Union Territory Of J&K vs Brij Lal

Puneet Gupta, J

The application seeking leave to appeal is filed against the judgment dated 08.08.2019, passed by the learned Additional Sessions Judge, Udhampur, in case No. 14/Sessions titled "State through P/S Chenani Vs. Brij Lal" whereby the respondent has been acquitted.

The case set up before the trial court was that on 29.10.2011 a written report came to be lodged with Police Station, Chenani by the prosecutrix and her brother PW-1 wherein it was stated that the accused is their cousin who used to commit the rape on the prosecutrix and also threatened not to reveal the incident to anyone. The accused has also threatened that he will kill the prosecutrix and her brother in case the prosecutrix reported the matter to police or made any complaint. She did not disclose the incident to anyone. On 20.10.2011 the accused again committed rape upon her whereupon she got pregnant and thereafter she disclosed the incident to her mother and the brother. F.I.R No. 117/2011 under Sections 376/506 RPC came to be registered upon this report and on the conclusion of the investigation the challan was presented against the accused under Sections 376/506 RPC in the Court of law.

The trial court framed charges against the accused under Sections 376/506 RPC who denied the same and claimed trial. The prosecution has examined nine witnesses in support of its case.

The prosecutrix has stated in her examination that she knows the accused who is her brother in relation. About 2-3 months ago, she was all alone in her house as her mother had gone to Udhampur for her treatment. At about 09.30 p.m, the accused came on spot and wrapped her mouth with her Chunni and tied her hands and took her to room of her mother where the accused removed her salwar and committed rape upon her. The accused asked her to wash the blood stains of the bed-sheet and threatened to kill if she disclosed the incident to anybody. She disclosed the occurrence to her mother after 20-21 days of the incident. She was sent to Udhampur with cousin Ashok Kumar by her mother and her brother took her to some private practicing doctor. She informed her brother that Brij Lal had done wrong with her. Her brother Raju made a call to the accused asking him that he had raped his sister but Brij Lal replied him to do whatever is required to be done and the matter will be sorted out when they come back. She came back to Mantalai with her brother where accused and his son who were armed with sticks came to kill them and thereafter chowkidar and his son-Shishu also came there to kill them. On the asking of the accused, the abortion was done by Udhampur doctor. Later on, the F.I.R was registered. The witness has further deposed that the house where the accused did wrong with her has the families of Som Raj and Subash Chander. She is having three brothers and seven sisters. On the date of occurrence, only children of her married brothers were in the house. The partition in the rooms is by wooden walls. She used to close the door of her house at about 10-11 p.m and till that time the door of the house used to remain open. The accused continuously committed wrong with her for a month. Till arrival of her mother the accused used to do wrong with her forcibly by closing her mouth with Chunni and tied her arms. She did not disclose this fact to anyone as she was threatened by the accused. The accused used to come at about 09.30 p.m daily and the door of the house used to remain open. She did not disclose the occurrence to her mother and brother when they come to the house nor disclosed the incident to any of her relatives who lived in the house who used to come home during day time nor to her other brothers and sisters-in-laws who used to live near her house. When she informed her mother about the incident, the mother did not reveal the occurrence to her brother but informed him that the witness is ill. She visited the doctor along with her brother on 21st although she does not know the name of the doctor or his place of sitting. She disclosed the occurrence to the doctor in presence of her brother. The F.I.R was lodged on the next day of her abortion. She disclosed before the Chenani Court in her statement that accused continuously did wrong with her but the same is not written in her statement. She gave the statement before the Court without any fear or pressure. Her mother told her that she is telling a lie when she informed the mother of the wrong committed by the accused. Her family had no enmity with the accused before the occurrence and she used to go to the house of the accused who has three children. Police did not visit her house. She did not attempt to run away when the accused did wrong with her as her mouth was wrapped. She tried to save herself with her legs when the accused was doing wrong with her.

The statements of other witnesses are relevant in case the statement of the prosecutrix inspires confidence. The statement of other witnesses can only lend support to the statement of prosecutrix.

The respondent had examined Tarlok Chand and Om Parkash as defence witnesses after the recording of the statement under Section 342 Cr.P.C. The witnesses had deposed about the litigation over the land between the father of the prosecutrix and the accused.

The trial Court while acquitting the accused has analyzed the prosecution evidence and particularly the statement of the prosecutrix and held it highly improbable that the accused would come at night daily continuously for a month and would forcibly commit rape upon her. The non-disclosure of the alleged act of forcibly committing rape upon the prosecutrix to the relatives including her family members who were residing in the same house makes the case of the prosecutrix improbable as per the trial Court and this Court finds no reason to disagree with the same. The meekly submission of the victim to the whims of the accused for a month is without any plausible cause, more so, when the accused is not stated to be armed with any weapon and that the victim would keep the door of the house open every night in order to allow unhindered entry of the accused to her house. The regular visit of the accused to the house of the prosecutrix for more than a month could not have gone unnoticed by the other relatives of the victim who were staying in the same house though in different rooms. The statement of the alleged victim relating to the rape being found doubtful, the statements of other witnesses including the family members of the victim pale into insignificance.

The learned counsel for the applicant is not able to point out error in the judgment of the trial Court so far as disbelieving the version of the prosecutrix is concerned.

Last but not the least, it may be pertinent to mention here that it has also come in the prosecution evidence that the prosecutrix informed of being subjected to rape by the accused before the private doctor who conducted her examination at Udhampur. Needless to mention that the doctor has not been brought in the witness box who could depose as a independent witness at least about the information given by the prosecutrix to him about the rape having been committed by the accused.

The trial Court has also discussed about the age of the prosecutrix at the relevant time. The age of the prosecutrix is written as 17 years in the report lodged with the police and she has reiterated the same before the Court. The Radiologist has opined the age of the prosecutrix more than 15 years and less than 17 years. The trial Court has rightly given benefit of doubt as it is held that it cannot be said that the prosecutrix was a minor at the time of the incident if the margin of two years is given to the age of the prosecutrix as per the pronouncement in „Jaya Mala v. Home Secretary, Government of J&K & ors.‟ AIR 1982 SC 1497 where it has been held that the judicial notice can be taken that the margin of the error in age ascertained by Radiological examination is two years on either side. The age of the prosecutrix can be construed as between 17-19 years of age if the margin of error is to be given to the age of the prosecutrix at the time of occurrence.

In the totality of the circumstances of the case, the findings given by the trial Court by virtue of which the prosecution case is held to be doubtful particularly in the light of the statement of the prosecutrix cannot be held to be improbable or perverse.

No interference is called for in the impugned judgment which is detailed and reasoned one.

The applicant has failed to make out a case for grant of leave to file the appeal. The application seeking leave to appeal is dismissed, being devoid of merit.

The application seeking condonation of delay in filing the appeal also stands dismissed.