Back
2019 Supreme(J&K) 401
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Rajinder Singh – Petitioner
Versus
State of J&K - Respondent
CRA No. 42 of 2016
Decided On : 26-04-2019
Advocate Appeared:
For the Petitioner:Mr. O. P. Thakur, Advocate.
For the Respondent: Mr. Amit Gupta, AAG.
Headnote:
Indian Penal Code1860 - Section 376 - Section 376 – Criminal Procedure Code1973 - Section 164-A- FIR - Case of rape - Case is that prosecutrix name withheld approached Police Station through an application and on said application was registered on same day - In said FIR prosecutrix has mentioned that for about last years she has relations with appellant Singh who had promised to marry her and on this pretext he had raped her many times and has now refused to honor his promise and is going to solemnize marriage with some other girl - It was also alleged that at night appellant herein forcibly took prosecutrix to a field where he raped her - On this report came be registered with Police Station Kanachack Jammu for commission of offence Section - Investigation of case was entrusted to Inspector - During course of investigation prosecutrix was not medically examined her statement Section was recorded and it was found that the prosecutrix has been raped by accused and investigation was culminated in commission of offence Section against accused appellant –Held, Court is to be believed it does come to fore that two were in relationship and she well knew that accused was duping her throughout - Per prosecutrix she had not succumbed to proposal of accused - Having allowed access to accused to her residential quarter so much so even having allowed him to stay overnight she knew likely outcome of her reaction - Seeing age of prosecutrix which is around 40 years it can be easily inferred that she knew what could be consequences of allowing male friend into her bed room at night case that the consent had been given by prosecutrix believing accuser’s promise to marry her - For her testimony itself shows that entire story of marriage has unfolded after when accused was stated to have been summoned to office there is nothing on record show that accused had been pestering prosecutrix for any alliance - Prosecutrix has said line in her examination in chief but her cross examination shows that no doubt two were in relationship but question of marriage apparently had not been deliberated upon by any of two - After sexual contact come talk about marriage had cropped up between two - Thus it also cannot be said that consent for sexual intercourse had been given by prosecutrix some misconception of marriage - Appeal allowed
JUDGMENT :
1. The instant criminal appeal has been filed by the appellant against judgment dated 11.08.2016 passed by 3rd Additional Sessions Judge, Jammu (Fast Track Court) in Challan no. 43/challan vide FIR no.160/2013 titled State v/s Rajinder Singh u/s 376 RPC by which appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine to the tune of rupees 50,000/-.
2. The factual matrix of the case is that the prosecutrix (name withheld) approached the Police Station Kanachak on 10.09.2013 through an application dated 10.09.2013 and on the said application an FIR was registered on the same day. In the said FIR the prosecutrix has mentioned that for about last 10 years she has relations with appellant-Rajinder Singh, who had promised to marry her and on this pretext he had raped her many a times, and has now refused to honour his promise and is going to solemnize marriage with some other girl. It was also alleged that on 08.09.2013 at night appellant herein forcibly took the prosecutrix to a field where he raped her. On this report, FIR No.160/2013 came to be registered with Police Station, Kanachack, Jammu for commission of offence under Section 376 RPC. The investigation of the case was entrusted to Inspector Jatinder Raina. During the course of investigation, the prosecutrix was got medically examined, her statement under Section 164-A Cr.P.C was recorded and it was found that the prosecutrix has been raped by the accused and investigation was culminated in the commission of offence under Section 376 RPC against the accused/appellant.
3. The accused was charge sheeted on 25.03.2014 for offences under section 366/376/506 RPC; he denied the accusation and court below after completion of trial, convicted the accused by virtue of impugned judgment and sentenced him accordingly.
4. The appellant has challenged the impugned judgment dated 11.08.2016 on the following grounds:-
That the Challan was produced against the appellant. 10 witnesses were cited in the Police Challan and statement of all the witnesses was got recorded before the Court, except Doctor Davinder Sanotra PW 7 and his evidence was discarded by the APP and PW 4 Reham Ali did not support the prosecution case about seizure of Condoms and Cluther of Prosecutrix from the place of incident.
That when Prosecutrix appeared before the Court, she tried to set up a different case. She changed the place of her meeting with the accused and she has also concealed that she travelled on the motor cycle of the accused from Chatha Gujran to the alleged place of incident. There is material contradiction between the statement of the Prosecutrix in her application for the registration of F.I.R, her statement under section 164-A Cr.P.C, and her statement recorded before the Court. There is material improvements in her statement which could go to the roots of the case. The statement of the Prosecutrix is contradictory with her own statements and with the statement of her mother Soma Devi. The statement of the Prosecutrix is not supported by the Medical Evidence. The doctor has categorically said that there is no Sexual Intercourse committed with the Prosecutrix within 72 hours where as her medical was conducted within 27 hours from the alleged incident. Prosecutrix has alleged that she was raped thrice but no mark of violence was found on her body, she further alleged that she was beaten by the accused but no injury was found on the person of the Prosecutrix. According to the prosecutrix she was of 24 years of age at the time of alleged incident and accused was of 30 years. She was a mature lady and single handed intercourse is not possible without her consent and she stayed for full night with the accused and there was habitation about 100 meters distance from that place and she was provided with dinner but she has not complained or raised any voice. She further projected a case that there is love affair between her and the accused and for the last 10 ye
