State
of Rajasthan Vs. Munshi [2007] Insc 1085 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
CRIMINAL
APPEAL NO. 928 OF 2001 HARJIT SINGH BEDI,J.
1.
This appeal by way of special leave arises out of the following facts:
2. Munshi,
the respondent herein was charged, convicted and sentenced for an offence
punishable under section 376 of the Indian Penal Code by the Additional
Sessions Judge, Karoli and ordered to undergo rigorous imprisonment for 10
years and to a fine of Rs.1000/- on the allegation that he had, on 18th
September 1994, caught hold of PW5 Raj Kumari when she had gone to the well
outside the village at 3 p.m. to bring water and had thereafter raped her. Raj Kumari
on reaching home narrated the incident to her mother PW3 Sharda and father PW2 Ramesh
on which a report was lodged with the Police by the latter at 6.30 p.m. on the
same day. PW13 S.I. Kamlesh Kumar Sharma then visited the place of occurrence
and observed that the Bajra crop had been trampled upon at the site where the
rape had been committed and also retrieved some pieces of Rajkumari's torn
underwear. A medical examination conducted by PW1 Dr. Nand Lal Sharma revealed
multiple injuries on her body with oozing of blood from her vagina and swelling
and rupturing of her hymen.
The radiological
examination to determine her age indicated that she was above 17 years but
below 19 years of age. The trial court in its judgment dated 5th September 1995
observed that the prosecution story rested on the evidence of Rajkumari herself
and the statements of Swarupi PW4 her grand mother (as Umesh PW6 had been
declared hostile) who had been attracted to the place of incident when she had
shouted for help and had also seen the accused running away after having
committed the assault. It was also observed that the aforesaid evidence had
been corroborated by the statements of Ramesh PW2 the first informant and PW3 Sharda
who deposed that Rajmukari had returned home with bruise and scratch marks all
over and had narrated the entire story. The court relying on the aforesaid
evidence and the circumstance that the torn underwear had been picked up from
the spot, convicted the accused. The High Court however in appeal set aside the
conviction by holding that Rajkumari's story appeared to be unnatural more particularly
as it would have been difficult for her to have been raped at 3 p.m. in the vicinity of the village. It also observed that the
statement of PW4 could not be believed. The court also held that the
prosecution story that the torn underwear which had been picked up by the
police at the time of site inspection was also not believable as the statement
of PW13 K.K. Sharma was discrepant vis-`-vis the statement of Rajkumari on this
aspect. The present appeal at the instance of the State of Rajasthan is before us in these
circumstances.
3. We
are aware of the self imposed limitation which the court must apply while
examining the evidence in an appeal against acquittal and if the High Court has
given cogent reasons in making its order, interference is not called for. We
find, however, that High Court has grossly erred in assessing the evidence and
that the findings recorded are not only wrong but based on a complete
misreading of the evidence. We have accordingly chosen to re-evaluate the
evidence ourselves.
4. It
will be seen that the primary evidence is that of PW5 Raj Kumari, the prosecutrix
herself. She unequivocally stated that she had gone to the well outside the
village at about 3.30
p.m. and had been set
upon by the respondent, carried into the bajra field where her clothes had been
ripped away, and then raped. She also stated that she had been unable to raise
an alarm at the time when the rape was being committed but she had called out
as soon as she was able to do so and that her cries had attracted her grand
mother PW4 and Umesh PW6 and they too had come to the place of incident and
seen the assailant running away.
This
story is corroborated by the evidence of PW-4 as well.
It has
also come in the evidence that after Rajkumari returned home she told her
parents about what had transpired on which the First Information Report had
been lodged without delay and she had also been sent for her medical
examination at 11 a.m. on 19th September 1994 which too indicated fresh marks
and indications of sexual intercourse which had occurred within 24 hours. We
find that the ocular evidence is further corroborated by the fact that the
police officer had picked up (vide seizure Memo EX.P-7) a torn piece of
underwear from the site which matched the underwear that Rajkumari had been
wearing.
This
recovery when read with the evidence that the bajra field had been trampled
upon clearly proves not only the factor of rape but also the place of incident.
5.
Faced with this situation, the learned counsel for the respondent accused has
argued that the facts of this case revealed that the sexual intercourse had
been consensual in nature. We are of the opinion, however, that this submission
is not borne out from the circumstances that are before us. The fact that the
hymen was freshly ruptured and the vagina could take only one finger with
difficulty shows that Raj Kumari was not habituated to sexual intercourse and
had been subjected to intercourse against her will more particularly as in a
case of consent her underwear would not have been found to have been torn. We
are therefore of the opinion that the judgment of the learned Additional
Sessions Judge needs to be restored. We accordingly set aside the acquittal.
6. The
learned counsel for the accused has finally pointed out that the incident had
occurred way back in 1994 and some mitigation therefore in the quantum of
sentence was called for especially as the High Court had found that no case had
been made out against the accused. We accordingly reduce the sentence awarded
by the trial court from 10 years R.I. to 7 years R.I, the other part of the
sentence shall remain as it is.
7. The
appeal is allowed to the above extent.
Back
Pages: 1 2
