CHAUHAN, J. - (1.) A dispute between two neighbours, an allegation of rape and conviction thereunder has brought the appellant before this Court. The appellant has challenged the judgment dated 30. 04. 1986 passed by the Sessions Judge, Sawai Madhopur whereby the learned trial Court has convicted the appellant for offence under Section 376 of the Indian Penal Code (in short, "ipc") and sentenced the appellant to two years of rigorous imprisonment and imposed a fine of Rs. 200/- and to further undergo two months of rigorous imprisonment in default thereof.
(2.) IN short, the prosecution story is that on 10. 11. 1982, one Mr. Ram Niwas (P. W. 4) lodged a report (Ex. P. 1) which was signed by Gauri Shankar (P. W. 1), Up- Sarpanch, Jagdish (P. W. 6) as well as by other villagers before the Police Station Boli, wherein he claimed that "his nephew's wife, Kamli (P. W. 3) was cutting Guawar (a coarse foodgrain) in her field. While she was cutting the crop, allegedly the appellant entered the field, caught hold of Kamli (P. W. 3) and raped her. When she shouted for help, Tikaram and Ram Lal, who were working nearby, ran to her rescue. He further alleged that the appellant snatched the gold Borla (an ornament which is worn on the forehead by women) and also snatched Jantar (an ornament for women ). It is claimed that at the time of incident both Jagdish and Ram Niwas were out of village. They came to know about the incident upon their return. They complained to the Up-Sarpanch and other villagers. The villagers agreed that the rapist cannot be permitted to stay in the village as it would be a threat to other women of the village. Therefore, they suggested that a complain be filed police about the incident". On the basis of this report, a formal FIR (Ex. P. 1-A) was chalked out for offence under Section 376 and 379 of IPC. IN order to support its case, the prosecution examined six witnesses and submitted thirteen documents. The statement of the appellant was recorded under Section 313 of Criminal Procedure Code (in short, "cr. P. C. "), wherein he claimed that he and the complainant are neighbours and their fields are next to each other. It is the complainant who has encroached upon the appellant's land. Thus, an animosity has arisen between the two. Because of this animosity, he has been falsely implicated in this case. IN fact, on the fateful day, he had taken his sheep into the jungle. IN order to substantiate the defence case, the appellant had examined two witnesses from his side. However, after going through the oral and documentary evidence, the learned trial Court while acquitting the appellant of offence under Section 379 IPC, has convicted the appellant for offence under Section 376 IPC and sentenced him as aforementioned. Hence, this appeal before this Court. Mr. A. K. Gupta, the learned counsel for the appellant, has raised the following contentions : Firstly, a false case has been fabricated against the appellant. Secondly, although the prosecutrix and her husband claimed that the husband of the prosecutrix had returned in the evening of 7. 11. 1982, the date of incident, yet the FIR was not lodged till 10. 11. 1982 i. e. , after an inordinate delay of three days. The prosecution has not offered any cogent explanation for such an inordinate delay. Thirdly, according to the prosecutrix (P. W. 3), she had gone to the fields alongwith her two daughters. Both the daughters were sitting near her, while she was cutting crop with Hasli (Sickle ). Thus, she had a sharp edged weapon in her hands, when she claims that the appellant caught hold of her. Moreover, according to her, other villagers were working in their fields which were nearby. Furthermore, the field is situated on a road, where people were coming and going. Thus, the field is subject to public view. Further, according to the site plan (Ex. P. 3), while a part of the crop was standing, a part of the crop was cut. Though, the prosecutrix claims that she was thrown on rough ground where the crop was cut, not a single injury has been discovered on her body, in her medical examination. Thus, the scene of crime, the absence of injury on the body of the prosecutrix belies her claim. Hence, the prosecutrix is not a trustworthy witness. Fourthly, because of the animosity that has been existing between the complainant and the appellant, the prosecutrix has foisted a false case upon the appellant. Lastly, though the prosecutrix has claimed that Tikaram and Ram Lal had run to her rescue, even these two independent witnesses have not been produced by the prosecution. Therefore, an adverse inference should be drawn for withholding the material and independent witnesses. On the other hand, Mr. Arun Sharma, the learned Public Prosecutor, has argued that in a case of rape, where the honour of a woman and the prestige of the family is involved, it is not unusual for the family to take some time before lodging the report with the police. Moreover, initially, the prosecutrix and her husband had tried to call a panchayat to deal with the case of rape. It was only later on that it was decided that the matter should be reported to the police. Thus, the prosecution has clearly explained the delay. Thirdly, since the prosecutrix is no longer considered an accomplish in the crime of rape, but is now considered as the victim, her testimony should be accepted as the gospel truth. Therefore, the Court should not look for corroborative evidence. According to the learned counsel, the testimony of the prosecutrix contains a ring of truth. Hence, the same should be accepted as the gospel truth. Lastly, the learned counsel has contended that crime against women is increasing. Therefore, a serious view should be taken. We have heard the learned counsel for the appellant and the Public Prosecutor, have perused the impugned judgment and examined the documents available on record. Smt. Kamli (P. W. 3) is the star witness of the prosecution. She tells the Court that "the incident had occurred three months ago. On that fateful day, alongwith her two children she went to her field between 8:00 AM to 9:00 AM in order to cut the crop, which was standing in the field. Her husband had gone to Lalsot to get an engine repaired. Sanwaliya entered the field and caught hold of her from the back. He threw her on the ground and he did the same thing as a husband would do with his wife. I tried to struggle and tried to stop him but he did not relent. After finishing with me, he ran away. When I shouted for help, Tikaram and Ram Lal came to her. Before fleeing, the accused took my Jantar and Borla. Subsequently, I walked all alone to the village. My mother-inlaw, who was in the house, I told her about the incident. My husband returned on the same day. My aunt-in-law and my husband went to search for the accused. But, they could not find him. Police came to the village and we reported to the police. "
(3.) IN the cross-examination, the prosecutrix tells the Court that "at the time of incident, her elder daughter was six years old and the younger one was three years old. They were with her; after the incident, the third child has born. Both the children (her girls) were sitting near her when Sanwaliya entered the field. Both the children were asked to run away. At the time of incident, she was pregnant and was in her seventh month". She also tells, in her cross-examination, that "the appellant's field and her field are not next to each other, but are separated by wild grass". She further admits that "her and her husband's another field and appellant's field are next to each other". She further admits that "she was cutting Guawar with sickle. Two or three bundles of Guawar were lying there and my girls were sitting there". She further tells the Court that "the appellant did not catch hold of her from behind". The Prosecutrix further admits that "she was thrown on the ground where the Guawar had been cut. " She further claims that because of the bundles of Guawar, she had received injuries on her legs. She denies the fact that she had told in her statement under Section 161 of Cr. P. C. that the appellant had caught hold of her from behind and had thrown her on the ground. She claims that the appellant had not caught hold of her from the waist, but had caught hold of her by the neck. She further claims that the appellant sat on her chest. She admits that when she fell down, she had a sickle, but the appellant snatched the sickle and threw it away. She claims that the appellant was wearing Dhoti which he opened and sat upon her. He stuffed her mouth with her petticoat. He put his one foot on her chest and the other foot on her body and he laid on her. When he put his leg on her chest, the sickle fell from her hand. He raped her for about one to two minutes. Her Ghaghra (petticoat) was soiled. She further claimed that "the appellant ejaculated, which, later on, she cleaned it. IN the evening, when her husband came back, she told him about the incident. Her aunt- in-law had taken the breakfast to the well where her husband had also come for breakfast. She further claims that she also went to the well. She initially claimed that on the same day, her husband had gone to the police station. But subsequently, she changed her stand and claimed that he had gone to the police station on the next day. She further states that the field where the incident had occurred is surrounded by two roads, on both the sides. At the time of incident, people were moving on the road. Nearby, Ram Kumar and Tikaram were working at the well. When she went to the police station, she was wearing the same clothes which she was wearing when the incident took place. She did not shout after the incident. IN the night, she did not cohabit with husband. According to her, the village is less than one kilometre away from her field. IN fact, it is separated by two to four fields from the village. She states that she was wearing the Borla on her forehead with a thread. The accused had snatched the Jantar even before he started to rape her. Her children were crying when the incident had occurred. She further admitted that the police has not recorded in her statement (Ex. P. 7) under Section 161 Cr. P. C. that her children were with her at the time of incident, although she had told them. Even in the written report (Ex. P. 1), this fact has not been mentioned. Even before raping her, the accused had taken her Jantar and Borla. She further admits that "the statement that he had taken them after the incident is wrong. IN Ex. P. 7, the statement that after raping me he had taken away the Jantar and Rakhri, I have heard, but I did not make this statement as recorded in Ex. P. 7. " She further states that "he removed the cloth from my mouth, only after he was finished with the rape". While answering the question whether the accused had taken the cloth with him, or left the cloth at the place of incident, the prosecutrix claims that the accused had taken the cloth with him. She further claims that she does not remember the clothes the accused was wearing. She admits that in Ex. P. 7, her statement that "she had chased the accused and had run into Ram Lal and Tikaram whom she informed about the incident", was not made by her. She further denied the suggestion that there is any animosity between the appellant and the prosecutrix's family over the boundary wall of their respective fields. She further claims that while Guawar was standing in her field, other villagers were working in their fields. She denied the suggestion that she has fabricated a false case because of the dispute over the boundary wall. The sickle and the hose were left lying in the field. When she went to the well, she showed the police the sickle and hose. She saw Sanwaliya for the first time when the incident had occurred. She denied the suggestion that she was not going to the field because she was pregnant. However, the testimony of the prosecutrix is belied by her medical report (Ex. P/12) and by the FSL report. According to the prosecutrix, she was thrown on a rough ground and she received injuries on her legs from the crop which was cut in the field. But, according to her medical report (Ex. P. 12) she has not sustained a single injury anywhere on her body. Thus, her medical report does not substantiate and in fact contradicts her claim of having received injuries. Moreover, according to her testimony, the accused had ejaculated while raping her and her petticoat was soiled. Although, her petticoat showed some white spot, although the petticoat was sent to the Forensic Science Laboratory, but according to the FSL report, the petticoat did not show the presence of any human semen. Therefore, the FSL report does not support her testimony. It is a settled principle of prudence that "while Man may lie, circumstance do not". In the present case, the allegation of rape could be fortified by medical and scientific evidence. However, the medical and scientific evidence, in the present case belie the testimony of the prosecutrix. The prosecutrix would like the Court to believe that she was raped in broad day light, in front of her two children, in a place where the public was moving on the road and other villagers were working in their fields. But those working in the other fields have not been produced as witnesses. Moreover, though the prosecutrix claims that Tikaram and Ram Lal had rushed to her rescue, they also have not been produced as witnesses. Therefore, independent and material witnesses have been withheld by the prosecution. The conspicuous absence of these witnesses creates a doubt about the veracity of the prosecutrix's testimony. ;