- (1.) Special leave granted. Smt. Koyali, wife of PW 5 Tulchharam, complains that she was raped by the respondent Narayan on the morning of 23rd October, 1976 when she had gone to the cattle-shed to serve fodder to the cattle. The accused Narayan who is the brother-in-law of PW 5 Tulchharam's sister entered the cattleshed and finding the prosecutrix alone gagged her mouth and forcibly tried to take her inside but on her resisting threw her on the ground on the spot and raped her. The prosecutrix cried for help and struggled with the accused to save her honour. Her cries attracted the attention of PW 4 Joga Ram and PW 7 Bherudan. Bherudhan reached the spot first in point of time followed by Joga Ram and saw the accused on top of the prosecutrix. He pulled him up with one hand and consoled the prosecutrix who was weeping. Thereafter the accused ran away from the scene of occurrence and met PW 5 Tulchharam on the way who saw him tying his Dhoti from behind. The prosecutrix told PW 4 and PW 7 that the accused had forcibly violated her person. She complained that notwithstanding her protestations the accused over-powered her and had intercourse with her against her will. In the- struggle her garments were torn and she also suffered certain abrasions on the elbow joints and on the lumber region as the ground on which she was laid was rough and uneven. She also narrated the incident to her husband PW 5, an army man who had come to the village to celebrate Diwali which had fallen on the previous day. He was dissuaded by the accused and others from filing a complaint and was threatened with certain consequences if he did so. However, two days later he went to Merta with his wife to lodge his complaint Exhibit P3. Thereafter the investigation was taken up by the police and in the course of the investigation the statements of the aforesaid two eye-witnesses PW 4 and PW 7 came to be recorded. PW 1 Dr.R.P. Soni examined the prosecutrix on 25th October, 1976 and found that her clothes were torn, they carried slightly watery and blood like discharge stains and there were teeth marks, two in number, on her left breast near the nipple. On internal examination he found both the labia majora and minora and the clitoris swollen and read with slight bleeding discharge and the walls of the vagina tender with slight swelling. He also noticed abrasions on the back at the lumber region and on both the elbow joints. In his vaginal smear on microscopic examination showed 90% of dead sperms and 10% of live sperms. On the basis of these findings he concluded that the duration of the rape could be about 24 to 48 hours. After the police completed the investigation it submitted a charge-sheet alleging that the accused had committed offences punishable under Sections 452, 376, 342, 323 and 147 of the Indian Penal Code. The learned Sessions Judge, Merta by his judgment and order dated 22nd November, 1978 found the accused guilty under Sections 376 and 451, IPC and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for three months on the first count and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for one month on the second count. The substantive sentences were to run concurrently.
(2.) The accused, feeling aggrieved by this order filed an appeal, being Criminal Appeal No. 423/78, in the High Court of Rajasthan at Jodhpur. The said appeal came up for hearing Before a learned single Judge, who by his judgment and order dated 15th March, 1988 (reported in 1988 (1) Raj LW 278) reversed the order of conviction and sentence passed by the learned Sessions Judge and acquitted , the accused. With regard to the prosecution version regarding the incident having happened on the morning of 23rd October, 1976 in the cattle-shed of PW 5, the learned single Judge observed (para 9): "It appears improbable that somebody will choose that hour of the day for committing forcible rape with a lady in a bada which is just near the public way." , He also observed that since it was a day next to Diwali there must have been a lot of movement on the public street to the west of the cattle-shed and, therefore, it is not possible to believe that anybody could commit forcible rape in the 'bada' adjacent to the public way. Proceeding further the learned Judge thought it inconceivable that a man would come to commit rape with a lady who is his sister-in-law's sister-in-law after about 6 years without any rhyme and reason and that too in day time. Taking this line of approach the learned single Judge found the story of the proecutrix improbable and refused to place reliance thereon. The delay of two days in lodging the complaint was also considered to be a factor which went to show that the entire story was concocted. With regard to the evidence of PW 1 Dr. R. P. Soni, the learned Judge opined that since the prosecutrix was a married lady and two days had passed in between, it is only natural and she must have cohabited with her husband who had come on leave and hence the find of male sperms in her vagina is not surprising and that also explains the semen stains on her Ghagra. He also noted that according to the evidence of the prosecutrix although the accused. had penetrated her, he had not discharged and, therefore, the story of the presence of male sperms of the accused in her vagina is unbelievable. The story that the prosecutrix was wearing torn clothes was also negatived for the reason that the learned Judge found it difficult to believe that she would be wearing the same clothes two days thereafter. So also the learned Judge found it difficult to believe that the accused would be wearing the same semen stained dhoti for about 7 days. With regard to the evidence of the two eye-witnesses PWs 4 and 7 the learned Judge observes 'it is very easy to procure such witnesses in the village within a period of two days who may be ready to support the prosecution version'. On this line of reasoning the learned Judge refused to place reliance on the testimony of these two witnesses. He also found it unnatural that the prosecutrix should stop weeping on being consoled by one of the witnesses. He goes on to add that she could stop weeping only if she had cohabited with her own consent. As regards the injuries on the back and elbows of the prosecutrix, the learned Judge says ((1988) 1 Raj LW 278, para 19): "Her husband was with her during the intervening period of two days and, therefore, it cannot be ruled out that all these injuries have been received by her while cohabiting with her husband because duration of injuries does not tally with the tie of the occurrence." On this line of reasoning the learned Judge reversee the order of conviction and acquitted the accused on both the counts. It is against this order of acquittal that the State has preferred this appeal.
(3.) Mr. Gupta, the learned counsel for the State of Rajasthan, submitted that the prosecutrix is a young woman belonging to the rural folk who had no reason whatsoever to falsely involve the accused in such a serious crimi, No motive for such false involvement has been shown and it is difficult to believe that she would stake her chastity by making such a false allegation. She had known the accused since about 5 or 6 years because he had come to take her sister-in-law at the time of the Muklawa (send-off) ceremony after marriage. She had no quarrel or enmity with the accused and, therefore, it is difficult to believe that she would level false allegation involving her chastity against the accused. The version of the accused that this was a counter blast to his complaint against PW 5 is difficult to accept. Her husband who was serving in the Army had come on leave and it is difficult to imagine why she should stake her reputation to falsely involve the accused. Equally it is difficult to believe that PW 5 would risk his wife's reputation to get even with the accused. The entire approach of the learned Judge, contends counsel, seems perverse. It is this approach which made him doubt the testimony of the prosecutrix as well as the two independent witnesses PWs 4 and 7. He also submitted that because the prosecutrix was a married woman, ordinarily one would not expect injuries on her person if she had sexual intercourse with her husband. Such injuries on the back and the elbow joints as well as on the vaginal walls are testimony of the fact that she had put up a struggle -in the course whereof she sustained abrasions. As she was not a Billing person and was a victim of a forcible sexual assault, there were injury marks on her vaginal walls leading to inflammation and swelling. He, therefore, submitted that the learned Judge in the High Court tried to brush aside this corroborative piece of evidence on the ground that since her husband was in the village, she must have sustained these injuries while having sexual intercourse with him. Mr. Gupta, therefore, submitted that this approach of the learned single Judge runs counter to common knowledge. Mr. Gupta pointed out that the approach of the learned Judge was almost biased against the prosecution which is betrayed by his observation that she stopped weeping because she may have been a consenting party which is nobody's case. He submitted that there was no valid reason for doubting the testimony of the prosecutrix and the two eye-witnesses as well as her husband in regard to the commission of the crime by the accused person. As regard the delay in lodging the complaint, Mr. Gupta submitted that on account of threats, social compulsions and natural reluctance to make such matters public there is always hestitation in approaching the police where the reputation of a woman is at stake. Hence it would not be proper to throw over-board the prosecution's case only on the ground of delay. We see considerable force in the submissions made by Mr. Gupta.;