HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Appeal No. 11-A OF 2002 Hem Raj alias Hemu Petitioners State of J&K Respondent !Mr. J. P. Sharma, Adv. ^Mr. S. C. Gupta, AAG. Honb�ble Mr. Justice Mansoor Ahmad Mir Date: 12/08/2009 :J U D G M E N T :
This criminal appeal is directed against the judgment and order dated 12.6.2002
and 13.6.2002 passed by the learned Sessions Judge, Udhampur in File
No.35/Session, titled, State vs Hem Raj alias Hemu and others (for short,
impugned orders), whereby and whereunder the appellant came to be convicted and
sentenced for the commission of offence punishable under Section 376 Ranbir
Penal Code (for short, RPC).
Brief facts of the case
One Mst. Pushpa Devi-prosecutrix lodged a report on 8.3.1999 at about 15:30
(3:30 pm) in Police Station Udhampur with the allegation that on 5.3.1999 at
about 8:30 pm she was in her house with her son and two daughters, three
persons, namely, Hem Raj-appellant herein, Mukhtyar Singh and third person, name
not known, asked her whether she was having eggs, she replied in negative. They
asked her where her husband was and she replied that he was out of station.
Thereafter, they asked for a chicken, she replied in negative. At that time she
was preparing meal in the kitchen. All the three persons entered into her house
with criminal intention, appellant-Hem Raj caught hold of her, laid her on the
floor of the room and raped her. The other two persons broke the box and took
away Rs.1500/-. Thereafter all the three persons ran away. On her hue and cry,
one Amar Nath came on spot. Her husband returned on 6.3.1999 and she narrated
the entire story to him on the same day. 7th March 1999 was a holiday and on
8.3.1999 she lodged a report in the Police Station. During investigation the
investigating officer recorded the statements of witnesses, effected seizures
and obtained the opinion of medical expert/FSL opinion. The investigating
officer came to the conclusion that only appellant-Hem Raj and Mukhtyar Singh
were involved in the commission of offences, whereas nothing was collected
against the third person. Further, the investigating officer came to the
conclusion that Mukhtyar Singh and the third person had not taken away Rs.1500/-
after breaking the box, but only Mukhtyar Singh had made an attempt to break the
box and to take away the said amount. The appellant and Mukhtyar Singh came to
be arrested. The final report came to be presented before the Chief Judicial
Magistrate, Udhampur, who committed the case to the Court of learned Sessions
Judge, Udhampur-trial court. The appellant-accused No.1 came to be charge
sheeted for the offence punishable under Sections 376 and 458 RPC and Mukhtyar
Singh-accused No.2 came to be charge sheeted for the commission of offences
punishable under Sections 380, 458 and 511 RPC. The accused pleaded not guilty
and claimed to be tried. The prosecution examined 10 witnesses out of 13 cited
in the witness calendar. The prosecution failed to examine PWs 9, 10 and 13. The
trial court vide judgment and order dated 12.6.2002 convicted the appellant-
accused No.1 for the commission of offence punishable under Section 376 RPC and
acquitted him for the commission of offence punishable under Section 458 RPC and
also acquitted Mukhtyar Singh-accused No.2. Thereafter, the trial court heard
the appellant and prosecution on the question of punishment and awarded sentence
against the appellant vide order dated 13.6.2002.
Before arriving at a just conclusion, it is proper to give brief resume of the
prosecution witnesses herein:
PW1 Pushpa Devi has stated that on the date of occurrence she was preparing the
meal and her children were present in the house, whereas her husband was not
there. She came out to fetch water and found accused-Hem Raj, Mukhtyar Singh and
a third person, name not known, present in the compound. Accused-Hem Raj asked
for a chicken, but she told him that she did not have any. Then accused-Hem Raj
caught hold of her and took her inside the house. The other accused caught her
from behind. All the accused laid her in the room, accused-Hem Raj opened and
put off her trouser (salwar) and forcibly raped her. She tried to get rid of and
save herself, but Hem Raj did not allow her to do so and raped her twice. The
second accused did not commit any rape on her and the third person stole away
Rs.1500/- and silver ear rings belonging to her. She made hue and cry, one Amar
Nath, brother of her husband, armed with danda came on spot and the accused ran
away. On the next day she reported the matter to the Numberdar and on the third
day she lodged a report in the police station. She has admitted the contents of
FIR, Parcha illat and seizure relating to Salwar as true and correct and came to
be exhibited as EXPWPD, EXPWPD1 and EXPWPD2 respectively.
PW2-Lal Chand is the husband of prosecutrix. He has deposed that he was not
present on the spot when the alleged occurrence took place.
PW3-Amar Nath has deposed that Pushpa Devi is the wife of his younger brother
Lal Chand. On the date of occurrence he heard noise at about 8 pm. He went there
and found Hem Raj and Pushpa Devi in the house of Lal Chand, Pushpa Devi was
weeping. When he opened the door it was pitch dark and accused-Hem Raj came out
of the room. On inquiry Pushpa Devi told him that accused Hem Raj forcibly
committed sexual intercourse with her. He had only seen accused-Hem Raj in the
said house and none else, Pushpa Devi was sitting on the cot and thereafter he
returned back to his home.
In cross-examination he has stated that the house of accused is located just
three b�zaribsb�/three meters away from the house of Pushpa Devi and his house
is not adjacent to the house of Pushpa Devi, but houses of b�Premub� and
sister of prosecutrix are adjacent to the house of Pushpa Devi. Her sister did
not come on spot. Lal Chand is dealing with liquor and father of accused-Hem Raj
had lodged a report against Lal Chand about the trade of illicit liquor.
PW4-Om Parkash is the witness to the seizure of Salwar, EXPWPD2.
PW5-Smt. Hroli, PW6-Mst. Dewanu, PW7-Mst. Koshalya Devi and PW8-Smt. Shellu are
not the witness to the occurrence.
PW9-Dr. Uma Sharma has deposed that the prosecutrix was brought before her on
8.3.2009, whereas occurrence had taken place on 5.3.1999. She being a married
woman, it was not possible for her to frame a definite opinion regarding rape.
On cross examination she stated that she had not seen the presence of
spermatozoa in vaginal smear.
PW10-Jagdish Singh is the investigating officer, who has recorded the statements
of witnesses and prepared the site plan PXPWJS. He has also seized one lock, a
latch-EXPWAN and Salwar-EXPWPD2.
In cross-examination he has stated that the occurrence had taken place on
5.3.1999, he visited the spot on 14.3.1999 and arrested the accused on
16.7.1999. The complainant had found the alleged stolen articles in her trunk on
the next day.
The trial court acquitted the accused Mukhtyar Singh and also acquitted the
appellant for the offence punishable under Section 458 RPC, but only convicted
him for the commission of offence punishable under Section 376 RPC on the
solitary statement of the prosecutrix.
Dr. Hale C. J. of Australia, said, b�Rape is an accusation easily to be made
and hard to be proved and harder to be defended by the party concerned, though
never so innocent.b�
Keeping in mind the observations supra and the ratio of Apex Court judgments, it
is beaten law of the land that conviction can be based on the solitary statement
of the prosecutrix provided it is truthful and inspires confidence.
In the judgment titled as Ghulam Mohammad Pahalwan vs State, reported in SLJ
1983, J&K, P-175 held that, once the Court is satisfied that the version given
by the prosecutrix is trustworthy, free of blemish and find support from medical
evidence the court need for no other corroboration to record conviction.
Apex Court in the case titled State of Karnataka vs Mapilla P. P. Soopi,
reported in AIR 2004, SC 85, held that corroboration is required when statement
given by the prosecutrix does not inspire confidence and appears not to be free
of blemish.
The Apex Court in the case titled Aman Kumar and another vs State of Haryana,
reported in AIR 2004, SC 1497, held that prosecutrix complaining of having been
a victim of the rape is not an accomplice after the crime. There is no rule of
law that her testimony cannot be acted without corroboration in material
particulars. However, if the Court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it may search for evidence, direct
or circumstantial, which would lend assurance to her testimony.
Keeping in view the entire history of the case right from the lodging of FIR
till the prosecutrix appeared before the Court, it appears that she has changed
her statement in material particulars. The prosecutrix case is shrouded in
doubts for the following reasons:
i. In the FIR the prosecutrix has alleged that accused-Hem Raj, Mukhtyar
Singh and third accused, name not known to her, entered into her house at 8:30
pm when she was cooking food for her children in the kitchen. They asked about
the eggs and chicken, she stated that she did not have any. Thereafter they
enquired about her husband, caught hold of her, accused-Hem Raj laid her on the
floor of the room and forcibly committed sexual intercourse, thereby committed
rape upon her. The other two accused broke the lock of the box and stole away
Rs.1500/-, on her hue and cry, brother of her husband, namely, Amar Nath came on
spot and the accused ran away. The investigating officer, however, found that
the allegations against accused No.3, whose name is not known, were not correct.
He also found that the accused had not stolen away the currency notes, but only
Mukhtyar Singh-accused No.2 had made an attempt. However, when the prosecutrix
appeared before the Court, she made a different story by deposing that she was
preparing meal for her children, came out of her house for fetching water and
found all the three accused in the compound. They asked her about the eggs and
chicken, she replied that she did not have any and, thereafter, they made an
inquiry about her husband, she replied that he was not present in the house.
Thereafter Accused-Hem Raj caught hold of her, the other accused helped him and
laid her on the floor of the room and accused-Hem Raj committed rape on her and
the other two accused stole away Rs.1500/- and silver ear rings belonging to her
after breaking open the lock of the box.
ii. She has also deposed that when she made hue and cry, the neighbours and
Amar Nath came on spot and on noticing him the accused ran away. But Amar Nath
has stated that he heard noise at 8 pm and rushed to the house of his brother.
He opened the door and found accused-Hem Raj and prosecutrix in the house and
prosecutrix was weeping on the cot.
Amar Nath has specifically stated that when he entered her house, he did not see
any other person in the house.
iii. The prosecutrix has specifically stated before the Court that the other
two accused had stolen away Rs.1500/- and silver ear rings. She has no where
stated in the FIR that accused have also stolen the silver ear rings. This she
deposed for the first time before the trial court. The investigating officer
during investigation found that accused-Mukhtyar Singh had not stolen away
Rs.1500/-, but he has stated that an attempt was made by accused-Mukhtyar Singh.
He has categorically stated that no evidence had come forth against the third
accused. The investigating officer while deposing before the Court has stated
that the prosecutrix found the stolen articles in the room on the next day of
alleged occurrence, whereas the prosecutrix has deposed in the Court that
accused Nos.2 & 3 have stolen the said articles after breaking open the lock of
the box. The prosecutrix has stated in the FIR as also deposed before the Court
that she narrated the whole incident to the Numberdar. Why the Numberdar has not
been examined, is not explained by the prosecution. If she reported the matter
to the Numberdar on the next day of alleged occurrence, why she did not make the
report to the police on the very same day, which is only 20 kms away from her
house as per EXPWPD1. Further, why Amar Nath did not lodge report on the same
day, instead of going back to his home and why on the next day he had not
reported the matter to the police or taken any action, which a prudent man would
do after hearing/noticing that some person had raped his relative.
iv. The prosecutrix has specifically stated in the FIR and before the Court
that his son and two daughters were present in the house at the time of alleged
occurrence. Why their statements were not recorded during investigation and why
they were not produced before the Court is also not forthcoming from the record
and has also not been explained by the prosecution.
v. Who closed the door is also not explained by the prosecution. If the
accused would have closed the door, the children of prosecutrix would have
definitely made hue and cry. Amar Nath has only found the accused-Hem Raj in the
house. She has stated that she was laid on the floor of the room, then how she
was sitting on the cot, as stated by Amar Nath when he entered the room on
hearing the noise, is not forthcoming from the record. He nowhere has stated
that he had seen accused-Hem Raj committing the sexual intercourse with the
prosecutrix when he opened the door. He has nowhere stated that the prosecutrix
was not wearing the salwar at that particular point of time. In the given
circumstances it cannot be ruled out that it is not a case of b�consentb�.
vi. The prosecution has failed to explain the three days delay. The medical
report is also not in favour of prosecution. Dr. Uma Sharma has nowhere stated
that she found any injury on any part of the body of prosecutrix not to speak of
private parts. If at all the prosecutrix would have made an attempt to save
herself or would have resisted, then definitely there would have been some
bruises/scratches/injury marks on any part of her body, when the prosecutrix has
specifically stated that the accused opened and put off her salwar and forcibly
committed rape on the floor of the room.
vii. The evidence also discloses that the father of appellant-accused had
lodged a report against the husband of the prosecutrix about the trade of
illicit liquor. It can also be not ruled out that the case is not the outcome of
rivalry.
Apex Court in the case titled Davinder Singh and others vs State of
Himachal Pradesh, reported in AIR 2003 SC 3365, held that when there is delay in
lodging FIR coupled with the fact that there are inconsistencies in the
statement of the prosecutrix, it is not safe to base conviction on the testimony
of prosecutrix.
Honb�ble High Court of Orissa in the case titled Sanya alias Sanyasi
Challan Seth vs State of Orissa, reported in Cr. L. J. 1993, Page 2784, on
similar facts dismissed the prosecutrix case and acquitted the accused.
It is apt to reproduce para-2 of the judgment delivered by the Apex Court
in case titled State of Andhra Pradesh vs Lankapalli Venkateshwarlu, reported in
AIR 2000 SC 3555, hereunder:
b�We have perused the evidence recorded by the trial Court with the
assistance of learned counsel for the parties. Not only has the prosecutrix
given to go-bye to the version, in material particulars, as recorded in the FIR
in her evidence recorded in Court, but, even the medical evidence recorded by
the Doctor b�” P.W. 12 does not at all support the allegations made by the
prosecutrix.
In the given circumstances, the conviction cannot be made basis on the solitary
statement of the prosecutrix without corroboration. The trial court has fallen
in error while holding that without corroboration, the conviction can be made on
the solitary statement of the prosecutrix.
Viewed thus, the appeal is allowed, impugned judgment and order of conviction
and sentence are set aside and the case of prosecution is dismissed. The accused
is, accordingly, acquitted.
Jammu (Mansoor Ahmad Mir)
Dated:12.8.2009 Judge
(Anil)
