Bir Singh Mhato vs The State of Bihar

D.G.R. Patnaik, J.—This appeal has been filed by the appellant against the judgment and order of conviction and sentence dated 14.6.2000 passed by the trial court in Sessions Trial No. 108 of 1999 whereby the appellant has been convicted for the offence u/s 376 and sentenced to undergo five years rigorous imprisonment.

The case against the appellant was registered on a complaint lodged by the prosecutrix (PW9).

The case of the prosecution is that on the morning of 59.1998 the husband of the prosecutrix had gone to his paddy fields for ploughing. At about 9.00 a.m. the prosecutrix proceeded to meet her husband carrying lunch for him. It was on her way while she was crossing through the forest area that the appellant suddenly arrived from behind and after pressing her mouth, he dragged her to the nearby bushes where after felling her on the ground, he committed rape on her forcibly and thereafter fled away. On her alarms, her husband arrived. She narrated the incident to him. Accompanied by her husband, she went to the Police Station where the case vide Raj Nagar P.S. case No. 49 of 1998 was registered on the basis of the written report and she was forwarded to the hospital for her medical examination. After concluding investigation, the investigating officer submitted chargesheet against the appellant recommending his trial for the offence under 376 of the Indian Penal Code. Cognizance of the offence was taken against the appellant who was put on trial.

At the trial, the plea taken by the appellant in defence is that he happens to be a cousin brother of the informant and on account of land dispute, he has been falsely implicated in the case.

At the trial as many as nine-'' witnesses, including the prosecutrix, her husband, the doctor who had examined the prosecutrix and other co-villagers were examined by the prosecution. On considering the evidence of the prosecution witnesses, the trial court placed reliance on the testimony of the prosecutrix and finding support from the evidence of her husband, recorded its finding of guilt against the appellant for the offence u/s 376 IPC and convicted him accordingly.

The appellant has assailed the impugned Judgment of his conviction on the following grounds:

(i) that the trial court has erred in placing implicit reliance on the testimony of the prosecutrix without considering the fact that the theory of rape is totally belied by the medical evidence;

(ii) the trial court has failed to consider that even in the testimony of the prosecutrix, as compared to the testimony of her husband, there are several inconsistencies and improbabilities which falsify the case of the prosecutrix;

(iii) place of occurrence has not been firmly established since the description given by the prosecutrix in her evidence is contradicted by the description given by PW8;

(iv) non examination of the investigating officer has caused serious prejudice to the appellant in his defence, in as much as the place of occurrence could have been established by his evidence and furthermore, certain contradictions appealing in the statement of the witnesses could have been elicited;

(v) no reliance could have; been placed on the testimony of the prosecutrix and her husband since admittedly they were inimical to the appellant on account of previous land dispute.

Mr. B.M. Tripathy, Senior Advocate arguing for the appellant submits that from the evidence of the prosecutrix, it would appear that while she was on her way to the paddy field to meet her husband, she was suddenly accosted on the way by the appellant who dragged her to the nearby bushes and after putting the metal vessel on the ground which she was carrying on her head, he felled her on the ground and after covering her face and gagging her mouth by lifting her saari, he forcibly committed sexual intercourse with her. She also claims that she tried to resist but could not succeed to prevent the appellant from committing rape on her. She also claims that she also sustained injuries and bruises on her body and the sexual act committed by the appellant continued for about half an hour. During this period, she could not raise alarms. Learned Counsel adds that the medical evidence of the doctor (PW7) confirms that though she had examined the prosecutrix on 6.9.1998 at 2.10 p.m. but she did not find any sign of rape, nor was any external injury found on the person of the prosecutrix, nor any spermatozoa was found in the vaginal swab of the prosecutrix.

Learned Counsel argues that in absence of any evidence of the prosecutrix that she had washed herself prior to her medical (examination, then traces of spermatozoa ind some sign of rape was bound to be present when she was examined by the doctor (PW7). The absence of any such trace categorically indicates that the allegation of rape is totally false.

Learned Counsel argues next that the testimony of the husband of the prosecutrix is not an eye witness account and even otherwise, it contradicts the statement of the prosecutrix. Referring to the evidence of PW6, husband of the prosecutrix, learned Counsel submits that this witness has claimed that he had come running to the place of the occurrence on hearing alarms of her wife and from a distance, he had seen the appellant going away. The wife, however, claims that she could not and did not raise alarms during the entire period when she was subjected to sexual intercourse and that it was only after the appellant had left her and departed that she raised alarms. At the same time, the prosecutrix claims that the place of occurrence is located at a distance of about � kilometre from the paddy field. Learned Counsel argues that from such a distance, it is not probable that the alarms of the lady could be heard by her husband and even if he heard, it is highly improbable that he could see the appellant at or any where near the place of occurrence.

Referring to the place of occurrence, learned Counsel submits that the place of occurrence has not been specifically described.

The prosecutrix claims that the place of occurrence was the forest area within bushes by the side of the footpath. Her brother in law (PW8) claims that the place of occurrence, as shown to him by the prosecutrix herself, is the paddy field belonging to a co-villager, situated by the side of road. According to the learned Counsel, if the statement of PW8 is believed, then the place of occurrence was an open area visible to all and it is not likely that the appellant would commit sexual assault on an unwilling lady without first ensuring privacy and cover from public gaze. Learned Counsel adds that non examination of the investigation officer has caused serious prejudice to the appellant in his defence, since he has not been able to assess the exact place of occurrence and also the contradictions appearing in the statements of the prosecutrix and her husband as compared to their respective statements made before the investigating officer in course of investigation.

Learned Counsel argues next that in the light of the admission made by the husband of the prosecutrix that there was previous litigation with respect to a land dispute pending between him and the appellant, there was definite enmity between them and the possibility of implication of the appellant on false allegations in order to avenge his grudge and malice against the appellant cannot be ruled out.

Learned Counsel for the State while supporting the impugned judgment of conviction and sentence of the appellant as recorded by the trial court controverts the grounds raised on behalf of the appellant. Learned Counsel argues that the prosecutrix is a married lady and by her description regarding the manner of assault made on her, it would transpire that the appellant gagged her mouth by covering her face with her saari and after pulling her down on the ground, committed rape on her. She could not succeed in resisting the assault made on her and had to resign to the force of the appellant. Furthermore, she was examined more than 30 hours after the alleged occurrence. Learned Counsel argues further that the presence of trace of spermatozoa or external injury on her body or sign of sexual intercourse is therefore not of serious consequence to the prosecution case. It is further argued that there is no inconsistency in the description of the place of occurrence. According to the prosecutrix while going to meet her husband, she was crossing the forest area. The appellant had accosted her while she was walking along the footpath and dragged her towards the near by bushes. The bushes provided a protective cover from public vision. The statement of PW8 that the place of occurrence by the side of the footpath falls within the paddy field of the co-villager, according to the learned Counsel, do not constitute serious contradiction regarding the place of occurrence. As regards non examination of the investigating officer, it is explained that non examination has not caused any serious prejudice to the appellant in his defence, since no contradiction has been elicited from the statement of the witnesses.

As observed above,, the trial court has extensively relied on the testimony of the prosecutrix finding support from the testimony of her husband (PW6).

It is by now established by a catena of decisions of the Supreme Court that the conviction for offence of rape can be based on the testimony of the prosecutrix even if it is uncorroborated and the absence of any support from medical evidence is not fatal or sufficient to disbelieve the testimony of the prosecution, and if the testimony of the prosecutrix inspires confidence and is reliable, conviction can certainly be based on her testimony. Nevertheless, applying the rule of caution, it has to be seen as to whether the testimony of the prosecutrix suffers from any inherent infirmity or improbability which could create doubt in the veracity of her statement. If there are elements which create doubt, then her evidence has to be tested by taking recourse to corroborative and supportive evidence and if no such corroborative evidence is available, then only an inference of doubt at the veracity of her statement can be sustained.

In the instant case, the place of occurrence as described by the prosecutrix is located at a distance of about five or six hundred yards from the paddy field where her husband had gone for ploughing. Furthermore, the place of occurrence was covered by bushes and at the time of the occurrence, except the prosecutrix and the appellant, there was no one in the vicinity within visible distance. The manner of occurrence described by the prosecutrix suggests that she could not offer much resistance and she had to yield to the superior might of the appellant who had covered her face and gagged her mouth. Under such circumstances, she being a married lady, there could be no possibility of her suffering injury while the sexual act was committed on her. Absence of any injury on her body when she was examined medically after 30 hours of the occurrence does not create any serious discrepancy in her testimony. It further transpires that the FIR was lodged on the date of the occurrence itself at the police station after a gap of nine hours, but her medical examination was conducted on the following clay in the afternoon. Thus, possibility of the lady having washed herself in the morning of the following day before she was medically examined, cannot be ruled out. Under such circumstances, it was not likely that any trace of spermatozoa could be found in her vaginal swab at the time of her medical examination.

The description of the occurrence as given by the prosecutrix obtains corroboration, although to a limited but significant extent from the testimony of her husband. In his evidence, the husband claims that when he came towards the place of occurrence, he found his wife weeping. He found that her saari was cast aside and she was wearing only her petticoat. Her blouse was also found partly torn. She narrated to him the incident and the offensive act the appellant had committed on her. He further claims that while approaching the place of occurrence, he saw from a distance the appellant going away. The statement of the prosecutirx given to her husband who had arrived immediately after the occurrence assumes significance and relevance. Furthermore, both of them claim that they had come home and narrated the incident to the members of the family. These members were examined by the prosecution. Though their testimony is hearsay, it confirms the fact that on her arrival home, they found the prosecutrix weeping and in a shattered condition and she had disclosed the incident to them. All these evidences taken together offer sufficient corroboration to the testimony of the prosecution. There is nothing in the testimony of the prosecutrix which could create any impression of doubt. The trial court has rightly found the testimony of the prosecutrix as reliable.

As regards the place of occurrence, as rightly pointed out by the learned Counsel for the Stale, there does not appear any inconsistency. The description of the place of occurrence has been adequately given by the prosecutrix. According to her, the place of occurrence is within the bushes situated by the side of the footpath within the forest area. PW8 in his deposition has though stated that the place of occurrence is the paddy field of a co-villager, but the description given by him also suggests that the place of occurrence is by the side of footpath. Even otherwise, since PW8 is not an eye witness and his description of the place of occurrence on the basis of what he heard from the prosecutrix, can hardly be relied upon.

The appellant has argued that he has suffered prejudice on account of non examination of the investigating officer. Such prejudice, according to the defence, is on account of purported controversy regarding the place of occurrence and the contradictory statements made by the witnesses including the prosecutirx and her husband at the trial as compared to what they stated before the investigating officer.

On perusal of the testimony of the prosecutrix it appears that the purported contradictions are nothing but an explanation of the manner of the occurrence and the details thereof elicited by the defence in her cross examination, though statements do not appear to have been made by her in her examination-in-chief. If the defence has obtained certain statements from the witnesses by putting words in their mouth in course of their cross examination, though such statements do not appear in the examination-in-chief of the witnesses, the defence cannot claim statements elicited in cross examination as contradicting the earlier statements made in course of investigation. Even otherwise, the statements are only detailed description of the manner of occurrence and there is nothing to suggest that non examination of the investigating officer has caused any serious prejudice to the appellant in his defence. The appellant contends that he has been falsely implicated on account of previous land dispute. In this context, the appellant has elicited admission of the informant''s husband that there was a previous litigation pending between him and the family of the appellant on account of land dispute. This statement in itself does not lead to the conclusive inference that the informant has falsely implicated the appellant in a false case going even to the extent of raising a false allegation of rape of his wife by the appellant and thereby exposing the honour and dignity of the lady to public shame and ignominy.

In view of the above discussions, I do not find any merit in this appeal. Accordingly, this appeal is dismissed. The impugned judgment of conviction and sentence of the appellant is hereby sustained.

The appellant is on bail. His bail bond is cancelled and he is directed to surrender himself before the trial court forthwith to undergo the sentence imposed against him. Needless to say that the period of detention in custody as under-trial prisoner shall be set off. The trial court shall take necessary steps to secure the attendance of the appellant forthwith.