by learned trial Court in Sessions trial No. 20 of 2011, decided on 7/19.1.2012, whereby he was sentenced to undergo imprisonment under the following Sections as follows:-

The appellant hereinafter to be referred as ''the accused'' was also given the benefit of Section 428 of the Code of Criminal Procedure with respect to the period undergone by him during the investigation and trial.

A. Admitted Facts:

The accused and his brother PW4 Bhav Dev, were residing together in their village separately in the same house. Bhav Dev aforesaid was elder to the accused, both were residing separately in the same house with their separate families. It is proved on record that he used to threaten the accused to leave the land to him and to shift to the house of his parents-in-law, to which he did not agree and it caused bad blood with them.

B. Prosecution Case:

It is alleged that on 23.4.2011, the wife of the accused alongwith her children had gone to her parents'' house and the accused was alone in the house. The prosecutrix was alone in the adjacent room. Her husband PW4 Bhav Dev though used to remain ill, but was not there. Her children had gone to school. Her mother-in-law PW3 Bimla Devi was residing at Mandi in the house of her parents. Around 12 O''clock, prosecutrix was busy in doing the household chores. She was cleaning the utensils, the accused allegedly caught her from her arm, started misbehaving with her, she tried to save herself.

(ii) It is alleged that the accused took out the knife, tied the prosecutrix with "Dupatta", and gagged her mouth with a piece of cloth and raped her.

(iii) In the evening, the prosecutrix did not tell this fact to her husband on his return because of fear as the accused had threatened to kill her husband, but after three days she informed her mother-in-law PW3 Bimla Devi and her own mother PW2 Kamla Devi. Thereafter got drafted complaint on 26.4.2011 Ext. PW1/A and presented to the S.D.M., who sent it to police for the registration of the case on the basis of which formal FIR Ext. PW11/A was registered.

(iv) The prosecutrix was got examined from PW9 Dr. Manju. She did not find any recent injury mark on the body of the prosecutrix. However, there was a linear abrasion 1-1.5 cm on the face, which was 5-7 days old. She issued the Medico Legal Certificate Ext. PW9/B. The prosecutrix is alleged to have changed her clothes on 23.4.2011, therefore, no clothes were preserved. Pubic hair and nails cuttings of the prosecutrix were preserved and sealed. Doctor also took vaginal swabs. The wearing apparels of the prosecutrix were taken in possession by the police on 1.5.2011. These articles were sent for the forensic examination. No blood or semen stains were found on any of the items of the prosecutrix. The report is Ext. PW9/C.

(v) Accused was arrested. He was also got medically examined from PW8 Dr. Pushp Raj on 28.4.2011. He did not find any external injury on the person of the accused. However, his underwear was taken in possession. It did not contain any blood or semen. He was found fit to perform sexual intercourse, Later, the accused was enlarged on bail.

(vi) Police effected the recovery of knife and prepared the site plan Ext. PW11/C of the place of incident.

After completing investigation, the case was presented in the Court for the trial of the accused for the offences punishable under the aforesaid Sections. The accused was accordingly charge-sheeted. He pleaded not guilty and claimed trial.

C. Proceedings Before the Learned Trial Court.

To prove its case, the prosecution examined its witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure and circumstances which were found attendant, were put to him. He denied the allegations in extenso. When called upon to enter his defence, he examined DW1 Karam Singh, a close neighbourer. He stated that the brother of the accused and the prosecutrix had been picking-up quarrels with him and asked him to settle down in the house of his parents-in-law. Precisely, the stand taken by the accused has been that his brother, the husband of the prosecutrix, did not want that he should stay in the same house with him, though separately, rather insisted upon to settle down in the house of his parents-in-law leaving the entire property to him.

The learned trial Court rejected the defence version, while relying upon the statements of the prosecutrix and her husband, convicted and sentenced the accused as aforesaid, hence the present appeal.

D. Contentions Before This Court and Findings:

Shri G.R. Palsra, learned Counsel for the accused vehemently argued that the statement of the prosecutrix is not worth inspiring confidence. It is a concocted case against the accused. He also pointed out the contradictions in the statement of the husband of prosecutrix PW4 Bhav Dev and drawn my attention to the statement of PW3 Bimla Devi, who, allegedly probabilised the defence version. He also pointed-out that the doctor who had examined the prosecutrix stated that the injury on the face was noticed by her on the next day, but there is nothing on record that the prosecutrix was examined even after 27.4.2011. Further that this injury does not synchronize with the incident in question. Learned Counsel also argued that the learned trial Court did not appreciate the above facts and contradictions in the statement of the prosecutrix, which make the statement of the prosecutrix a suspect in the light of admitted facts.

On the other hand, Shri A.K. Bansal, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence, submitted that the statement of the prosecutrix is above-board and no corroboration is required to lend strength to her version. She has given a vivid account of the alleged incident. Further, according to him, knife was brandished to scare her, gagged her mouth with "Dupatta" and committed rape on her. According to him, learned trial Court has rightly appreciated the evidence of the prosecution/accordingly convicted and sentenced him, which requires no interference.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously gone through the evidence on record.

By now it is well settled that if the statement of the prosecutrix inspires confidence it can be safely acted upon without corroboration and corroboration of her version is not a sine quo non, but if her statement is not found above-board, materially contradicts and creates doubt, it would be hazardous to place implicit reliance on her statement and delay in lodging FIR in such circumstances would also be material fact to view it with suspicion. But however, legally, if the occurrence stands proved, the delay in lodging the FIR will be of no consequence. Therefore, delay in lodging the FIR has to be approached in such type of cases with a different angle. Now, I proceed to scan the statement of the prosecutrix with respect to the incident in question whether it is worth inspiring confidence in absence of the supporting material and the effect of delay in lodging FIR.

The prosecutrix stated that she alongwith her husband and the accused resided in one house, but in separate rooms. Her mother-in-law resided at Mandi and father-in-law also resided with them separately in the same house. According to her, on 23.4.2011 she was alone. Around noon she went inside the house. The accused came there, caught hold her from the arms and gagged her mouth with "Dupatta". She could not raise any shout, thereafter she was raped in the kitchen. Her husband returned in the evening, but did not narrate the incident to him as she was afraid of the accused as he threatened to kill her husband. Though, she informed and narrated the incident to her mother-in-law. She filed an application Ext. PW1/A in the Court and was medically examined. She proved her signatures on the M.L.C. But when this part of the statement is examined in the light of the statement of PW3 Bimla Devi, her mother-in-law, I do not find even a fleeting reference in her statement that the prosecutrix had made any allegation about rape. PW3 categorically stated that she was called on 23.4.2011 by the prosecutrix and told her that the accused committed a mischief, but did not tell what type of mischief was committed. Further according to her, next day her son went to the Police Station and she did not accompany them. Later on, her statement was recorded by the police. This statement is in sharp contradiction with the statement of the prosecutrix and also the FIR. The FIR was not lodged on the next day of the alleged incident, rather it was lodged after three days on the basis of complaint Ext. PW1/A. Prosecutrix also admitted that her husband had strained relations with the accused and his father. She did not say that complaint Ext. PW1/A was got dictated by her, but in cross-examination she stated that it was got written at the instance of her husband. Pertinently, when the prosecutrix did not disclose about the incident to her husband, it is not understood on what basis the allegations were made by her husband regarding rape by the accused.

PW4 Bhav Dev, husband of the prosecutrix, stated that he came to know on 26.4.2011 when his wife made a call to his mother, whereas his mother stated that she received the call on 23.4.2011. In examination-in-chief he stated that the application Ext. PW1/A was got written by some one, but in cross-examination he stated that it was got written at Mandi from the Petition Writer at his instance. He stated that all of them deliberated over the matter in the evening. The cross-examination of PW3 Bimla Devi, mother-in-law of the prosecutrix also made a revealing statement that her elder son used to insist upon the accused to leave the land to him and to reside in the house of parents of his wife and that was the basic dispute between the parties. She also stated that similar dispute was going on, on that day. Her daughter-in-law had threatened the accused to falsely implicate him in case the accused did not leave the house. She also stated that her elder son used to pick-up the quarrel with the accused in her presence.

The medical evidence does not support the story of the alleged rape. PW9 Dr. Manju, who had examined the prosecutrix on 27.4.2011, was given the history of alleged rape five days prior to her examination, which comes to 22.4.2011, whereas the positive case of the prosecutrix has been that she was allegedly raped on 23.4.2011. Further, the injury which was alleged to have been found on the face of the prosecutrix was 5-7 days old, but in cross-examination the doctor stated that this abrasion could be caused while performing the household chores and further stated that abrasion on the face was mentioned by her in the M.L.C., on the next day, whereas the prosecutrix was only examined on 27.4.2011 and the MLC was prepared on the same day. She was never produced before the doctor on the next day i.e. on 28.4.2011. Therefore, this injury could also not be connected with the alleged incident nor prosecutrix stated that it was caused during the scuffle.

Further the recovery of the knife and the clothes of the prosecutrix are put-forth for the sake of corroboration, which in the instant case, are materially contradicted by the prosecutrix herself. Till the lodging of FIR she slept with her husband. She stated that she had handed over the clothes on 27.4.2011, whereas according to the Investigating Officer these clothes were taken into possession on 1.5.2011. The sample of semen of the accused was also taken into possession but no semen stains were found on the clothes of the prosecutrix. Thus, on the critical examination of the aforesaid evidence I find that there was an old dispute going on inter se both the brothers and also the prosecutrix. They did not want that the accused should settle down with his family in the same house. Their parents were also residing separately, but they wanted that accused should leave his share unto them and wind up from that place and settle down in the house of his in-laws. Pertinently, PW3 in her statement stated that the prosecutrix had been threatening the accused to falsely implicate him in a case. With this background and on scrutiny of the statement of the prosecutrix and also in the absence of the corroboration in material particulars, the story of alleged rape unfolded by the prosecutrix is not proved in accordance with law. The FIR is the result of deliberation, therefore, the delay is fatal. Hence, the accused deserves to be acquitted for the offences charged by giving him the benefit of reasonable doubt. Consequently, the appeal is allowed and the impugned judgment of conviction and sentence is set aside. The accused/appellant is undergoing the sentence, he be released forthwith in case he is not required in any other case. Registry of this Court is directed to issue release warrants forthwith. The appeal is disposed of. Send down the records.