State Of Rajasthan vs Mahaveer Singh on 13 December, 2001

Rajasthan High Court
State Of Rajasthan vs Mahaveer Singh on 13 December, 2001
Equivalent citations: RLW 2003 (1) Raj 468, 2002 (4) WLC 445, 2002 (4) WLN 597
Author: Garg
Bench: S K Garg


JUDGMENT

Garg, J.

1. This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 20.7.87 passed by the Learned Additional Sessions Judge, Bhilwara by which the learned Additional Sessions Judge acquitted the accused respondent for offence under Section 376 and 342 I.P.C.

2. This appeal arises in the following circumstances:

(i) On 6.4.86 at about 3 a.m. P.W. 2 Ladu W/o Bheru (hereinafter referred to as the Prosecutrix) lodged a written report Ex.P/1 with the Police Station Kachhola, District Bhilwara stating that on 5.4.86 at about 3 p.m. when she was in the house of Sita Ram Khatik and was going some labour work of lime, the accused respondent came there and stopped her near the gate and after closing the door, caught hold of her hand and thereafter committed rape with her. After hearing her cries P.W. 3 Mst. Nandu came there and seeing her, he ran away.

3. On this report police chalking out regular FIR Ex.P/1 and started investigation.

4. During investigation, the accused respondent was got arrested through Fard Ex.P/3 on 8.8.86 and medical examination of the prosecutrix was got conducted and her medical examination report is Ex.P/14.

5. After investigation challan was filed by the police against the accused respondent in the Court of Magistrate, from the where it was committed to the Court of Sessions Judge, Bhilwara, from where it was transferred to the court of Additional Sessions Judge, Bhilwara.

6. On 26.9.86 the charges for offence under Sections 376 and 342 I.P.C. were framed against the accused respondent who pleaded not guilty and claimed trial.

7. During trial, as many as 14 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under Section 313 Cr. P.C. and no witness was examined in defence.

8. After conclusion of the trial, the learned trial Judge acquitted the accused respondent for offence under Sections 376 and 342 I.P.C. through his judgment and order dated 20.7.87 inter alia holding :

(i) That what was done by the accused appellant was with the tacit consent of P.W. 2 Ladu.

(ii) Further more in coming to the conclusion that there was consent of the prosecutrix in having sex with the accused respondents, the learned Additional Sessions Judge has assigned so many reasons at page 5 of the judgment and he has also placed reliance on Ex.D/1, an affidavit dated 22.5.86 submitted by PW. 2 Ladu herself.

9. Aggrieved from the said judgment and order of acquittal dated 20.7.87 this appeal has been filed by the State of Rajasthan.

10. In this appeal, the learned Public Prosecutor has argued that the findings of learned Judicial Magistrate by which he acquitted the accused respondent are erroneous one and they should be set aside and his state appeal should be allowed.

11. On the other hand, the learned counsel for the accused respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call any interference by this Court.

12. I have heard both and perused the record.

Burden of Proof

13. 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.

14. Apart from this, if the victim is unwilling to yield to sexual intercourse, she is expected to receivs some injuries on her person. Absence of injury on her person generally gives rise to an inference that she was consenting party to coitus. Absence of injuries on the prosecutrix or the accused shows that the prosecutrix did not resist. But absence of injuries is not by itself sufficient to hold that the prosecutrix was consenting party.

15. There is also no dispute on the point that corroboration of testimony of the Prosecutrix in a rape case is not required as a rule of law, but corroboration should ordinarily be required in a case where woman has attained majority and who is habitual to sexual intercourse as in such cases, there is likelihood of her having levelled such accusation on account of self-preservation.

16. PW. 2 Smt. Ladu has admitted following facts in her cross- examination :

(i) That she is a married lady.

(ii) That she did not receive any injury.

(iii) That she was put on the ground by the accused respondent slowly and not by force.

(iv) That when she was seen by P.W. 3 Mst. Nandu, she cried, but at that time, the accused had discharged himself.

(v) That she did not make any complaint about this incident to anybody and complaint, if any, was made by P.W. 3 Mst. Nandu.

(vi) That on the affidavit Ex.D/1, she has put her thumb impression.

17. P.W. 3 Mst. Nandu has been declared hostile, but in the cross-examination, she has admitted that when she saw both, they were sleeping together, but later on, she said that F.W. 2 Ladu was lying on the ground and upon her body accused respondent was lying and she was told by P.W. 2 Ladu that she was in the company of accused respondent for more than 2 hours etc.

18. P.W. 6 Mst. Ladi who is mother-in-law of the prosecutrix P.W. 2 Ladu has been declared hostile.

19. From the above evidence, it appears that the prosecutrix was consenting party from the very beginning, if P.W. 2 would have been unwilling to sexual intercourse, she would have received injuries on her person. Absence of injuries on the person of the prosecutrix as well as on the person of the accused respondent is another factor which negatives the allegation of rape and also shows that she was consenting party. The fact that she was in the company of the accused respondent for about 2 hours itself goes to show that what was being done between the two, it was being done with the tacit consent of the prosecutrix.

20. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon’ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant v. State of Karnataka (1), may be referred to.

21. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted.

22. In my considered opinion, the judgment of the learned Additional Sessions Judge is based on correct appreciation of evidence and the reasons which has been assigned by the learned Magistrate are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would riot like to disturb the order of acquittal merely on flimsy grounds.

23. Since the learned Additional Sessions Judge has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also given proper weight and consideration is the views of the trial Judge as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Judge as the trial Judge had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the court below.

For the reasons mentioned above, the present state appeal is dismissed after confirming the judgment and order dated 20.7.87 passed by the learned Additional Sessions Judge, Bhilwara.

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