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CASE NO.: Appeal (crl.)  1292-1293 of 1999

PETITIONER: STATE OF RAJASTHAN

RESPONDENT: BIRAM LAL

DATE OF JUDGMENT: 13/04/2005

BENCH: B.P. SINGH & S.B.SINHA

JUDGMENT: J U D G M E N T

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

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 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 childre n  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 distr ict  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

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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 tol d  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 th e  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

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 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 t he  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.   I n  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.