REKHRAM Vs. STATE

JUDGEMENT

(1.) THIS is; an appeal by the accused Lekhram, 65 years of age. , who has been convicted and sentenced by the learned Sessions Judge, Ganganagar, under section 76 of the Penal Code to three years' rigorous imprisonment for having committed rape upon Mr. Santli alias Sharbati, a married girl of fourteen years of age.

(2.) IN village Netawalal district Ganganagar, Lekhram accused owns a house, part of which has been let out to one Radhakishen who is using it as a shop for the purpose of selling provisions, vegetables and other arti-cles. The accused Lekhram also lives in this house. The girl, Mt. Santli, lives with her brother P. W. 1 Hariram at a distance of 80 to 100 Paondas from Radhakishen's shop. The prosecution story is that on 25th of February 1950 at about 7 or 7. 30 P. M. , Hariram sent Mr. Santli to this shop for purchasing potatoes. As she came, to the shop, Lekhram was already sitting inside. He asked the girl to come in and, take the potatoes. As soon, as. she entered the shop, Lekhram caught hold of her hand and after having the door chained by Radhakishen from inside committed rape upon her. While he was in the act, P. W. 3 Dhonkal and P. W. 4 Dhanji are alleged to have come outside the shop and P. W. 3 is alleged to have asked Radhakishen to open the door as he wanted to purchase tea. This was, however, not done and instead Radhakishen began to remove the bricks from the back wall and made an opening 1-1/2 ft. high, (how wide, we do not know) and pushed Lekhram and "mt. Santli through this opening into the residential portion of the house. Thereafter, Lekhram took the girl to the main door of the house and let her go. P. W. 2 Hajari and P. Ws. 3 and 4 Dhonkal and Dhanji were there at the time and it is alleged that Mt. Santli related the incident to them as she came out of the house. Thereafter, she went to her brother, P. W. 1 Hariram, nineteen years of age, who lodged the first information report after a delay of nearly 29 hours on 26th of February 1950; at about midnight, at Chunawar Police Station which is at a distance of 9 to 10 miles from Netawala. INvestigation was taken in hand and on 27th of February 1950, Mr. Santli was sent for medical examination. It appears from the report of Mrs. Balwantsingh, Lady Doctor, who examined her on 28th of February 1950 that beyond slight redness on the vulva and a scratch on the cheek, there was no other injury on the body; The hymen was torn but it could not be said whether a rape had been committed. The accused was arrested on 2nd of March 1950 and challaned before the Sub-divisional Magistrate, Ganganagar, who commuted him to the Sessions Court to take his trial under section 376 of the Penal Code. Both in the Committing Magistrate's court and the Sessions Court, the accused denied having committed the offence and stated that a false case had been bolstered up against him at the instance of Khetpal, a Lambardar of the village who was inimical towards him. He produced four witnesses in defence. The prosecution produced seven witnesses including P. W. 7 Mt. Santli. The learned Sessions Judge held that the statement of Mt. Santli was corroborated in material particulars by P. W. 2 Hazari, P. W. 3 Dhonkal and P. W. 4 Dhanji. He also held that the statement of P. W. 6 Mrs. Balwantsingh also supported the prosecution version. He rejected the defence evidence and convicted and sentenced the accused as stated above. 3, Mr. INdernath Modi, the learned counsel for the appellant, has urged in the first instance that since the first information report had been lodged after a delay of 28 or 29 hours, there was reason to believe that this interval had been employed for concocting a false case against the accused. It lay heavily on the prosecution to explain the delay but, in our opinion, this has not been done satisfactorily. P. W. 1 Hariram, who lodged the first information report, accounted for the delay by stating that be could not go to the police station as it was night time and he was also ashamed of reciting the incident to anyone. The prosecution has not produced any evidence to show whether the parents of the girl are alive and were in the village or whether the husband of the girl was at all contacted. According to the case set up, it appears that the only relation of the girl who took interest in the prosecution was her brother, Hariram, who is himself a lad of nineteen years of age. His explanation, that he felt ashamed and, therefore, did not go to the police Station or that at the time Mt. Santli narrated the incident to him, it was already dark is not satisfactory for the simple reason that after all, the report was actually made the next night and neither of the above factors deterred him from doing so. Although P. W. 1 Hariram has denied having contacted anyone before making the first information report, it appears from the evidence that this is not a correct statement. Khetpal,, the Lambardar of the village, according to the, prosecution evidence, new about the incident and sent for P. W. 3 Dhonkal. Since the delay in making the first information report has not been satisfactorily explained, we have reason to believe that the details were discussed and settled. This itself casts a doubt regarding the correctness of the prosecution story. 4. Apart from the above, beyond the statement of Mt. Santli there is no direct evidence available. It is a well established practice that in cases of rape the evidence of the girl must be corroborated, though the nature of the corroboration would always depend upon the facts of each particular case. Where the rape is denied by the accused, the sort of corroboration which would be forthcoming is medical evidence showing injury to the private parts of the complainant, injury to other parts of the body which may have been occasioned in struggle, seminal stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed. Unless the woman is a willing party, there is bound to be resistance and such a resistance would normally lead to the tearing of the clothes and other factors referred to above. IN this case; corroborative evidence of the above character is not forthcoming. The learned Prosecutor urged that the statement of P. W. 5 INvestigation Officer to the effect that bricks had been taken out and replaced afterwards when he inspected the spot furnished a sufficient corroboration of the statement of Mt. Santli. The statement of P. W. 5, however, itself requires support by independent evidence. It is conceded by the learned Public Prosecutor that when the INvestigating Officer visited the spot, he was not accompanied by any Motbirs. Accordingly, the bald statement of the witness cannot be accepted for the purpose of corroborating Mt. Santli. She stated that there was a scratch on one of her cheeks caused by the teeth of the accused. The existence of the scratch has been deposed to by P. W. 6, the lady doctor but she does not say that this scratch was due to teeth bite. The medical examination disclosed nothing as it was held after considerable delay. The only other matter referred to by the learned Public Prosecutor for the purposes of corroboration was the subsequent conduct of Mt. Santli consisting of the fact that she had immediately related the incident to P. Ws. 2, 3 and 4. According to section 157 of the Evidence Act, this may be treated as corroboration but the question still remains whether it has any value if the statement of the girl herself cannot be relied upon. We have examined it carefully and have grave doubt whether what she stated was the truth. The incident is alleged to have taken place in circumstances which are rather unusual and contrary to the normal course of human conduct. The intercourse is alleged to have taken place in the shop when lamp was burning and Radhakishen, owner of the shop, was present. The accused is a family man, fairly advanced in years and has his woman folk living in the back portion of the house. It is a question whether in such circumstances this old man could be expected to have committed the offence. Mt. Santli did not cry for help even when she knew, according to her version, that P. W. 3 Dhonkal was standing outside the shop. According to the statement made by her, after the people standing outside had said that some woman was weeping, the accused asked Radhakishen to remove the bricks from the wall and make an opening and while he was busy doing so, the accused was having inter-course with her. We are not prepared to believe this version. There is also some discrepancy between the statement of Mt. Santli and the depositions of other witnesses with regard to the exact juncture of time when the lamp had been put cut. IN the circumstances, when the story put forward by Mt. Santli does not carry conviction, its repetition by other witnesses is of no avail. We have examined the statements of these witnesses carefully and do not consider them to be reliable. P. W. 1 Hariram is definitely a witness who has concealed facts on important points. This witness lives in the house belonging to Purkha who is a close relation of Khetpal, Lambardar of the village. We are unable to say, on the record as it stands, whether Khetpal has a hand in the prosecution of the accused, but he appears to be very much involved in it either because he is the Lambardar of the village or some other ulterior reason. The fact remains that Hariram was anxious to keep him in the background as he completely denied the relationship of Purkha, his landlord, with Khetpal. P. W. 2 Hazari has, however, brought it out. Similarly, Hariram concealed the presence of Khetpal in the Thana although acc6rding to P. W. 5, the INvestigating, Officer, he was admittedly there and spent the night along with Hariram in the Thana. This is the manner in which Hariram has made his statement in court and we have grave doubt whether while making the first information report, he stated the truth. So far as P. W. 2 Hazari is concerned, he is the village Kotwal but even the learned Public Prosecutor has conceded that his statement is not of a reliable character. According to him, Dhanji and Dhon-kal had arrived when Mt. Santli was reciting the story but they said nothing to this witness. After hearing the version from the girl, as a village Kotwal, he should have taken further steps in the matter and in any case, taken the girl to her house and even asked the witnesses if they knew anything about the incident. He, however, did none of these things and in fact admitted that he did not mention what he heard from Mt. Santli to anyone else till he was asked by the police. Although the incident is dated 25th of February 1950, his statement was not recorded till 4th of March 1950. The INvestigating Officer merely stated that he was not in the village but did not develop this fact any further. The statements of P. W. 3 Dhonkal and P. W. 4 Dhanji are also not reliable. It does not stand to reason that when these persons arrived outside the shop and had even heard the cries of a woman coming from inside the shop, they would keep sitting outside in the street and take no steps whatsoever for the purpose of coming to the rescue of the woman. There is a contradiction also between the statements of these two witnesses because while P. W. 3 deposed that on his asking Radhakishen to open the shop, Lekh-ram stated that Radhakishen was not there, P. W. 4 Dhanji is silent on the point. We axe not prepared to believe that of all the persons Lekhram would speak up when he was committing an offence and actually in the act of intercourse with Mt. Santli. It is also not believable that if instructions were given to Radhakishen to remove the bricks from the back wall, he would create so much noise while doing it that persons standing outside the shop would come to know about it. P. W. 4 Dhanji stated that he had talked to Bahadursingh, Doongar and Bastinath about what he had heard from Mt. Santii but these witnesses have been withheld. At the time Dhonkal saw. the girl when she was coming from inside the house of Lekhram, he was able to detect marks of injury on her face. It is not stated that there was any light nearby and, accordingly, the statement is not believable nor has the learned Pubic Prosecutor relied upon it by way of corroboration. It however shows the extent. 0 which the witnesses are prepared to go. How the names of Dhanji and other witnesses came to the Knowledge of the police, the INvestigating Officer refused to disclose. The girl admitted that she always addressed the accused as her uncle and that when the accused took her to the main door of the house, the women folk were walking about in the rooms. These are all circumstances which make the commission of the offence by the accused highly improbable. IN the circumstances, the conviction of the accused for the offence under section 376 of the Penal Code cannot be said to be justified The result is that this appeal succeeds and is hereby accepted, the order of the learned Sessions Judge convicting and sentencing the accused under section 376 of the Penal Code set aside and he is hereby acquitted. .