Ram Bharosi Bai vs Bhagwan Singh and Others

R.S. Chauhan, J.—The petitioner has challenged the judgment dt. 20.01.2004 passed by the Additional District & Sessions Judge (Fast Track No. 1), Jhalawar whereby the learned Judge has acquitted the accused-respondents for offences under Sections 376/511, 323 & 120-B IPC.

In a nutshell, the facts of the case are that on 26.03.2002, the petitioner had filed a complaint before the Superintendent of Police, Jhalawar which was subsequently registered as FIR No. 64/2002. According to the complaint, she was taken by Smt. Rodi and Shri Bheru Lal, non-petitioner Nos. 2 & 3, to their house for cleaning coriander leaves (Dhaniya). When she was at their house, both Bheru Lal and Rodi left her alone in their house. When she was alone, Bhagwan Singh, respondent No. 1 came into the house and attempted to rape her. She could free herself from his clutches only after some struggle. On the basis of this compliant, formal FIR was chalked out for offences under Sections 376/511, 323 & 120-B IPC. During the course of trial, charges were framed against the non-petitioner No. 1 for offences under Sections 376/511 & 323 IPC and charges against the non-petitioner Nos. 2 & 3 were framed under Sections 120-B IPC. In order to prove its case, the prosecution examined six witnesses. However, the defence did not examine any witness. After having considered the oral and documentary evidence, vide judgment dt. 20.01.2004, the learned trial Court acquitted the non-petitioners. Hence, this revision petition before this Court.

Mr. Arvind Bhardwaj, the learned Counsel for the petitioner, has contended that the prosecutrix has given a graphic description of the attempt to rape which was committed by non petitioner No. 1 upon her. Despite the fact that her testimony has not been demolished, still the learned trial Court did not believe her testimony. Thus, the learned trial Court has mis-appreciated the entire evidence. Moreover, the trial Court has given only two reasons for disbelieving her testimony: firstly, there is an inordinate delay of four days in lodging the FIR; secondly, the place of occurrence is said to be a house situated in middle of the village. Thus, the place was surrounded by inhabitants. Still the prosecution has not produced any independent witnesses to corroborate the prosecutrix. Therefore, the learned trial Court has doubted the veracity of the prosecution story. According to the learned Counsel, merely a delay of four days is not fatal to the prosecution. For, in catena of cases, the Hon''ble Supreme Court has observed that in case of rape or attempt to rape since the very reputation of the prosecutrix along with the reputation and the standing of the family is involved, it is normal for the prosecutrix, or for the family to consider different aspects of the matter, before reporting the crime to the police. Therefore, a delay of four days has been exaggerated by the learned trial Court. Furthermore, in a case under Sections 376/511 IPC, and in the case u/s 376 IPC, per se the testimony of the prosecutrix should be sufficient for the purpose of convicting the accused. Since the prosecutrix is no longer considered as an accomplice in the crime, her testimony need not be corroborated by independent witness. Therefore, the very basis for acquittal of the accused person is untenable.

On the other hand, Mr. Shailesh Kumar Panwar, the learned Counsel for the non-petitioners, has contended that the prosecutrix is not a trustworthy witness. For, her testimony has been demolished in the cross-examination. A bare perusal of the cross examination reveals that she has exaggerated the incident. These exaggeration amount to a contradiction. Therefore, the learned trial Court was justified in not believing her testimony. Hence, the learned trial Court was legally sound in acquitting the non-petitioners.

Heard the learned Counsel for the parties and perused the record as well as the impugned judgment.

A bare perusal of the impugned judgment clearly reveals that the learned trial Court has acquitted the accused-persons ostensibly on the ground of inordinate delay of four days, and on the ground of non-production of independent witness by the prosecution. Rape, or attempt to rape tarnishes the reputation of the prosecutrix. Therefore, repeatedly in catena of cases, the Hon''ble Supreme Court has held that since such a crime adversely affects the social standing of the individual as well as of the family, the family takes time to report the crime to the police. Thus, delay is not fatal to the prosecution. The learned trial judge has overlooked this settled principle of law. Therefore, the first premise of his reasoning is flawed.

Moreover, crimes like rape or attempt to rape are committed in places where the general public does not have access to. According to the prosecutrix herself, non-petitioner No. 1 had dragged her into a room and had tried to commit rape upon her. Therefore, the possibility that there may not be any independent witness to the alleged occurrence, cannot be ruled out. Hence, the prosecution cannot be faulted for failing to produce independent witness. Most importantly, in such cases, the testimony of the prosecutrix has to be examined. Unfortunately, the learned trial judge has failed to discuss the testimony of the prosecutrix. Thus, he has failed to consider the evidence which was readily available on record.

In this view of the matter, the impugned judgment dt. 20.01.2004 is quashed and set aside. The revision petition is, hereby, allowed. The case is remanded back to the learned trial Court for re-appreciating the entire evidence. The Registry is directed to return the record of the case immediately to the learned trial Court. The parties are directed to appear before the learned trial Court on 26.10.2009. The learned trial Court is directed to pass its judgment by 31.12.2009.