Ranjit Singh, J.@mdashAppellant-Ramesh is in appeal against the order of his conviction recorded u/s 376 read with Section 511 of Indian Penal Code with the allegation that he had attempted to commit offence of rape of Smt. Santosh wife of Shri Krishan.
2. The prosecution story, in brief, as is revealed from the statement of prosecutrix-Santosh wife of Shri Krishan (PW-7) is that on 27.7.1992, she was alone present in her house when the accused Ramesh came to the house and tried to molest her. PW-7 states that she raised noise and called her brother-in- law (Jeth). Hearing this, accused Ramesh went away leaving the spot. PW-7 has further stated that after some time, she went to the well to fetch water where accused Ramesh again came to her from Peepal side. As per PW-7, there the accused grappled with her, threw her on the ground and laid on her. She has also mentioned that the accused broke open the string of her Salvar, removed his Dhoti and kept the same on his shoulder and made an attempt to commit the offence of rape on her. She has claimed that in order to save her honour, she kicked the accused with her legs and did not allow penetration. Her version then reveals that Kamla and Ram Pyari had reached the spot and seeing these two ladies, the accused fled away from the spot. PW-7 states that she felt so insulted that after coming to her house, she poured kerosene oil on her person and set herself on fire. She, however, was saved by one Kartar (not examined) and others, who were neighbourers of PW-7. He also took her to Civil Hospital, Rohtak. There she had narrated the facts to the Doctor attending on her, who recorded her statement and obtained her thumb impression thereon. On the basis of a Ruqa sent by the Doctor, Police had reached the hospital and recorded FIR. Investigation followed leading to the charge being preferred against the accused u/s 376 read with Section 511, IPC.
3. In support of its case, the prosecution examined 12 witnesses. The accused was confronted with the incriminating circumstances appearing in evidence against him. While being examined u/s 313, Cr.P.C. the accused denied the evidence put to him and in his defence stated that Santosh PW-7 was having physical relations with him. The accused also stated that Smt. Santosh used to take petty loans from him off and on and as such loan amount accumulated to a sum of Rs. 2,000/-. As per the accused, Santosh promised to pay back the said amount by 26.7.1992. When she failed to do so and the accused happened to meet her on 27.7.1992 on way to the village pond, some verbal altercation took place between them when the accused slapped her. This incident was reported to Panchayat. There, the accused showed his joint photograph with Santosh (PW-7). Santosh felt humiliated upon this. After seeing the photograph, the father-in-law of PW-7 told her to commit suicide or leave the house for ever. It is on account of this humiliation that the prosecutrix set herself on fire leading to her hospitalisation.
4. In support of his stand, the accused had examined one witness, namely, Ram Kumar, and rested his case at that.
5. Additional Sessions Judge, Rohtak, after appreciating the evidence, found that the prosecution was able to establish the charge against the accused and after finding him guilty, sentenced him to suffer rigorous imprisonment for three and half years and to pay a fine of Rs. 1,000/-. It was further directed that in default of payment of fine, the accused shall undergo further imprisonment for six months. It is admitted by counsels for the parties that by now the accused has undergone 18 months of actual sentence.
6. Shri J.S. Bedi, counsel for the appellant, after drawing attention of the court to the evidence of Santosh, PW-7, has submitted that the prosecutrix is not worthy of reliance as there are serious discrepancies in her statement which would render it unsafe to rely on her version. He has further submitted that she made major improvement in her statement, which would further dent the prosecution case. The counsel has argued that it was a clear case of consent and past physical relations between the accused and PW-7. Drawing my attention to a joint photograph of the appellant with the prosecutrix, exhibited on record as Ex. DA, counsel has submitted that the defence taken by the appellant is true and believable. Learned counsel has further submitted the prosecution case is not proved beyond reasonable doubt and accordingly pleaded for acquittal of the accused.
7. Shri Dinesh Arora, Assistant Advocate General, Haryana, appearing on behalf of the State of Haryana has, on the other hand, submitted that the prosecution case is supported by the statement made by PW-7, which is worthy of reliance. Counsel further contends that the joint photograph produced on record showing the appellant and PW-7 together, has been explained by her. As stated by PW-7, the said photograph was got clicked by showing a knife to PW-7 and hence he has pleaded that the trial Court has rightly recorded the conviction of the appellant which is required to be maintained.
8. I have heard the counsels and with their help, have gone through the evidence on record. As can be seen from the evidence of PW-7, the incident narrated by her runs into two parts. PW-7 has stated that the appellant had come to her house when she was alone and attempted to molest her. Here, she is not making any complaint of an attempt to rape. She has further stated that she raised noise and called her brother-in-law (Jeth). Upon this, the appellant allegedly ran away from the place. There is, thus, no allegation made by PW-7 of any attempt to rape her. Otherwise also, there appears to be an apparent contradiction in the statement of PW-7. In her version, she clearly stated that she was present at her house in the morning and that the men-folk had gone for daily routine work. From this, she clearly gave out that she alone was present in the house and no man was present. She stated so justifying an attempt on the part of the appellant to come to her house by showing that she was alone present there. If that be so, then she cannot be expected to call her brother-in-law (Jeth), who admittedly, was not present. If, on the other hand, the presence of her brother-in-law (Jeth) is accepted, then it would cast doubt on the act complained of because it cannot be expected that the appellant would attempt to molest the prosecutrix in her house in the presence of some person like brother-in-law (Jeth) of the prosecutrix.
9. Another aspect which may cast doubt on the prosecution story put in by PW-7 is that if she is believed in regard to this attempt, then she cannot be expected to keep quiet and not complaint about this. Statedly, her brother-in-law (Jeth) was present and she had called him and seeing him, the appellant had run away from the place. Brother-in-law of PW-7 was bound to react and could not be expected to sit quiet. Evidence does not show if he reported this matter. That perhaps was the reason not to examine Jeth before the Court. If produced, he was liable to be questioned as to why he did not pursue the matter by reporting the same. Mr. Bedi has rightly contended that even an adverse inference can be drawn against the prosecution for this. In my case, this incident does not advance the case of prosecution for charge of attempt to rape.
10. Coming to the second part of the incident, counsel for the appellant has submitted that PW-7 has not acquainted herself well and has made material improvements in her statement before the Court. While giving evidence in Court, PW-7 has mentioned that the appellant had left her when Kamla and Ram Piari reached the spot. This fact she has mentioned for the first time before the Court. In her statement made before the Doctor, on the basis of which FIR, Ex. PC was recorded, this fact was not disclosed. PW-7 even did not disclose the names of these two ladies in her supplementary statement. Kamla and Ram Piari were never examined. Kamla was produced in Court and admitted that she had not told about this occurrence to any one after 27.7.1992 till date she made statement before the Court. Ram Piari, however, was never produced as a witness. Prosecution had no explanation to offer as to how this essential witness was brought before the Court first time. PW-7, during her cross-examination, stated that she had told the Police that Ram Piari and Kamla had reached the spot after hearing her noise. In this regard, she was confronted with the statement, Ex. PC wherein this fact was not found mentioned. It is quite obvious that PW-7 never mentioned about the arrival of Kamla and Ram Piari. This is clearly an afterthought and fact introduced deliberately to lend support to the version of PW-7. Names of Kamla and Ram Piari had been mentioned for the first time by PW-7 in her statement before the Court. This would cast a serious doubt in regard to their presence. Thus, a deliberate attempt apparently made to strengthen prosecution story is by itself a very important circumstance which throws doubt on the prosecution case. Moreover, Ram Piari, who was essential witness, was not examined which further dents the prosecution case. This may lead to drawing of adverse inference against the prosecution that the evidence of Ram Piari, which could be and was not produced, would if produced, be unfavourable to prosecution.
11. Still, I could have persuaded myself to overlook the above infirmities but the evidence of joint photograph, Ex. DA of PW-7 with the appellant further dents the prosecution story and lend strength to the case of the defence. PW-7, while giving evidence before the Court, did not make any mention about this photograph. However, when confronted, she stated that one year prior to the occurrence, the appellant had met her at Bus Stand, Rohtak and took her to a photographer by showing a knife and there he got this photograph prepared. This explanation of PW-7 does not sound convincing. If this had been so, she was bound to complain to her husband or in-laws. She never did so. Even perusal of the photograph would show that the prosecutrix is comfortably sitting with the appellant with her hands tied around his shoulder. The photograph, Ex. DA does not give any indication if this would have been obtained in a manner, as stated by PW-7. This apparently is an afterthought to explain the uncomfortable fact which renders the whole prosecution story utterly unworthy of belief. While under cross-examination, PW-7 stated that the action of the appellant in getting her photographed in this manner was not reported to the police. She further mentioned that her father-in-law had lodged protest at the behaviour of the appellant by going to his house. Father-in-law of PW-7 cannot be expected to sit quiet by raising protest in the manner, as stated by PW-7. Since the said father-in-law was not examined before the Court, this fact is again hear-say through PW-7. In this back-ground, the version of the appellant that the prosecutrix had extra-marital relations with him cannot lightly be brushed aside. The explanation given by the appellant is reasonably probable. As per him, he was having physical relationship with the prosecutrix and also used to advance her money as loan. As per the defence, the appellant had demanded this money back, which the prosecutrix failed to return. In this back-drop, when they met on 27.7.1992, there was a verbal altercation between them. PW-7 used filthy language and in retaliation thereof, the appellant slapped her. When the matter went to Panchayat, the appellant had shown the joint photograph to the Panchayat leading to the allegation.
12. Onus of proving all the ingredients of an offence is always upon prosecution. Even in cases where the defence of the accused does not appear to be credible or is palpably fake, the burden does not become any the less. It is said that even where the onus shifts to the accused and the evidence probablises his plea, he will be entitled to the benefit of reasonable doubt. Dr. S.L. Goswami v. State of Madhya Pradesh, AIR 1972 SC 716 may be referred in this regard. This traditional legal concept remains unchanged even now as held by Supreme Court in
13. For the foregoing reasons, I set aside the judgment of Additional Sessions Judge, Rohtak and acquit the appellant of the charge by giving him the benefit of doubt. The appeal is accordingly allowed.
