Jhali Ram vs State of Himachal Pradesh

Bhawani Singh, J.—Appellant, Jhali Ram, challenges his Conviction by the Additional Sessions Judge, Mandi, in Sessions Trial No. 11 of decided 1986 on 4-5-1987 in a case u/s 376 of the Indian Penal Code. By this judgment, he has been sentenced to undergo rigorous, imprisonment for three years and to pay a fine of Rs. 3000/-

Briefly, the prosecution case is that in the house of Sobha Ram in Village Chaleh on. 21-11-1985, there was a ceremony of amongst the number of people invited on the op, was Banto Devi (11) along with her Brother yed Ram and sister -in law Bimla Devi of village Jaghar. After the dinner, the prosecutrix and her girl friends Purnu, Maina and Kali, cleaned the utensils in the house of Sobha Ram and thereafter these girls started going, one after the other, to the upper storey of the house of Sobha Ram. At this stage, the Appellant came, lifted the prosecutrix in his lap, took her to a distance of 50 yard on the back side of me house and raped her in the darkness, that was there at the place of occurrence.

Further case of the prosecution is that Bimla Devi, the Sister-in-law of me prosecutrix, got information from Kali Devi and went to the place of occurrence. When she reached the spot the accused ran away after leaving the prosecutrix there naked from the lower portion. Since the shalwar of the prosecutrix had become blood stained, shrimatic Bimla Devi brought Anr. Shalwar for the prosecutrix and brought her back to home. This fact was disclosed to Shri Maghu Ram, father of the prosecutrix, on 23-11-1985 when Maina Devi and Kali Devi came home. The father of the prosecutrix contacted the accused and his father but they denied having done, any act with the prosecutrix. After consultation in the family, the matter was reported to the Superintendent of Police, Mandi on 25-11-1985 and a case under sections 363 and 376 of the Indian Penal Code was registered. After that the prosecutrix was medically7 examined and the medical opinion was that there was redness and tenderness on her vagina and the commission of rape was also stated. The Shalwar of the prosecutrix, stained with blood, was taken into possession and sent to the Chemical Examiner. The accused was also medically examined and was found capable of performing sexual intercourse. Finally, after investigation, a challan for the aforesaid offences was filed and the explanation of the accused, u/s 313 of the Code of Criminal Procedure, is that the offence was not committed by him and the same has been initiated by the complainant party due to inimical relations owing to the existence of land dispute between the parties. The accused has, however, admited his presence in the house of Sobha Ram during the ceremoney of Criha Praves. The trial ultimately resulted in the conviction of the accused and the same has been challenged by way of this appeal.

Coming to the material part of the evidence on record, Banto Devi (P.W.3) states that dueing her visit at the house of Sobha Ram in village Chalali in connection with the ceremony of "Criha Pravesh" after taking the dinner, she started cleaning the utensils along with other girls, namely, Kali, Purnu, Mania and Reshma. Thereafter the accused came there and lifted her in his lapp, took her to the back side of the house at a distance of 50 yards in the pitch dark. The accused gagged her mouth and made her lie on the ground. He put his hands on her chest forcibly and then broke open the string of her Shalwar; the accused himself became naked, land upon her and put his sexual organ in her vagina. It gave her severe pain and blood started oozing. It fell on her Shalwar also. The accused committed sexual act for sufficient long time. The accused kept her mouth gagged. When she cried, her Sister-in-law, Bimla, came there and the accused ran away. Her sister-in-law brought Anr. Shalwar for her. She narrated the occurrence to her. Though she was about to walk, but it pained her very much. She narrated the occurrence to her father the next day when he came home and she was taken to Maadi for medical examination''. Her father had given the shalwar (Ex; P.1) to the police during, the investigation on her identification. During her cross-examination she state that there were 24 to25 persons in-the house of. Sobha Ram and all of them stayed in the house for the night she could not tell the name of anyone of them. The challah where they cleaned the utensils is on the back side of the house. The accused carried her out of the house to a distance of 50 yards. The hole of the Shalwar was stained with blood. Girls, namely, Purnu, Maina and Kali never knew about her being carried away by the accused as they had gone to the house prior to her. On the next morning, she took dham in the house of Sobha Ram Where there were 50 to 60 persons. At this time, the accused had not come to the house. The place where the accused committed the act is an open space on the back side of the house where there was challan and the accused did the act in or near the challan. The second Shalwar given to her by her Sister-in-law also became blood stained. The accused A committed sexual intercourse with her for two hours.

Perusal of this statement indicates that the prosecutrix has not given trust worthy accounts of the incident, in case the same had actually happened with her. There are basic inconsistencies and exaggeration in her statement It cannot be easily believed that the accused lifted her and took her 50 yards away and raped, her. She states that she was along with other girls who did not notice her being taken away by the accused there is Anr. inconsistency in her version when she says that the accused gagged her mouth. Then she says that the accused pressed her chest with both hands and committed the sexual act for two house at a place in the same house located in the, verandah. It cannot be believed that the act could be done in the verandah, an open place, frequented by the visitors to the house on such an occasion. Had this act been committed, as she states, it was quite possible for her to raise alarm thereby attracting people who had gathered at the house of Sobha Ram during that time. Further, she states that her Shalwar was soaked with blood, but no blood was found on examination by the Chemical Examiner. Due to these circumstances, it is not possible to believe her version. Besides, she is not only the victim of rape but also a child. Corroboration is, therefore, necessary in this case, 6. Her father, Maghu; Ram (P .W. 2); states that the prosecutrix had stayed in the ''house of Sobha Ram for the night and the next day about 4 P.M. Kali Devi (11) came to his houK and stated that his daughter Banto Devi was not coming home since the accused had abducted her during the midnight and committed sexual intercourse with her. He was also told that the accused had torn the Shalwar of the prosecutrix and it was v. blood stained. He thereafter contacted the accused and his father, Kalu Ram, in their village and asked the accused as to why he had committed such a bad thing with his daughter. The accused admitted having done so and offered her Rs. 100/- as compensation which he refused since he was not hungry of money and the life of his daughter was involved. The accused, though present there at that time, kept silent. On the third day, he parae to Mandi along with his daughter where the matter was reported T (Ex, PB). The police took the blood stained Shalwar of the prosecutrix vide recovery memo. (Ex, PC) which bears his signatures. Shalwar (Ex. p. 1) was packed and sealed. It was the same Shalwar which was worn by his daughter at the time of the occurrence. In cross-examination he states that this occur rence was not narrated to him before the same was disclosed by Kali Devi. His son and daughter-in-law remained in the house of Sobha Ram and when he came to know about this occurrence from Kali Devi, he went to the house of Sobha Ram and the prosecutrix was also there. There were 15 to 20 persons in the house of Sobha Ram at that time and he had not talked with any of them. He came back home, taking the prosecutrix, son and the daughter-in-law. The prosecutrix could come home with difficulty with the support of Ors. .

The statement of the father of the prosecutrix cannot, at all, be believed. He has given a strange account of the incident. It is very difficult to believe what he has said and throws, clear doubt on the prosecution case. It suffers greatly due to major inconsistencies and exaggerations which do not, at all, advance the case of the prosecution; rather it ruins the whole prosecution case. His conduct is thoroughly blame worthy and his version, does not supply corroborative strength to the prosecution case.

Another witness is Bimla Devi (P.W. 4). She is the sister-in-law of the prosecutrix. Her version is equally of ho value. Further, she is an interested witness. She states that she bund: the accused laying, on the prosecutrix and doing sexual intercourse. She tried to catch him but he ran away. She further states that since the Shalwar of Banto Devi was blood stained, she brought Anr. Shalwar and gave it to her and brought her to the house of Sobha. Ram and the prosecutrix narrated her occurrence. It is very difficult to believe that - she went to the spot and found the accused committing sexual- intercourse with the prosesatrix and then her statement that she brought Anr. Shalwar for the use of the prosecutrix since then, one the prosecutrix was wearing was stained with blood- wherefrom this shalwar was brought She belongs to a difllererit village. Even if it, is assumed that she brought some other Shalwar for the prosecutrix, it is in evidence that both the Shalwar were bloodstained, but the Chemical Examiner examined the Shalwar which was handed over to the police by the father of the prosecutrix on her identification but no blood was found on examination of the same. It appears that the story of rape committed on that day of Griha Pravesh ceremony at the house of Sobha Ram has been falsely set-up, since the medical report opines commission of rape, it cannot be denied that the same was committed. What is disputable is when the same was com mitted and by whom? The nature of the injuries found on her person by the doctor further demonstrates that sufficient time had passed between the commission of the crime and the medical examination of the prosecutrix by the doctor. It appears quite doubtful that the accused committed the same in view of the nature of the evidence, place of occurrence; the circumstances existing at the spot and the relations of the parties interse. It does not appear to be a case where delay in the initiation of the case was genuinely due to elaborate thinking by the father of the prosecutrix whether to initiate the matter or not. As already said, an attempt has been made by the prosecutrix to say they she was taken to a place 50 yards away but site plan (Ex. PH) clearly indicates that the occurrence took place at point ''D'' which is the verandah of the house of Sobha Ram.

In view of the above discussion, the submission of Shri B.K. Malhotra, appearing, for the accused, that the whole case is a concoction as a result of animosity between the parties, is quite tenable. Equally forceful is the submission that had, this offence actually taken place at the house of Sobha Ram, there would have been lot of commotion and every one would have come to know of the incident which, as matter of fact, was not noticed by anyone nor it was disclosed to them either by the prosecutrix or her brother of the father of the prosecutrix who states that he visited the house of Sobha Ram after corning to know of this incident and the prosecutrix, her brother and her Sister-in-law were staying at the same place.

In these circumstances, it is (very difficult to, believe the prosecution case and to up-hold the findings of the Judicial Judge against the accused. Unfortunately, the evidence has not been correctly an aliased and appreciated; thus, causing immense miscarriage of justice to the accused. In view of the nature of evidence that has bean- placed by the prosecution and even leaving out material-witnesses without sound explanation, there for, it is hazardous to conclude that the prosecution has succeeded in establishing its case against the accused successfully.

The result of the aforesaid examination of the matter is that there is merit in this appeal and the same is allowed. The conviction and sentence of the accused is set-aside and he is acquitted of the charge. Baiibonds and surety bonds, if any, executed by him at any stage of the case are hereby discharged.