State
of Rajasthan Vs. Biram Lal [2005] Insc 250 (13 April 2005)
B.P.
Singh & S.B.Sinha B.P.Singh, J.
The
State of Rajasthan has preferred this appeal by
special leave which is directed against the judgment of acquittal recorded by
the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.Criminal
Appeal No.86 of 1996 and S.B.Criminal Jail Appeal No.51 of 1996. By its
impugned judgment and order dated March 31, 1999, the High Court while affirming the
conviction of the respondent under Section 450 IPC, acquitted him of the charge
under Section 376 IPC. The sentence under Section 450 IPC was reduced to the
period already undergone. Earlier the trial court had found the respondent
guilty of the offence under Section 376 IPC and sentenced him to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-. Under
Section 450 IPC, the respondent had been sentenced to undergo rigorous
imprisonment for five years apart from payment of fine of Rs.1,000/-.
The
case of the prosecution is that the prosecutrix Smt. Geeta Bai (P.W.1) is a
widow aged about 35 years. Her husband had died a few years before the date of
occurrence leaving behind three children out of whom the eldest being a
daughter had also died. The prosecutrix was working as a labourer at a
construction site and lived in a house along with her children, mother Smt. Sushila
(P.W.2) and brother Mangi Lal (P.W.7). According to the prosecution, on February 2, 1994, the respondent misbehaved with the
prosecutrix in a drunken state but on intervention of Ram Kalyan (PW-9), he was
prevented from causing any harm to the prosecutrix. On the same night, while
the prosecutrix was sleeping in her room along with her four years old child,
the respondent entered the room armed with a knife, threatened her, gagged her
and thereafter committed rape. After that, he ran away. The prosecutrix raised
an alarm attracting to the place of occurrence her mother Smt. Sushila (P.W.2),
another lady Gulab Bai (P.W.3) and her brother Mangi Lal (P.W.7). She narrated
the incident to her mother Smt.Sushila (P.W.2).
She
informed her that she had been raped by the respondent. It is the case of the prosecutrix
that on the following morning, when she was on her way to the police station to
lodge a report, she was intercepted by the respondent who was armed with a gandasi
and who threatened her with dire consequences if she lodged a police report.
The prosecutrix was scared and did not go to the police station and returned
home. After four or five days, it appears that she went to the Superintendent
of Police with a written report but she was directed to lodge the report at the
police station Jawar. Accordingly, the police report was lodged and a case was
registered under Section 450 and 376 IPC. After investigation, the respondent
was put up for trial before the learned Addl. District and Sessions Judge, Camp
at Eklera (Dist. Jhalawar) who held the respondent guilty of the offences under
Sections 376 and 450 IPC.
At the
trial, the prosecution relied upon the testimony of four witnesses to prove the
offence under Section 376 IPC, namely, PW-1 (prosecutrix), PW-2 (her mother Smt.Sushila),
PW-3 (Gulab Bai) and her younger brother PW-7 (Mangi Lal). So far as the
incident which took place earlier that day is concerned, the prosecution also
examined Ram Kalyan (PW-9) who fully supported the version deposed to by the prosecutrix.
The trial court relying upon the testimony of these witnesses found the
respondent guilty of the offence under Sections 376 and 450 IPC. On appeal, the
High Court has set aside the conviction of the respondent under Section 376 IPC
but upheld his conviction under Section 450 IPC while reducing the sentence to
the period already undergone by him.
Learned
counsel appearing on behalf of the State submitted that there is cogent and
reliable evidence on record to prove the commission of the offence punishable
under Section 376 IPC. Apart from the evidence of the prosecutrix herself which
is without blemish, there is also the evidence of PW-2, PW-3 and PW-7 which
clearly establish the case of the prosecution. The High Court has misread the
evidence on record and reached a conclusion which is perverse. She, therefore,
submitted that the respondent should be punished for the offence punishable
under Section 376 IPC.
Learned
counsel appearing on behalf of the respondent supported the High Court's
judgment and the conclusion arrived at by the High Court.
Before
considering the evidence relating to the offence under Section 376 IPC, we may
notice that the High Court has upheld the conviction of the respondent under
Section 450 IPC meaning thereby that the respondent had trespassed into the
house of the prosecutrix on the fateful day in order to the committing of an
offence punishable with imprisonment for life. His conviction under Section 450
IPC has not been challenged before us.
The
evidence of PW-1 is quite clear and categorical. She has deposed about the
occurrence which took place earlier in the day when she was saved by Ram Kalyan
(PW-9) from the respondent, who had come in drunken state and was chasing her
from place to place with a knife in his hand. Later, in the day, she cooked
food for her children and for herself and went to sleep. The respondent entered
her room after lifting the main door and thereafter gagged the prosecutrix and
prevented her from raising an alarm. He thereafter committed rape. He was
carrying a knife with which he threatened her saying that if she raised an
alarm, she would be killed. After the respondent left the place of occurrence,
she raised an alarm and on hearing the alarm, her mother Sushila (PW-2),
another lady Gulab Bai (PW-3) and her brother Mangi Lal (PW-7) along with her
brother's wife Shyam Bai came to her room. By the time they came, the
respondent had run away from her room. PW-1 stated that she had mentioned about
the occurrence to her mother and told her that she had been raped by the
respondent. On the following day, when she was going to the police station to
lodge the report, she had been threatened by the respondent and, therefore, due
to fear she returned. Few days later, she went to the district headquarter at Jhalawar
and gave a written report to the Superintendent of Police, but she was directed
to lodge the report at police station Jawar. Thereafter, she went and lodged
the report at Jawar. It is alleged that the offence was committed on the night
of 5th February, 1994 and the first information report
was lodged at Jawar on 9.2.2004. She was questioned as to whether she had
informed the villagers about what had happened in the night, and her answer was
that as it was night time, she did not inform anybody in the village about the
incident, but she had told all these facts to her mother PW-2 who had come on
hearing her alarm.
PW-2 Smt.
Sushila is the mother of the prosecutrix. She has corroborated the testimony of
PW-1. She has stated categorically that when she went to the room of PW-1, she
was told by her that the respondent had raped her. She claimed to have seen the
respondent running away from the place of occurrence. She has also deposed that
she along with Gulab Bai (PW-3) and the prosecutrix had gone to the police
station Jawar where she lodged the report.
PW-3 (Gulab
Bai) has also supported the case of the prosecution inasmuch as she has stated
that on hearing the alarm, she had run to the room of the prosecutrix along
with the mother of the prosecutrix. About the occurrence that had taken place,
according to this witness, prosecutrix had reported that the respondent had
tried to outrage her modesty. There is hardly any cross-examination of this
witness.
PW-7 (Mangi
Lal) is the brother of the prosecutrix. He has also supported the case of the
prosecution inasmuch as he also states that on hearing the alarm raised by his
sister PW-1, he rushed to her house, but he waited outside the house. He has
deposed that his mother also came with him. He heard his sister telling his
mother that she had been raped by the respondent. He had seen the respondent
running away from the house of the prosecutrix. He had also noticed that the
clothes of his sister were torn and she told him that the respondent had raped
her.
The
trial court accepted the evidence of these witnesses and convicted the
respondent. The High Court has considered the evidence of the prosecutrix. After
narrating the facts stated by her, the High Court proceeded to consider the
other evidence on record with a view to assess to what extent the testimony of
the prosecutrix can be believed. The High Court has not pointed out any
inconsistency or infirmity in the evidence of the prosecutrix which may render
her deposition incredible. However, it sought corroboration of the testimony of
the prosecutrix from the evidence of other witnesses. While testing the
evidence of PW-2, the High Court noticed the deposition of the witness to the
effect that at first, the witness stated that her daughter had told her nothing
about the incident but in the next sentence, she stated that the prosecutrix
had told her that the respondent had committed rape upon her. From this fact
alone, the High Court jumped to the conclusion that the version of the mother
(PW-2) did not support the prosecutrix on the point of commission of any sexual
act by the respondent. The High Court also observed that surprisingly no other
person from the locality reached the house of the prosecutrix. Noticing the
evidence of PW-3 (Gulab Bai), the High Court observed that Gulab Bai (PW-3) had
deposed that the prosecutrix had stated that the respondent had tried to outraged
her modesty. This, according to the High Court, did not support the prosecution
version.
The
evidence of Mangi Lal (PW-7) was rejected by the High Court on the ground that
he did not enter the room of his sister but stood outside . This appeared to
the High Court to be abnormal and unnatural. The High Court further noticed
that after the incident, the prosecutrix had come to the house of this witness
and, thereafter, his mother had gone to the house of Smt.Gulab Bai (PW-3). Gulab
Bai (PW-3) had not stated any such thing in her deposition.
Lastly,
the High Court observed that though the clothes of the prosecutrix were
chemically examined, the prosecution had not produced any evidence on record to
prove the commission of the offence of rape. It is true that Dr.Ramesh Chand
(PW_4) tendered his evidence. But the report of Chemical Examiner with regard
to the clothes, seized and other items sent for chemical examination, was not
produced before the court.
For
these reasons, the High Court disbelieved the case of the prosecution so far as
the charge under Section 376 IPC is concerned. However, the High Court found
the respondent guilty under Section 450 IPC.
With
the assistance of counsel appearing for the parties, we have read the evidence
of PW-1, PW-2, PW-3, PW-7 and PW-9. The evidence of the prosecutrix is free
from any blemish. Even if it required any corroboration, that is forthcoming
from the evidence of PW-2, PW-3 and PW-7. Moreover, the High Court affirmed the
finding that in the middle of the night the respondent had trespassed into the
room of the prosecutrix and upheld his conviction under Section 450 IPC. That
itself strongly supports the case of the prosecution and corroborates the
version of the prosecutrix. In a case of this nature, one would not expect the
medical evidence to significantly improve the case of prosecution or the defence,
particularly when the prosecutrix was examined after several days of the
occurrence, and she was the mother of three children. So far as the report of
the Chemical Examiner is concerned, since the prosecution did not produce the
report, the prosecution is deprived of any corroborative evidence which the
report may have provided. However, we have examined the evidence of the prosecutrix
and three other witnesses. We find no reason to disbelieve the prosecutrix. The
High Court misread the evidence and committed an error of record in holding
that PW-2 (Smt. Sushila), the mother of prosecutrix, did not support the case
of the prosecutrix as regards the commission of offence of rape. We have
referred to her evidence earlier and we find no justification for the High
Court to record such a finding. Without any ambiguity and in clear terms, the
witness stated that she was told by the prosecutrix that the respondent had commited
rape upon her. So far as PW-3 (Gulab Bai) is concerned, she has stated that she
heard the prosecutrix saying that the respondent had outraged her modesty. It
appears to us that the prosecutrix had really reported the matter to her mother
and in this process, this witness may have overheard the conversation.
Therefore, she is not very exact in stating what was stated by the prosecutrix.
We also find nothing in the evidence of PW-7 (Mangi Lal) which is inconsistent
with the testimony of the prosecutrix. If at all his evidence corroborates the
evidence of the prosecutrix inasmuch as he also stated that on hearing her
alarm, he along with his mother rushed to her room but he stood outside the
room while his mother went inside and talked to the prosecutrix.
We,
therefore, find it difficult to sustain the order of acquittal passed by the
High Court in respect of the offence under Section 376 IPC. It is not the law
that in every case version of the prosecutrix must be corroborated in material
particulars by independent evidence on record. It all depends on the quality of
the evidence of the prosecutrix. If the Court is satisfied that the evidence of
prosecutrix is free from blemish and is implicitly reliable, then on the sole
testimony of the prosecutrix, the conviction can be recorded. In appropriate
cases, the court may look for corroboration from independent source or from the
circumstances of the case before recording an order of conviction. In the
instant case, we find that the evidence of the prosecutrix is worthy of credit
and implicity reliable. The other evidence adduced by the prosecution, in fact,
provides the necessary corroboration, even if that was considered necessary.
The High Court on a clear misreading of the evidence on record, acquitted the
respondent of the charge under Section 376 IPC while upholding his conviction
under Section 450 IPC.
We,
therefore, allow this appeal, set aside the order of acquittal passed by the
High Court so far as it relates to offence under Section 376 IPC and sentence
the respondent to undergo seven years' rigorous imprisonment and a fine of
Rs.1,000/-, and in default of payment of fine, to undergo one month rigorous
imprisonment. The State shall take immediate steps to apprehend the respondent
so that he may serve out the remainder of the sentence, after giving to him the
benefit of Section 428 Cr.P.C.
Back