Nachhatar Singh vs State

Miss Lalsangliani, a young girl from Mizoram was alleged to have been subjected to rape by the appellant on 27th/28th August, 1979 in a hotel in the city of Jammu when she had accidentally met the appellant herein. Upon trial, the appellant was convicted under Section 376 RFC and sentenced to four years rigorous imprisonment, besides paying a fine of Rs, 200/ and six months sentence upon conviction U/S 349 RPC. Both the sentences were directed to run concurrently.

The material facts leading to the conviction of the appellant and the filing of this appeal are that Miss Lalsangliani was the sister in law of one Dr.

Vinay Joshi, who was posted as Lecturer in Physics department of Jammu University, and she was studying in the 9th class in the Convent School,

Jammu at the relevant time. The prosecutrix is alleged to have abruptly decided on 27th. of August, 1979 to leave the house of her brotherinlaw,

presumably, upon existence of some differences with her sister and sister's husband, and she decided to go to Delhi to her cousin. Instead of going to the Railway Station, she went in the opposite direction and reached Paloura B S.F. Camp allegedly, to meet her friend Miss Izabella Ayyanar.

However, she did not go inside the house of her friend, but met the appellant outside the B.S F. Camp. She is alleged to have told the appellant her story and expressed her intention to proceed to Railway Station for boarding a train to Delhi. Upon the alleged assurance given by the accused, the prosecutrix accompanied him and came to Jewel Chowk, a busy commercial centre in the city of Jammu. After alighting from the auto rickshaw,

the prosecutrix and the accused are stated to have gone inside Mahargja Hotel alongwith the luggage of the prosecutrix, where they hired a room.

The prosecutrix even accepted the offer of the appellant to go for a movie and after enjoying the movie in the Jewel Theatre, they came back to their hotel room, where the appellant is stated to have brought meals for himself and the prosecutrix. The appellant, thereafter, is alleged to have consumed some whisky, bolted the room from inside and, allegedly, raped the prosecutrix. She Claims to have resisted the sexual assault, but after being threatened, she kept quiet. The prosecutrix was kept in the hotel upto 7 p.m., and thereafter taken to the house of the appellant at Bohri about 4/5 KMs away from the hotel. Next morning, she was taken to the bus stand for the purposes of being taken to the railway station, but in the process, Dr. Vinay Joshi came in between and caught hold of the prosecutrix. She raised hue and cry, as a result of which, the people of the area caught hold of the said Dr. Vinay Joshi and subjected him to beating, but after the police reached on the spot the appellant and the prosecutrix were taken to the police station, where she is stated to have lodged the FIR for the commission of offences Under Sections 342,376 and 363

RFC. The prosecution produced Dr. Vinay Joshi, Miss Lalsangliani, Dr. Bimla Sharma, Shri Ghulam Nabi Naib Tehsildar, Shri Abdul Qayoom SI

and Dr. Prithvi Raj Sharma as witnesses. A number of witnesses cited by the Investigating agency were given up without assigning any reason. On the basis of the evidence led in the case, the trial sanjiv Court came to the conclusion that the prosecutrix being above the age of sixteen years, was not in a position to give or without her consent in the matter of sexual assault and that offence U/S 363 RFC was not made out against the

appellant. The Court, however, found that as the sexual intercourse had been committed with the prosecutrix against her consent and that she had been wrongfully confined, the appellant was liable to be convicted and sentenced as stated here in above.

I have heard the learned counsel for the parties and perused the record.

Mr. Bali the learned counsel appearing for the appellant has submitted that as the number of witnesses cited by the Investigating Agency have not been produced, a presumption U/S 114 of the Evidence Act be drawn against the prosecution. The general submission of the learned counsel for the appellant cannot be accepted in as much as it is not the number of the witnesses which is material, but it is the quality and nature of the evidence produced which is relevant However, in specified circumstances, the Court may drawn adverse inferences, where the material evidence is stated to have been withheld. Mr. Bali has specifically referred to the withholding of the production of Captain Ayynar, which, according to him, was a very material witness in the case. The defence had specifically suggested to the prosecutrix that she had been subjected to sexual intercourse by Dr.

Vinay Joshi her brotherinlaw and that this fact had been narrated by her to Captain Ayynar. It was even suggested that Captain Ayynar had effected some compromise between the prosecutrix, her sister and her brotherinlaw. Non production of Captain Ayynar in the instant case has definitely adversely affected the defence. Similarly, non production of witnesses, namely, Suraj Parkash, Ram Dass, Des Raj, Harnam Singh and

Sanjay Sudhan has weakened the case of the prosecution. From the statements of the aforesaid witnesses the court could ascertain the circumstances under which the prosecutrix was, allegedly, supposed to have been subjected to sexual intercourse against her consent. The counsel appearing for the respondentState has not been in a position to satisfy the Court or even give a suggestion regarding the circumstances which prevented the prosecution from producing the aforesaid witnesses in the Court. Non production of the material witnesses may by itself be not a sufficient circumstances to set aside the conviction, but is definitely a factor required to be taken note of alongwith other circumstances of the case.

Rape has been defined to mean when a man commits sexual intercourse with a woman under five circumstances detailed in Section 375 of the

RFC. It is submitted that if the sexual intercourse is committed with a girl of more than 16 years of age against her will or without her consent or with her consent when her consent has been obtained by putting her in fear of death, or of hurt, or under the circumstances narrated in the Section,

would amount to rape. The sexual intercourse may also amount to rape when it is committed with the consent of the woman, but the man knows that he is not the husband, and that her consent has been given because she believed that he was her husband or lawfully married to him. In the instant case, the Court below has found on facts that the sexual intercourse committed with the prosecutrix being against her consent and will amounted to rape, for which the appellant has been convicted and sentenced.

It is no doubt true, that the consent to be given has to follow a consideration of material facts of the case, and can be ascertained from the attending circumstances of the particular case. It has been held a number of times that in rape cases, the burden of proving non consent by the

prosecutrix is on the prosecution. In Pratap Mishra and others vs State of Orissa AIR SC1307 it has been held ""that the consent of the lady is

apparent when the prosecutrix silently aided to have the intercourse with the appellant without putting up any resistance, except shouting and when particularly the prosecutrix was a fully grown up lady. The attending circumstances require to be appreciated to ascertain the consent of the

prosecutrix, including the nodical evidence in appropriate cases"".

In the instant case, it is admitted that the prosecutrix and the complainant were not known to each other. The prosecutrix had left the house of her brotherinlaw after same quarrel had taken place in the family and chosen to leave Jammu for Delhi despite the fact that she was a resident of

Mizoram. It could not be ascertained from the evidence as to what was the name of her relation to whom she was going to Delhi. However,

instead of going to the railway station, the prosecutrix proceeded in the opposite direction to meet her friend at Paloura, who, without meeting her,

came in contact with the appellant and willingly accompained him to a busy commercial centre of the town at Jewel Chowk. The prosecutrix of her own free will and consent is shown to have accompanied the appellant in the room of the hotel where she accepted the meals provided by the

appellant. She also enjoyed a movie with the appellant and, thereafter, accompanied him to his residence at Bobri (Talab Tillo). Why the prosecutrix accompanied the appellant, who was not known to her and shared meals and watched the movie with him, has not been explained ?

When two young man and woman come in contact with each other and occupy a place in a secretive manner, it cannot be said that they have joined together to offer prayers. What is obvious is that the purpose and object must be something else than to just exchange pleasantries and

smiles. The prosecutrix despite allegedly, having been raped did not raise any hue and cry nor did she make any report to the hotel owners and voluntarily accompanied the appellant to his place where he was living in a house alongwith many other familes. The prosecutrix chose to remain

silent, allegedly, under the threat of physical harm to her. What type of threat was given to her and what was the nature of the injury she apprehended has not been explained. It is in the statement of the prosecutrix that she accompanied the appellant, stayed with him, had meals and saw movie with him and, thereafter, was apprehended by her brotherinlaw when she was strolling alongwith the appellant/accused in Vinayak

Bazar, Jammu. Even, at that time she is stated to have not reported either to the persons who had collected there or the police regarding (he alleged assault by the appellant. On the contrary, the proecutrix is shown to have adopted an approach and posture, which resulted in the beating of her brotherinlaw by the common man. It appears, that something unpleasant bad occurred in the family of the brotherinlaw of the prosecutrix,

which forced her to leave his house at odd hours and when she came it to contact with the appellant, she chose to have sexual intercourse with him with her consent, or alternatively did not have any sexual intercourse with the appellant. Mr. Bali has suggested there is a reasonable possibility of the brotherinlaw of the prosecutrix having committed the offence and when she was apprehended he got the appellant roped in the commission of the offence. In support of his submission, he has referred to the statement of Dr. Bimla Sharma, who had suggested that the prosecutrix was subjected to sexual intercourse within the time when the alleged altercation had taken place in the family of Dr. Vinay Joshi, as also when she was in the company of the appellant. Mr. Gandhi the learned counsel appearing for the respondents has submitted that as the appellant has not been in a position to explain the injuries on his person, it should be presumed that he was involved in the act of having committed sexual intercourse with the prosecutrix, which she, allegedly, resisted Mr Gandhi has particularly referred to the injuries of alleged tooth bite on the person of the appellant.

After going through EXPW. PR it transpires that Dr. Prithvi Raj Sharma who examined the appellant bad specifically noted in his certificate ""no

tooth mark has been seen"". The said D)3tor in his statement recorded in the Court on 1041981 had categoiically stated ""as per my examination of

the accused no tooth bite was seen on his body and I have mentioned the same in certificate EXPW. PR"". The prosecution, therefore, had

completely failed to show that there was any tooth bite on the body of the appellant, which could have connected him with the commission of the

crime. The existence of bruises and scratches cannot positively connect the accused with the commission of the crime, because it is admitted that the appellant was an athlete and, in the ordinary course of circumstances, could have received such injuries on his person. It is worthwhile to mention that Doctor Prithvi Raj Sharma has nowhere stated that the accused bad committed any recent sexua1 intercourse. In the certificate

EXPW. PR the said Doctor had not found any injury on the penis of the accused/appellant. No spermatozoa of semen discharge was detected en the public hair of the appellant. The trial Court in order to hold the absence of consent, referred to the statement of Dr. Prithvi Raj Sharma and

found that ""Doctor Prithvi Raj Snarma PW examined the accused and found injury on his upper right. arm, which according to him, could have

been possibly due to tooth bite. The finding of this medical witness supports the statement of the prosecutrix that she resisted the attempt of

accused at the initial stage"". The finding of the learned trial court is contrary to record and the evidence as noticed hereinabove. It may be further

noted that the prosecutrix in her statement had submitted that while she was resisting the attempts of the appellant, her clothes were torn, but despite seizure of these clothes, the prosecution could not prove any torn clothes, which if proved could have connected the accused with the

commission of the crime.

After discussing the aforesaid circumstances, I am, of the opinion, that prosecution has failed to prove beyond any reasonable doubt that the appellant was the person responsible for the commission of offence of rape with the prosecutrix. The circumstances noted hereinabove, make out a case for giving the appellant the benefit of doubt, so far his conviction and sentence U/S 376 RFC is concerned.

Similarly, the conviction recorded U/S 342 RPC is not maintainable, in as, much as the prosecution has failed to prove the ingredients of the offence of wrongful confinement and it has come in the evidence that the prosecutrix herself had accompanied the appellant and was not prevented from proceeding to any direction as and when she wanted to go.

In the result, this appeal is accepted by setting aside the conviction and sentence imposed upon the appellant vide judgment impugned in this

appeal, after holding him entitled to the benefit of doubt. The bail bonds in the case shall stand cancelled.