SUKH RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal appeal has been filed under Section 374 Cr. P. C. against the judgment and order dated June 15, 1982 passed by learned Sessions-Judge, Alwar in Sessions Case No. 18-A/82 by which the accused-apppe-llant was convicted under Section 376 I. P. C. and sentenced to undergo rigorous imprisonment for a period of 3 years and also to pay fine of Rs. 500/ -. In default of payment of the fine to further undergo rigorous imprisonment for period of 3 months. He was also convicted under Section 323 I. P. C. and sentenced to undergo 3 months rigorous imprisonment. . Both the sentences were to run concurrently.

(2.) IT will suffice for the purpose of this appeal to state that on Feb. 2, 1982 at about 6. 45 p. m. . Pw 1 Smt. Gafooran wife of Shri Samme, resident of village Bandipura District Alwar lodged a written report, Ex. P. 1 to the effect that on the same day at about 1. 00 p. m. she was going with her mother-in-law Smt. Dassi Pw 4 to take grass from the field. Her mother-in-law was engaged in excavating the grass from a field and she herself started breaking on mustared from the mustared field of one Nabbi Khan. All of a sudden, accused-appellant came and caught-hold of Mst. Gafooran and made her to fall on the ground and forcibly open her 'salwar' and thereafter forcibly committed sexual intercourse with her. On hearing the cries of Gafooran, her mother-in-law came there. On seeing her mother-in-law, accused-appellant stood-up inflicted a lathi blow on Mst. Bassi, as a result of which she fell down on the ground. On hearing the cries, Banda and Himmat came at the site, and on seeing them accused-appellant ran away. After registering the report the matter was investigated and the trial court after recording the evidence and hearing both the parties, convicted the accused-appellant as stated above.

(3.) FROM the evidence discussed above, it can be said that there is no medical evidence to support the statement of prosecutrix that she was subjected to rape by accused-appellant. It may however, be stated that two independent witnesses PW 5 and PW 6 whose names were mentioned in the F. I. R. have not supported the case of the prosecutrix and were, therefore, declared hostile. These two independent witnesses have clearly denied that they saw accused-appellant committing rape with Mst. Gafooran and had further stated that even the prosecutrix and Mst. Bassi her mother-in-law PW 4 did not tell them anything at the time of the incident regarding rape having been committed by accused-appellant with the prosecutrix. A reference may be made to Rabindra Kumar Dey Vs. State of Orissa- (l), wherein it was held by the Apex Court that when a witness is declared hostile his evidence cannot be excluded altogether. He does not became unreliable witnesses merely because the party who claimed him was allowed to cross-examine and on this account his evidence cannot be excluded altogether. It was further stated in para 12 that the fact that the court gave permission to the prqsecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base, a conviction upon his testimony if corroborated by other reliable evidence. Therefore, it can be said that the evidence of PW 5 and PW 6 cannot be ignored and brushed aside merely because they have been permitted to be cross-examined by the prosecutor. It may, further, be pointed out that when rape is denied by accused-person some sort of corroboration should be available preferrably in the shape of medical-evidence showing that the offence of rape had been committed. It is perhaps natural that when successfull intercourse is committed against the desire of the prosecutrix and it is alleged that she had struggled to free herself from the accused committing rape, some sort of injuries are likely to be found on her body and on her private parts also. In this case as is evident from the evidence discussed above no injury whatsoever was found either on the body of the prosecutrix or on her private parts. It is also strange that even though she admits that on account of intercourse where were marks of semen on the Salwar she was wearing at that time and that she had cleaned her private parts after the intercourse was completed with that Salwar and the same was taken in possession by the prosecution agency still it was not sent for chemical examination to corroborate the offence of rape against the appellant. It may also be pointed that even though the Investigating Officer visited the site of occurrence after two days he could find the pieces of bangles the mention of which however, does not find place in Ex. P. 1 F. I. R. which was given in writing. It is perhaps natural that when the bangles are broken by force some sort of injury is likely to occur on the wrist which is also absent as per the statement of the prosecutrix-himself.