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JAMMU AND KASHMIR HIGH COURT
Dhiraj Singh Thakur and Sanjay Kumar Gupta, JJ.
State —Appellant
versus
Arjun Singh —Respondent
Cr. Acq. Appeal No.21 of 2015
Decided on 1.9.2017
Counsel for the Parties:
For the Appellant: Mr. Ehsan Mirza, Dy. AG
For the Respondent:Mr. Rohan Nanda, Advocate
IMPORTANT POINT
Testimony of a woman having attained majority and who is habitual to sexual intercourse may require corroboration depending on facts of a particular case as there is likelihood of leveling accusation of rape on account of instinct of self preservation
Headnote:Ranbir Penal Code—Section 376—Rape of married woman—Prosecutrix had gone out to defecate in morning at about 5.30 am—Accused hiding behind bushes caught hold of her, dragged her to a distant place and raped her—Acquittal by trial court observing that prosecutrix deposed that accused committed “Gallat Kaam”with her and it was not prudent to infer that “Gallat Kaam”meant rape and that there was no corroboration to her testimony—State appeal—Testimony of a woman having attained majority, who is habitual to sexual intercourse may require corroboration—Salwar worn by prosecutrix at the time of incident was washed by her and thus was neither seized nor examined at FSL—FIR was sent to court after two days and there was no explanation for delay—There was no corroboration of version of prosecutrix from medical evidence—Acquittal was not liable to be interfered with. (Paras 13 to 15, 18 and 22)
Result: Appeal dismissed.
JUDGMENT
Sanjay Kumar Gupta, J.—State is aggrieved of the acquittal earned by Arjun Singh S/o Paras Ram R/o Smailpur, Tehsil & District Samba ( for brevity ‘accused’) vide impugned judgment dated 30.09.2014 of learned Principal Sessions Judge, Kathua in case FIR No.138/2011 registered in Police Station Bari Brahmana for the offence under Section 376 RPC, therefore, Cr. Acq. Appeal No.21/2005.
2. As per the prosecution, on 15.10.2011 one Vinod Kumar S/o Ram Kirpal R/o Smailpur, Tehsil and District Samba along with his wife lodged an oral complaint with Police Station Bari Brahmana alleging therein that on that day at about 5.30 a.m., his wife had gone out to defecate in the nearby bushes, where Arjun Singh S/o Paras Ram R/o Smailpur, Tehsil & District Samba was hidden, who caught hold of his wife and forcibly committed rape on her and also forcibly snatched away her ear rings. She returned home weeping and narrated about the entire incident to him. He told about the incident to the Sarpanch and other respectable of the village. Upon this oral complaint a case FIR No.138/2011 under Sections 376/382 RPC registered and investigation commenced. During the course of investigation, visited the spot, a site plan prepared, one washed Salwar seized, however, did not sent the same to FSL for chemical examination. The prosecutrix also subjected to medical examination and medical report also collected. The accused also subjected to medical examination in order to ascertain as to whether he is capable to commit sexual intercourse and his medical report also collected. The statement of the prosecutrix under Section 164-A Cr.P.C. got recorded. The statements of other prosecution witnesses also recorded under Section 161 Cr.P.C. The contents of the charge sheet read over and explained to the accused, however, he pleaded not guilty and claimed to be tried.
Accordingly, the prosecution was directed to lead evidence in order to substantiate the allegation levelled against the accused. The prosecution in order to prove the allegation against the accused, produced and examined the prosecutrix, Vinod Kumar, Parshotam Singh, Dr. Manjusha Bajaj, Dr. Jaspreet Singh and Vipan Kumar and prosecution witnesses.
3. The resume of the prosecution evidence is as under:-
PW-1 Prosecutrix stated in examination-in-chief that the accused is known to her. On 15.10.2011 at 5.30 AM as soon as she sat to defecate in the field behind her house, the accused who was hidden in the bushes appeared before her, caught hold of her and having dragged, took her in the field. She was crying, thereafter having caught hold of her by the hands and feet took her little ahead and started undressing her. She again cried where the accused made an attempt to commit “Gallat Kaam”(wrong act) on her, however she got herself freed from the accused. The accused then again caught hold of her by the hand and took her ahead where the accused committed “Gallat Kaam”(wrong act) on her. The accused also grasped her mouth owing to which she sustained marks on her face. The witness has shown such marks in the court. She further stated that she also sustained other marks on her body due to aforesaid act of the accused. She further stated that she became unconscious and later she narrated the above incident to her husband and her husband had told about the incident to his landlord. She alongwith others had gone to the Police Station, Bari Brahmana. She was medically examined at Gandhi Nagar hospital. Her statement was recorded in the court. The police had also recorded her statement.
During cross-examination stated that she has been residing with her husband as tenant at Smailpur for the last four years. The name of her landlord is Parshotam Singh Katal. There are three other Kothies behind the house of Parshotam Singh. The name of the owner of one Kothi is Raju. When she returned from the place of occurrence, Raju was also present in the house of her landlord. She had sustained marks on her feet and
