NACHHATAR SINGH Vs. STATE PENAL

JUDGEMENT

(1.) MISS Lalsangliani, a young girl from Mizoram was alleged to have been subjected to rape by the appellant on 27th/28th August 1979 in a hotel in the city of Jammu when she had accidentally met the appellant herein. Upon trial, the appellant was convicted under Section 376 RFC and sentenced to four years rigorous imprisonment, besides paying a fine of Rs, 200/ - and six months sentence upon conviction U/S 349 RPC. Both the sentences were directed to run concurrently.

(2.) THE material facts leading to the conviction of the appellant and the filing of this appeal are that Miss Lalsangliani was the sister in law of one Dr. Vinay Josbi, who was posted as Lecturer in Physics Department of Jammu University, and she was studying in the 9th class in the Convent School, Jammu at the relevant time. The prosecutor is alleged to have abruptly decided on 27th. of August, 1979 to leave the house of her brother -in -law, presumably, upon existence of some differences with her sister and sisters husband, and she decided to go to Delhi to her cousin. Instead of going to the Railway Station, she went in the opposite direction and reached Palouia B.S.F. Camp allegedly, to meet her friend Miss Izabella Ayyanar. However, she did not go inside the house of her friend, but fret the appellant outside the B.S.F.Camp. She is alleged to have told the appellant her story and expressed her intention to proceed to Railway Stack n for boarding a train to Delhi. Upon the alleged assurance given by the accused, the prosecutor accompanied him and came to Jewel Chowk, a busy commercial center in the city of Jammu. After alighting from the auto rickshaw, the prosecutor and the accused are stated to have gone inside Maharaja Hotel along with the luggage of the prosecutor, where they hired a room. The prosecutor. Even accepted the offer of the appellant to go for a movie and after enjoying the movie in the Jewel Theatre, they came back to their hotel room, where the appellant is stated to have brought meals for himself and the prosecutor. The appellant, thereafter, is alleged to have consumed some whisky, bolted the room from inside and, allegedly, raped the prosecutor. She claims to have resisted the sexual assault, but after being threatened, she kept quiet. The prosecutor was kept in the hotel upto 7 p.m., and thereafter taken to the house of the appellant at Bohri about 4/5 KMs away from the hotel. Next morning, she was taken to the bus stand for the purposes of being taken to the railway station, but in the process, Dr. Vinay Joshi came in between and caught hold of the prosecutor. She raised hue and cry, as a result of which, the people of the area caught hold of the said Dr. Vinay Joshi and subjected him to beating, but after the police reached on the spot the appellant and the prosecutor were taken to the police station, where she is stated to have lodged the FIR for the commission of offences Under Sections 342,376 and 363 RPC. The prosecution produced Dr. Vinay Joshi, Miss Lalsangliani, Dr. Bimla Sharma, Shri Ghulam Nabi Naib Tehsildar, Shri Abdul Qayoom SI and Dr. Prithvi Raj Sharma as witnesses. A number of witnesses cited by the Investigating agency were given up without assigning any reason. On the basis of the evidence led in the case, the trial Court came to the conclusion that the prosecutor being above the age of sixteen years, was not in a position to give or withhold her consent in the matter of sexual assault and that offence U/S 363 RPC was not made out against the appellant. The Court, however, found that as the sexual intercourse bad been committed with the prosecutor against her consent and that she had been wrongfully confined, the appellant was liable to be convicted and sentenced as stated here in above.

(3.) I have heard the learned counsel for the parties and perused the record. Mr. Bali the learned counsel appearing for the appellant has submitted that as the number of witnesses cited by the Investigating Agency have not been produced, a presumption U/S 114 of the Evidence Act be drawn against the prosecution. The general submission of the learned counsel for the appellant cannot be accepted in as much as it is not the number of the witnesses which is material, but it is the quality and nature of the evidence produced which is relevant. However, in specified circumstances, the Court may drawn adverse inferences, where the material evidence is stated to have been withhold. Mr. Bali has specifically referred to the withholding of the production of Captain Aynor, which, according to him, was a very material witness in the case. The defense had specifically suggested to the prosecutor that she had been subjected to sexual intercourse by Dr. Vinay Joshi her brother -in -law and that this fact had been narrated by her to Captain Aynor. It was even suggested that Captain Aynor had affected some compromise between the prosecutrix, her sister and her brother -in -law. Non production of Captain Aynor in the instant case has definitely adversely affected the defence. Similarly, non -production of witnesses, namely, Suraj Parkash, Ram Dass, Des Raj, Harnam Singh and Sao jay Sudan has weakened the case of the prosecution. From the statements of the aforesaid witnesses the court could ascertain the circumstances under which the prosecutor was, allegedly, supposed to have been subjected to sexual intercourse against her consent. The counsel appearing for the respondent -State has not been in a position to satisfy the Court or even give a suggestion regarding the circumstances, which prevented the prosecution from producing the aforesaid witnesses in the Court. Non production of the material witnesses may by itself be not a sufficient circumstances to set aside the conviction, but is definitely a factor required to be taken note of along with other circumstances of the case.