MADAN LAL Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This appeal is directed against the judgment of the High Court of Jammu and Kashmir dated 2-3-1993, convicting the appellant under Section 376 read with 511, I.P.C. and sentencing him to undergo rigorous imprisonment for a period of 5 years and pay a fine of Rs. 2,000/-, in default, a further simple imprisonment for 6 months, after setting aside the order of acquittal passed by the Sessions Judge, Udhampur, in Sessions Case No. 12 of 1986.

(2.) The appellant who was the Headmaster of Middle School, Khun, in Tehsil Ram Nagar at the relevant point of time stood charged for the offence of "attempt to commit rape" under Section 376/511, I.PC. of the prosecutrix Mst. Rajni, a student of the same school. It was alleged by the prosecution that on 21-5-1986 at about 9 a.m. the appellant sent the prosecutrix Mst. Rajni, PW-18 and two other girl students Mst. Sunita, PW-1 and Mst. Krishna, PW-2 to his residence for cooking his meal as the Headmaster was living without his family. The appellant then came home between 10 a.m. and 11 a.m. and on reaching the home directed PWs 1 and 2 to leave the house but detained the prosecutrix, PW-18 with the understanding that she can leave the house only after cleaning the utensils. Thereafter the appellant forced the prosecutrix for illicit intercourse and ultimately allowed her to go home at 3 p.m. The prosecutrix reached her house but did not find her mother who returned only in the evening. She immediately narrated the incident to her mother, PW-19, who in turn also informed a friend of her PW-17. The father of the prosecutrix was not there at home. Next day, early morning, PW-19, mother of the prosecutrix accompanied by PW-17 and PW-23 gave a written report at the Police Post, Mahalta which was treated as F.I.R. in the Police Station, Ramnagar and a case was registered under Section 376/342, I.P.C. The police then started investigation and a charge-sheet was filed in the Court of Sub-Judge, Judicial Magistrate, 1st Class, Ramnagar for the commission of offence under Section 376/511, I.P.C. read with 342. The accused denied the allegations. The prosecution examined as many as 24 witnesses of whom PWs 1 and 2 were supposed to have gone with the prosecutrix to the house of the Headmaster for cooking food but they did not, however, during trial support the prosecution case. PW-3, PW-4 and PW-5, teachers of the school, also did not support the prosecution during trial inasmuch as they stated that on the relevant date the accused had not left the school during the recess period and they were also declared hostile and were cross-examined by the prosecution. PWs 8, 9, 10 and 11 are the students of the school where the prosecutrix was studying and they also did not support the prosecution and on the other hand stated in their evidence that the prosecutrix was present in the school throughout the day on the date of occurrence, accordingly they were also declared hostile and were cross-examined by the prosecution. PW-13 and PW-14, however, two other students of the same school who were studying in the same class where the prosecutrix was studying, supported the prosecution case to the extent that on the relevant date PW-1, PW-2 and PW-18 were absent from the school after 9 a.m. PW-15, another classmate of the prosecutrix did support the prosecution case to the effect that PW-1, PW-2 and PW-18 had left the school after the recess period and PW-1 and PW-2 had told her that the Headmaster had sent them earlier to his house for cooking food for him. PW-17 is a teacher by profession and according to her evidence on the morning of 22-5-1996 prosecutrix-PW-18, her mother, PW-19 and PW-23 came to her house and told that accused had raped on PW-18 and they also requested her to lend support on behalf of 'Mahila Mandal'. Thereafter she went with them to the Police Station to lodge the F.I.R. The prosecutrix, PW-18 gave a detailed account of what had happened to her on the fateful day of 21-5-1986. PW-19, the mother of the prosecutrix stated to the effect that she came home late on 21-5-1986 when she found her daughter Mst. Rajni in a depressed mood. Seeing her, Mst. Rajni started weeping. On being enquired, Mst. Rajni narrated the incident. She also stated during her evidence that Mst. Rajni was examined by the lady doctor, the said doctor while examining her expressed the opinion that this is a false case and on this score PW-19 requested the police to get Mst. Rajni medically examined from another doctor but that request was not acceded to. PW-21 was a Gynaecologist in the District Hospital Udhampur. On 23-5-86 at 10.30 a.m., on police requisition, she examined Mst. Rajni, PW-18, and found that secondary sex characters were not well developed on her body. She had also taken the vaginal smear and sent for chemical examination and opined that no definite opinion could be given regarding the attempt of sexual intercourse. She had also stated in her evidence that the hymen of the prosecutrix was intact and a small penetration in case of a girl of 13 years old could rupture as well as injure the hymen. PW-22 was the Investigating Officer and PW-23 was the other lady who had accompanied the prosecutrix and her mother to the Police Station on 22-5-1986.

(3.) The learned Sessions Judge on scrutiny of the prosecution evidence came to the conclusion that the case hinges on the sole testimony of prosecutrix, PW-18. He also came to the conclusion that the prosecutrix and PWs 1 and 2 were absent from the school on the relevant day after 9 a.m. which could have been a corroborating circumstance has not been established. The learned Sessions Judge also found that even assuming that PW18 and PWs 1 and 2 had absented themselves from the school on the relevant day after 9 a.m., the said circumstance cannot be an incriminating circumstance against the accused with the commission of the crime. The learned Sessions Judge relying upon the evidence of the 3 school teachers, PWs 3, 4 and 20 came to hold that accused was absent from the school after 9 a.m. has also not been established. On consideration of the medical evidence of the Doctor PW-21, the learned Sessions Judge came to hold that the medical evidence instead of lending support to the prosecution story has shaken the credibility of the prosecution version. So far as the presence of semen on the salwar of the prosecutrix, the learned Sessions Judge did not attach any importance since the same was seized only on 24-5-86 and there is no explanation for the delayed seizure of the salwar in question. The evidence of the mother of the prosecutrix, PW-19 as well as those of PWs 17 and 23 who had accompanied the prosecutrix to the Police Station on the morning hours of 22-5-86 have been brushed aside on the ground of animosity and partisan character of the two members of the Mahila Samiti Mandal namely PW-17 and PW-23. So far as the evidence of the prosecutrix herself is concerned the learned Sessions Judge was of the opinion that she has been contradicted in material particulars by the medical evidence of Dr. Vijay Sharma, PW-21 and further she has attempted to improve her version in the court regarding the commission of rape which she has not stated under Section 161, Cr. P.C. The learned Sessions Judge found out some contradictions between her statement to the police under Section 161, Cr. P.C. and ultimately came to the conclusion that the statement of the prosecutrix does not inspire any confidence and the said statement is unworthy of acceptance. With these findings the learned Sessions Judge acquitted the accused of the charge levelled against him.