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2004 2 crimes 444
Rajasthan High Court
Sunil Kumar Garg, J.
Chhoga —Appellant
versus
State of Rajasthan —Respondent
S.B. Criminal Appeal No. 472/87
Decided on 5-11-2003
Counsel for the parties :
For the Appellant :Mr. B.N. Calla, Advocate.
For the Respondent: Mr. Panne Singh, P.P.
Important Point
In a case of rape onus is always on prosecution to prove each ingredient of offence & it is no part of duty of defence to explain as to how & why victim has falsely implicated accused.
Headnote:Indian Penal Code, 1860 — Sections 366 & 376 — Appellant convicted for having abducted prosecutrix, a married woman & then having committed rape — Appeal –— Defence plea was of consent — Onus is always on prosecution to prove each ingredient of offence if seeks to establish & such onus never shifts — Evidence of prosecution witness can not be accepted merely because accused had not been able to show why witness came forward to dipose against him — Absence of injury on prosecutrix would give rise to inference that she was consenting party — Prosecutrix had been taken to different places in dus before she was subjected to sexual intercourse & she did not have any injury on private parts or on body — Her evidence could not be believed that appellant had sexual intercourse without her will & consent — Conviction was liable to be set aside. (Paras 16 to 23)
Result : Appeal allowed.
Judgment
Sunil Kumar Garg, J.— This appeal has been preferred by the accused appellant against the judgment and order dated 10-11-1987 passed by the learned Addl. Sessions Judge, Bhilwara in Sessions Case No. 42/1986 by which the learned Additional Sessions Judge convicted and sentenced accused appellant as under :
Section Sentence awarded
366 I.P.C. 5 years’ R.I. and a fine of Rs. 200 in default to further undergo 1 month's S.I.
376 I.P.C. 10 years’ R.I. and a fine of Rs. 300 in default to further undergo 1 month’s S.I.
Both the sentences were ordered to run concurrently.
2. It arises in the following circumstances :
(i) P.W.1 Shambhu Giri lodged a written report (Ex.P/13) with the Police Station City Kotwali, Bhilwara on 12-4-1986 stating inter alia that on that day,’ he came to Bhilwara and at about 2 p.m. when he was in the shop near Gol Pyau in Bazar No. 2, then a person of wheatish colour wearing white shirt and Dhoti came there and met him, upon this P.W.1 Shambhu Giri told him that he had to go to Haled, thereupon that person told him that a tractor was going towards Haled and, therefore, he could also come with him. P.W.1 Shambhu Giri has further stated in his report Ex.P/13 that at that time, his daughter Chandi, P.W.2 (hereinafter referred to as the prosecutrix) was also with him. It was further stated by P.W.1 Shambhu Giri in his report (Ex.P/13) that thereafter he went with that person for checking the tractor. It was further stated by P.W.1 Shambhu Giri in his report (Ex.P/13) that after sometime, that person went back on cycle leaving P.W.1 Shambhu Giri there and thereafter when P.W.1 Shambhu Giri came back to the shop situated near Gol Pyau, he did not find his daughter P.W.2 Chandi there. It was further stated by P.W.1 Shambhu Giri in his report (Ex.P/13) that when P.W.1 Shambhu Giri made enqui-ries he was told by other person that Chhoga (accused appellant) had abducted his daughter P.W.2 Chandi from there.
(ii) On the basis of this report (Ex.P.13), the police chalked out regular FIR and started investigation.
(iii) That P.W.2 Chandi was got re-covered on 14-4-1986 through Fard Ex.P/6 and thereafter she was got medically examined for the purpose of ascertaining whether rape was committed with her or not and her medical examination report is Ex.P/9. She was also got medically examined for the purpose of ascertaining her age and her medical examination report regarding her age is Ex.P/12.
(iv) That during investigation, accused appellant was arre-sted through Fard (Ex.P/7) on 8-5-1986.
(v) That after investigation, the police submitted challan against accused appellant for offence under Sections 366 and 376 I.P.C.
3. That on 14-8-1986, charges for offence under Sections 366 and 376 I.P.C. were framed against accused appellant by the learned Addl. Sessions Judge who pleaded not guilty and claimed trial.
4. At the trial, prosecution exa-mined as many as 11 witnesses in support of its case. Accused appellant in his statement under Section 313 Cr.P.C. denied to have committed any offence and one witness was examined by the accused appellant in defence.
5. At the conclusion of the trial, the learned Trial Judge through his judgment and order dtd. 10-11-1987 convicted and sentenced accused appellant as stated above inter alia holding :
(i) That the age of the prosecutrix P.W.2 Chandi was above 18 years on the date of occur-rence.
(ii) That accused appellant abdu-cted P.W.2 Chandi with an intention to have illicit relation with her and there-after committed rape with her.
6. Aggrieved from the judgment and order dtd. 10-1-1987 passed by the learned Addl. Sessions Judge, Bhilwara, this appeal has been filed by the accused appellant.
7. In this appeal, the main submission of the learned counsel appearing for accused appellant is that the learned Addl. Sessions Judge has erred in placing reliance on the statement of P.W.2 Chandi as at the time of alleged incident, she was matured
lady of above
