BANSAL, J. - (1.) THIS appeal is directed against the judgment and order dated 30. 11. 2000 passed by the learned Special Judge, SC/st (Prevention of Atrocities) Cases and Additional Sessions Judge, Alwar whereby accused appellant Vishram has been convicted under Sections 376 and 392 IPC and sentenced to suffer R. I. for seven years and a fine of Rs. 1,000/-, in default of payment of fine to further suffer R. I. for six months and R. I. for three years and a fine of Rs. 500/-, in default of payment of fine to further suffer R. I. for three months respectively. Both the substantive sentences were ordered to run concurrently. However, the accused-appellant has been acquitted of the charge under Section 3 (2) (v) of SC/st (Prevention of Atrocities) Act.
(2.) BRIEFLY stated the facts of the prosecution case are that on 3. 10. 99 `parcha-Bayan' Ex. P3 of Smt. Ramu Devi (PW2) was recorded by the SHO, P. S. Rajgarh, District Alwar in Zanana Hospital, Rajgarh wherein it was stated by her that yesterday at about 5. 00 p. m. she was going from her in-laws' village Sehra to her father's village Luharwala. When she covered some distance from Swami Dayal bus stand she was dragged to a nearby field by accused Vishram and he forcibly committed sexual intercourse with her. Having satisfied his lust, accused Vishram inserted three fingers into her vagina which resulted in tearing of vagina and profuse bleeding. She made hue and cry. Hearing her outcry, daughter of Harlya Bairwa, R/o Kali Pahadi came there. On seeing her, accused Vishram snatched her golden ornaments namely Kundal, Khangwali, Jantar and silver ornaments namely Mangalsutra, Chain, Kanakati, Saanth, Paijeb and fled away. From the place of occurrence she was taken to village Luharwala on motor-cycle by a person who had also reached there. From village Luharwala she was brought to Rajgarh hospital by her mother, Uncle Hajari and Aunt Dhanki. It was also stated by Smt. Ramu Devi that on inquiry she came to know the name of the culprit who had committed rape on her. On the basis of `parcha-Bayan' Ex. P3, SHO, P. S. Rajgarh registered the F. I. R. and investigated the case. On completion of investigation, a charge-sheet was filed against the accused- appellant in the Court Additional Chief Judicial Magistrate, Rajgarh who committed the case to the Court of learned Special Judge. The learned Special Judge framed charges under Sections 376 and 392 IPC and under Section 3 (ii) (v) of SC/st (Prevention of Atrocities) Act against the appellant who pleaded not guilty and claimed to be tried. To prove the aforesaid charges the prosecution examined as many as 16 witnesses. In his statement recorded under Section 313 Cr. P. C. , the accused-appellant pleaded innocence and stated that on account of enmity with Chhotelal Meena, he was falsely implicated in this case. In defence two witnesses were examined. The learned trial Judge, on hearing the final submissions made by both the parties, convicted and sentenced the accused- appellant as indicated here-in-above. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and with their assistance, carefully scanned and scrutinized the material on record. Learned counsel for the accused-appellant submitted that there was unexplained delay of 23 hours in reporting the matter to the police. The accused-appellant was not known to the prosecutrix before the alleged incident and no test identification parade was held. Additionally there was no corroboration to the evidence of the prosecutrix. Medical evidence does not lend any assurance to her testimony. Learned counsel has also placed reliance on Abid and Ors. vs. State of Rajasthan, 1998 Jan. R. C. C. 66. In the aforesaid background it was submitted that the conviction, as recorded, is not proper. Learned Public Prosecutor appearing for the State has supported the impugned judgment.
(3.) IN Aman Kumar & Another vs. State of Haryana, (2004) 4 SCC 379, the Apex Court has observed as under:- " It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. IN the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice. " Again in Shri Narayan Saha & Another vs. State of Tripura, (2004) 7 SCC 775, while reiterating the same, Hon'ble the Supreme Court has observed as under:- " A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. " Keeping in view the aforesaid principle laid down by the Apex Court, I would now examine the prosecution evidence. The prosecutrix PW2 deposed that on the day of incident, around 5. 00 p. m. while she was proceeding to her father's village, accused Vishram appeared on the scene near Swami Dayal bus stand. He asked her as to where was she going ? She replied that she was going to village Pinnan whereupon accused Vishram went ahead of her and when she crossed him he caught her from behind and dragged her to a nearby field and committed rape on her. She made hue and cry whereupon Sarbi (PW1) came to the place of occurrence from the way. It was further stated by the prosecutrix that when PW1 Sarbi was proceeding towards her, the accused-appellant inserted his fingers into her vagina and dragged her in the field. On arrival of PW1 Sarbi, the accused-appellant ran away. The prosecutrix identified the accused-appellant correctly in the Court. It was also stated by her that Brajmohan (PW6) also came on the spot and he took her to her father's village on motor- cycle. She narrated the incident to her mother. Thereafter she was taken to Rajgarh Hospital by her mother, Hajari and Dhanki and got her admitted. She further stated that next day at 2. 00 p. m. police came in the hospital and recorded her statement Ex. P3. She also stated that the place of incident was inspected by the police in her presence. ;