{"id":99991,"date":"2009-08-12T00:00:00","date_gmt":"2009-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hem-raj-alias-hemu-vs-unknown-on-12-august-2009"},"modified":"2017-10-31T09:48:46","modified_gmt":"2017-10-31T04:18:46","slug":"hem-raj-alias-hemu-vs-unknown-on-12-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hem-raj-alias-hemu-vs-unknown-on-12-august-2009","title":{"rendered":"Hem Raj Alias Hemu vs Unknown on 12 August, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Jammu High Court<\/div>\n<div class=\"doc_title\">Hem Raj Alias Hemu vs Unknown on 12 August, 2009<\/div>\n<pre>       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nCr Appeal No. 11-A OF 2002  \nHem Raj alias Hemu  \nPetitioners\nState of J&amp;K\nRespondent  \n!Mr. J. P. Sharma, Adv.\n^Mr. S. C. Gupta, AAG. \n\nHonb\ufffdble Mr. Justice Mansoor Ahmad Mir    \nDate: 12\/08\/2009 \n:J U D G M E N T :\n<\/pre>\n<p>This criminal appeal is directed against the judgment and order dated 12.6.2002<br \/>\nand 13.6.2002 passed by the learned Sessions Judge, Udhampur in File<br \/>\nNo.35\/Session, titled, <a href=\"\/doc\/861144\/\">State vs Hem Raj<\/a> alias Hemu and others (for short,<br \/>\nimpugned orders), whereby and whereunder the appellant came to be convicted and<br \/>\nsentenced for the commission of offence punishable under Section 376 Ranbir<br \/>\nPenal Code (for short, RPC).\n<\/p>\n<p>Brief facts of the case<br \/>\nOne Mst. Pushpa Devi-prosecutrix lodged a report on 8.3.1999 at about 15:30<br \/>\n(3:30 pm) in Police Station Udhampur with the allegation that on 5.3.1999 at<br \/>\nabout 8:30 pm she was in her house with her son and two daughters, three<br \/>\npersons, namely, Hem Raj-appellant herein, Mukhtyar Singh and third person, name<br \/>\nnot known, asked her whether she was having eggs, she replied in negative. They<br \/>\nasked her where her husband was and she replied that he was out of station.<br \/>\nThereafter, they asked for a chicken, she replied in negative. At that time she<br \/>\nwas preparing meal in the kitchen. All the three persons entered into her house<br \/>\nwith criminal intention, appellant-Hem Raj caught hold of her, laid her on the<br \/>\nfloor of the room and raped her. The other two persons broke the box and took<br \/>\naway Rs.1500\/-. Thereafter all the three persons ran away. On her hue and cry,<br \/>\none Amar Nath came on spot. Her husband returned on 6.3.1999 and she narrated<br \/>\nthe entire story to him on the same day. 7th March 1999 was a holiday and on<br \/>\n8.3.1999 she lodged a report in the Police Station. During investigation the<br \/>\ninvestigating officer recorded the statements of witnesses, effected seizures<br \/>\nand obtained the opinion of medical expert\/FSL opinion. The investigating<br \/>\nofficer came to the conclusion that only appellant-Hem Raj and Mukhtyar Singh<br \/>\nwere involved in the commission of offences, whereas nothing was collected<br \/>\nagainst the third person. Further, the investigating officer came to the<br \/>\nconclusion that Mukhtyar Singh and the third person had not taken away Rs.1500\/-<br \/>\nafter breaking the box, but only Mukhtyar Singh had made an attempt to break the<br \/>\nbox and to take away the said amount. The appellant and Mukhtyar Singh came to<br \/>\nbe arrested. The final report came to be presented before the Chief Judicial<br \/>\nMagistrate, Udhampur, who committed the case to the Court of learned Sessions<br \/>\nJudge, Udhampur-trial court. The appellant-accused No.1 came to be charge<br \/>\nsheeted for the offence punishable under Sections 376 and 458 RPC and Mukhtyar<br \/>\nSingh-accused No.2 came to be charge sheeted for the commission of offences<br \/>\npunishable under Sections 380, 458 and 511 RPC. The accused pleaded not guilty<br \/>\nand claimed to be tried. The prosecution examined 10 witnesses out of 13 cited<br \/>\nin the witness calendar. The prosecution failed to examine PWs 9, 10 and 13. The<br \/>\ntrial court vide judgment and order dated 12.6.2002 convicted the appellant-<br \/>\naccused No.1 for the commission of offence punishable under Section 376 RPC and<br \/>\nacquitted him for the commission of offence punishable under Section 458 RPC and<br \/>\nalso acquitted Mukhtyar Singh-accused No.2. Thereafter, the trial court heard<br \/>\nthe appellant and prosecution on the question of punishment and awarded sentence<br \/>\nagainst the appellant vide order dated 13.6.2002.\n<\/p>\n<p>Before arriving at a just conclusion, it is proper to give brief resume of the<br \/>\nprosecution witnesses herein:\n<\/p>\n<p>PW1 Pushpa Devi has stated that on the date of occurrence she was preparing the<br \/>\nmeal and her children were present in the house, whereas her husband was not<br \/>\nthere. She came out to fetch water and found accused-Hem Raj, Mukhtyar Singh and<br \/>\na third person, name not known, present in the compound. Accused-Hem Raj asked<br \/>\nfor a chicken, but she told him that she did not have any. Then accused-Hem Raj<br \/>\ncaught hold of her and took her inside the house. The other accused caught her<br \/>\nfrom behind. All the accused laid her in the room, accused-Hem Raj opened and<br \/>\nput off her trouser (salwar) and forcibly raped her. She tried to get rid of and<br \/>\nsave herself, but Hem Raj did not allow her to do so and raped her twice. The<br \/>\nsecond accused did not commit any rape on her and the third person stole away<br \/>\nRs.1500\/- and silver ear rings belonging to her. She made hue and cry, one Amar<br \/>\nNath, brother of her husband, armed with danda came on spot and the accused ran<br \/>\naway. On the next day she reported the matter to the Numberdar and on the third<br \/>\nday she lodged a report in the police station. She has admitted the contents of<br \/>\nFIR, Parcha illat and seizure relating to Salwar as true and correct and came to<br \/>\nbe exhibited as EXPWPD, EXPWPD1 and EXPWPD2 respectively.<br \/>\nPW2-Lal Chand is the husband of prosecutrix. He has deposed that he was not<br \/>\npresent on the spot when the alleged occurrence took place.<br \/>\nPW3-Amar Nath has deposed that Pushpa Devi is the wife of his younger brother<br \/>\nLal Chand. On the date of occurrence he heard noise at about 8 pm. He went there<br \/>\nand found Hem Raj and Pushpa Devi in the house of Lal Chand, Pushpa Devi was<br \/>\nweeping. When he opened the door it was pitch dark and accused-Hem Raj came out<br \/>\nof the room. On inquiry Pushpa Devi told him that accused Hem Raj forcibly<br \/>\ncommitted sexual intercourse with her. He had only seen accused-Hem Raj in the<br \/>\nsaid house and none else, Pushpa Devi was sitting on the cot and thereafter he<br \/>\nreturned back to his home.\n<\/p>\n<p>In cross-examination he has stated that the house of accused is located just<br \/>\nthree b\ufffdzaribsb\ufffd\/three meters away from the house of Pushpa Devi and his house<br \/>\nis not adjacent to the house of Pushpa Devi, but houses of b\ufffdPremub\ufffd and<br \/>\nsister of prosecutrix are adjacent to the house of Pushpa Devi. Her sister did<br \/>\nnot come on spot. Lal Chand is dealing with liquor and father of accused-Hem Raj<br \/>\nhad lodged a report against Lal Chand about the trade of illicit liquor.<br \/>\nPW4-Om Parkash is the witness to the seizure of Salwar, EXPWPD2.<br \/>\nPW5-Smt. Hroli, PW6-Mst. Dewanu, PW7-Mst. Koshalya Devi and PW8-Smt. Shellu are<br \/>\nnot the witness to the occurrence.\n<\/p>\n<p>PW9-Dr. Uma Sharma has deposed that the prosecutrix was brought before her on<br \/>\n8.3.2009, whereas occurrence had taken place on 5.3.1999. She being a married<br \/>\nwoman, it was not possible for her to frame a definite opinion regarding rape.<br \/>\nOn cross examination she stated that she had not seen the presence of<br \/>\nspermatozoa in vaginal smear.\n<\/p>\n<p>PW10-Jagdish Singh is the investigating officer, who has recorded the statements<br \/>\nof witnesses and prepared the site plan PXPWJS. He has also seized one lock, a<br \/>\nlatch-EXPWAN and Salwar-EXPWPD2.\n<\/p>\n<p>In cross-examination he has stated that the occurrence had taken place on<br \/>\n5.3.1999, he visited the spot on 14.3.1999 and arrested the accused on<br \/>\n16.7.1999. The complainant had found the alleged stolen articles in her trunk on<br \/>\nthe next day.\n<\/p>\n<p>The trial court acquitted the accused Mukhtyar Singh and also acquitted the<br \/>\nappellant for the offence punishable under Section 458 RPC, but only convicted<br \/>\nhim for the commission of offence punishable under Section 376 RPC on the<br \/>\nsolitary statement of the prosecutrix.\n<\/p>\n<p>Dr. Hale C. J. of Australia, said, b\ufffdRape is an accusation easily to be made<br \/>\nand hard to be proved and harder to be defended by the party concerned, though<br \/>\nnever so innocent.b\ufffd<br \/>\nKeeping in mind the observations supra and the ratio of Apex Court judgments, it<br \/>\nis beaten law of the land that conviction can be based on the solitary statement<br \/>\nof the prosecutrix provided it is truthful and inspires confidence.<br \/>\nIn the judgment titled as Ghulam Mohammad Pahalwan vs State, reported in SLJ<br \/>\n1983, J&amp;K, P-175 held that, once the Court is satisfied that the version given<br \/>\nby the prosecutrix is trustworthy, free of blemish and find support from medical<br \/>\nevidence the court need for no other corroboration to record conviction.<br \/>\nApex Court in the case titled <a href=\"\/doc\/1225508\/\">State of Karnataka vs Mapilla P. P. Soopi,<\/a><br \/>\nreported in AIR 2004, SC 85, held that corroboration is required when statement<br \/>\ngiven by the prosecutrix does not inspire confidence and appears not to be free<br \/>\nof blemish.\n<\/p>\n<p>The Apex Court in the case titled Aman Kumar and another vs State of Haryana,<br \/>\nreported in AIR 2004, SC 1497, held that prosecutrix complaining of having been<br \/>\na victim of the rape is not an accomplice after the crime. There is no rule of<br \/>\nlaw that her testimony cannot be acted without corroboration in material<br \/>\nparticulars. However, if the Court of facts finds it difficult to accept the<br \/>\nversion of the prosecutrix on its face value, it may search for evidence, direct<br \/>\nor circumstantial, which would lend assurance to her testimony.<br \/>\nKeeping in view the entire history of the case right from the lodging of FIR<br \/>\ntill the prosecutrix appeared before the Court, it appears that she has changed<br \/>\nher statement in material particulars. The prosecutrix case is shrouded in<br \/>\ndoubts for the following reasons:\n<\/p>\n<p>i.      In the FIR the prosecutrix has alleged that accused-Hem Raj, Mukhtyar<br \/>\nSingh and third accused, name not known to her, entered into her house at 8:30<br \/>\npm when she was cooking food for her children in the kitchen. They asked about<br \/>\nthe eggs and chicken, she stated that she did not have any. Thereafter they<br \/>\nenquired about her husband, caught hold of her, accused-Hem Raj laid her on the<br \/>\nfloor of the room and forcibly committed sexual intercourse, thereby committed<br \/>\nrape upon her. The other two accused broke the lock of the box and stole away<br \/>\nRs.1500\/-, on her hue and cry, brother of her husband, namely, Amar Nath came on<br \/>\nspot and the accused ran away. The investigating officer, however, found that<br \/>\nthe allegations against accused No.3, whose name is not known, were not correct.<br \/>\nHe also found that the accused had not stolen away the currency notes, but only<br \/>\nMukhtyar Singh-accused No.2 had made an attempt. However, when the prosecutrix<br \/>\nappeared before the Court, she made a different story by deposing that she was<br \/>\npreparing meal for her children, came out of her house for fetching water and<br \/>\nfound all the three accused in the compound. They asked her about the eggs and<br \/>\nchicken, she replied that she did not have any and, thereafter, they made an<br \/>\ninquiry about her husband, she replied that he was not present in the house.<br \/>\nThereafter Accused-Hem Raj caught hold of her, the other accused helped him and<br \/>\nlaid her on the floor of the room and accused-Hem Raj committed rape on her and<br \/>\nthe other two accused stole away Rs.1500\/- and silver ear rings belonging to her<br \/>\nafter breaking open the lock of the box.\n<\/p>\n<p>ii.     She has also deposed that when she made hue and cry, the neighbours and<br \/>\nAmar Nath came on spot and on noticing him the accused ran away. But Amar Nath<br \/>\nhas stated that he heard noise at 8 pm and rushed to the house of his brother.<br \/>\nHe opened the door and found accused-Hem Raj and prosecutrix in the house and<br \/>\nprosecutrix was weeping on the cot.\n<\/p>\n<p>Amar Nath has specifically stated that when he entered her house, he did not see<br \/>\nany other person in the house.\n<\/p>\n<p>iii.    The prosecutrix has specifically stated before the Court that the other<br \/>\ntwo accused had stolen away Rs.1500\/- and silver ear rings. She has no where<br \/>\nstated in the FIR that accused have also stolen the silver ear rings. This she<br \/>\ndeposed for the first time before the trial court. The investigating officer<br \/>\nduring investigation found that accused-Mukhtyar Singh had not stolen away<br \/>\nRs.1500\/-, but he has stated that an attempt was made by accused-Mukhtyar Singh.<br \/>\nHe has categorically stated that no evidence had come forth against the third<br \/>\naccused. The investigating officer while deposing before the Court has stated<br \/>\nthat the prosecutrix found the stolen articles in the room on the next day of<br \/>\nalleged occurrence, whereas the prosecutrix has deposed in the Court that<br \/>\naccused Nos.2 &amp; 3 have stolen the said articles after breaking open the lock of<br \/>\nthe box. The prosecutrix has stated in the FIR as also deposed before the Court<br \/>\nthat she narrated the whole incident to the Numberdar. Why the Numberdar has not<br \/>\nbeen examined, is not explained by the prosecution. If she reported the matter<br \/>\nto the Numberdar on the next day of alleged occurrence, why she did not make the<br \/>\nreport to the police on the very same day, which is only 20 kms away from her<br \/>\nhouse as per EXPWPD1. Further, why Amar Nath did not lodge report on the same<br \/>\nday, instead of going back to his home and why on the next day he had not<br \/>\nreported the matter to the police or taken any action, which a prudent man would<br \/>\ndo after hearing\/noticing that some person had raped his relative.<br \/>\niv.     The prosecutrix has specifically stated in the FIR and before the Court<br \/>\nthat his son and two daughters were present in the house at the time of alleged<br \/>\noccurrence. Why their statements were not recorded during investigation and why<br \/>\nthey were not produced before the Court is also not forthcoming from the record<br \/>\nand has also not been explained by the prosecution.\n<\/p>\n<p>v.      Who closed the door is also not explained by the prosecution. If the<br \/>\naccused would have closed the door, the children of prosecutrix would have<br \/>\ndefinitely made hue and cry. Amar Nath has only found the accused-Hem Raj in the<br \/>\nhouse. She has stated that she was laid on the floor of the room, then how she<br \/>\nwas sitting on the cot, as stated by Amar Nath when he entered the room on<br \/>\nhearing the noise, is not forthcoming from the record. He nowhere has stated<br \/>\nthat he had seen accused-Hem Raj committing the sexual intercourse with the<br \/>\nprosecutrix when he opened the door. He has nowhere stated that the prosecutrix<br \/>\nwas not wearing the salwar at that particular point of time. In the given<br \/>\ncircumstances it cannot be ruled out that it is not a case of b\ufffdconsentb\ufffd.<br \/>\nvi.     The prosecution has failed to explain the three days delay. The medical<br \/>\nreport is also not in favour of prosecution. Dr. Uma Sharma has nowhere stated<br \/>\nthat she found any injury on any part of the body of prosecutrix not to speak of<br \/>\nprivate parts. If at all the prosecutrix would have made an attempt to save<br \/>\nherself or would have resisted, then definitely there would have been some<br \/>\nbruises\/scratches\/injury marks on any part of her body, when the prosecutrix has<br \/>\nspecifically stated that the accused opened and put off her salwar and forcibly<br \/>\ncommitted rape on the floor of the room.\n<\/p>\n<p>vii.    The evidence also discloses that the father of appellant-accused had<br \/>\nlodged a report against the husband of the prosecutrix about the trade of<br \/>\nillicit liquor. It can also be not ruled out that the case is not the outcome of<br \/>\nrivalry.\n<\/p>\n<p>        Apex Court in the case titled Davinder Singh and others vs State of<br \/>\nHimachal Pradesh, reported in AIR 2003 SC 3365, held that when there is delay in<br \/>\nlodging FIR coupled with the fact that there are inconsistencies in the<br \/>\nstatement of the prosecutrix, it is not safe to base conviction on the testimony<br \/>\nof prosecutrix.\n<\/p>\n<p>        Honb\ufffdble High Court of Orissa in the case titled Sanya alias Sanyasi<br \/>\nChallan Seth vs State of Orissa, reported in Cr. L. J. 1993, Page 2784, on<br \/>\nsimilar facts dismissed the prosecutrix case and acquitted the accused.\n<\/p>\n<p>        It is apt to reproduce para-2 of the judgment delivered by the Apex Court<br \/>\nin case titled <a href=\"\/doc\/518166\/\">State of Andhra Pradesh vs Lankapalli Venkateshwarlu,<\/a> reported in<br \/>\nAIR 2000 SC 3555, hereunder:\n<\/p>\n<p>        b\ufffdWe have perused the evidence recorded by the trial Court with the<br \/>\nassistance of learned counsel for the parties. Not only has the prosecutrix<br \/>\ngiven to go-bye to the version, in material particulars, as recorded in the FIR<br \/>\nin her evidence recorded in Court, but, even the medical evidence recorded by<br \/>\nthe Doctor b\ufffd&#8221; P.W. 12 does not at all support the allegations made by the<br \/>\nprosecutrix.\n<\/p>\n<p>In the given circumstances, the conviction cannot be made basis on the solitary<br \/>\nstatement of the prosecutrix without corroboration. The trial court has fallen<br \/>\nin error while holding that without corroboration, the conviction can be made on<br \/>\nthe solitary statement of the prosecutrix.\n<\/p>\n<p>Viewed thus, the appeal is allowed, impugned judgment and order of conviction<br \/>\nand sentence are set aside and the case of prosecution is dismissed. The accused<br \/>\nis, accordingly, acquitted.\n<\/p>\n<p>Jammu   (Mansoor Ahmad Mir)<br \/>\nDated:12.8.2009 Judge<br \/>\n(Anil)<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jammu High Court Hem Raj Alias Hemu vs Unknown on 12 August, 2009 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Appeal No. 11-A OF 2002 Hem Raj alias Hemu Petitioners State of J&amp;K Respondent !Mr. J. P. Sharma, Adv. ^Mr. S. C. Gupta, AAG. Honb\ufffdble Mr. Justice Mansoor Ahmad Mir Date: 12\/08\/2009 :J [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-99991","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Hem Raj Alias Hemu vs Unknown on 12 August, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hem-raj-alias-hemu-vs-unknown-on-12-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hem Raj Alias Hemu vs Unknown on 12 August, 2009 - Free Judgements of Supreme Court &amp; 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