Chintamani vs State of M.P.

Pritinker Diwaker, J.—This appeal arises out of the judgment and order dated 31.12.1997 passed by First Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 46/96 convicting the accused/appellant for the offence under sections 506 and 376(1) of IPC and sentencing him to undergo rigorous imprisonment for one year u/s 506 of IPC and rigorous imprisonment for seven years with fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for six months u/s 376(1) of IPC. Both the sentences were directed to run concurrently. Brief facts of the case are that on 17.09.1995, FIR (Ex.-P/1) was lodged by the prosecutrix (PW-1), aged about 13 years alleging in it that on 31.08.1995 on the eve of Ganesh festival she had gone to the house of Premlal (PW-4) where accused/appellant came and asked her to go to his house for fetching water. After reaching his house, appellant asked her to get paddy which was kept on the loft of his house. She has alleged that when she went to bring the same, appellant also came there, threw her on the floor, removed her and his undergarments and after threatening her of life, committed forcible sexual intercourse. She has further alleged that after commission of offence appellant again threatened her by saying that he would kill her in case she disclosed the incident to anyone or lodged a report. On account of the incident her petticoat was stained with blood which was washed by her. On the second day she informed the incident to her maternal grand-mother Mahntin Bai and Nirabai Satnami and five days thereafter she also informed the incident to Bisoha Satnami, Mapu Satnami and village Kotwar. Based on this FIR offence under sections 376 and 506 of IPC was registered against the appellant. Prosecutrix was medically examined on 17.09.1993 vide Ex. P-5 by Dr. Smt. Jyoti Sadani (PW-11). After completion of investigation Challan was filed on 04/11/1995 against him for the said offence.

So as to hold accused/appellant guilty, prosecution has examined 15 witnesses in support of its case whereas two witnesses have been examined by the defence in support of its case. Statement of accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties the trial Court convicted and sentenced the appellant for the offences under Sections 376(1) and 506 of IPC. Hence, the present appeal.

Contention of Smt. Jain, learned counsel for the appellant is that there is an inordinate delay of 17 days in lodging the FIR and the said delay has not bean explained properly by the prosecution. She submits that medical and FSL report of the prosecutrix does not support prosecution case and no internal or external injury was found on her person. It has been argued that as certain payment was not made by the appellant to the prosecutrix, he has been falsely implicated.

On the other hand supporting the impugned judgment it has been argued by Shri Shrivastava, learned counsel for the State that the impugned judgment is strictly in accordance with law and there is no infirmity in the same. He submits that the delay in lodging the FIR has been explained by the prosecutrix by saying that as she was under threat, she could not lodge the report. Further it has been argued that the prosecutrix was a minor girl of 13 years and in the facts and circumstances of the case, 17 days delay in lodging the FIR is to be ignored.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

As at the time of recording of court statement of the prosecutrix she could not tell her age, it has been observed by the trial Court that she was not in a position to state her age but by appearance she looked to be aged about 15-16 years. Prosecutrix (PW-1) has stated that when she was very young, she lost her parents and she is living with her maternal grand mother Mahntin (PW-2) and since her childhood she was working in the house of appellant. On the date of incident she had gone to the house of Premlal on the eve of Ganesh festival to collect Prasad where the appellant came and asked her to go to his house for fetching water. After reaching his house, appellant asked her to get paddy from the loft and when she went there, she did not find the same. Thereafter, appellant also went there, threw her on the floor, removed her petticoat and underwear and subjected her to rape. She has stated that on account of penetration of his male organ into her private part she started bleeding and when she tried to raise cry, appellant inserted a piece of cloth into her mouth. Accused/appellant also threatened her by saying that if she disclosed the incident to anyone he would kill her. After commission of offence, on being asked by appellant, she washed her blood stained clothes in his house and even after returning to her house she did not disclose the incident to any one. However, she was feeling pain in her private part and also suffering from fever. According to her, when she could not go to her work place, her maternal grand mother asked the reason on which she informed her the entire incident who in turn informed the same to the villagers. She has stated that on account of the death of an old man in her village, the report could not be lodged immediately and it was lodged after about 2-4 days. She has further stated that at the time of lodging the report her maternal grandmother, village Kotwar and Prem had accompanied her to the Police Station and the report Ex. P-1 was lodged by her. She was medically examined, her X-ray was taken, her petticoat and underwear was seized and spot map Ex. P-4 was prepared. In cross-examination, prosecutrix has reiterated as to in what manner she was subjected to rape by the appellant however there appears to be material omissions and contradictions in her court statement from that of her case diary statement.

Mahntin (PW-2) maternal grand mother of the prosecutrix has stated that after death of the parents of prosecutrix she is living with her and since childhood prosecutrix and she too were working in the house of appellant. She has stated that one day prosecutrix was sleeping in her house and upon being asked the reason prosecutrix told that she was feeling pain in her private part and after enquiry she informed the entire incident to her. She has stated that for about two days on account of fear prosecutrix did not tell her anything and after knowing the incident she informed the same to Guha, Mungu and the Sarpanch of the village and then the report was lodged. In cross examination she has stated that prosecutrix informed the entire incident to her after about five days thereafter and she was under pain for about 3-4 days for which she was treated by her. According to her, all these facts were narrated by her to the police and if the same have not been recorded she could not tell the reason. She has stated that no village meeting was called before lodging the report and she has denied the fact that she demanded Rs. 3,000 from the appellant for not lodging the report.

Kamla Bai (PW-3), village Kotwar, has stated that maternal grand mother of the prosecutrix informed her that prosecutrix was subjected to bad work by appellant and requested her to go with her to lodge the report. Thereafter she enquired from the prosecutrix about the incident which was confirmed by her and accordingly she accompanied the prosecutrix, her maternal grand mother and Prem to lodge the report. Various suggestions were given to this witness during her cross-examination but she has denied the same. Premlal (PW-4) in whose house Ganesh festival was being celebrated has stated that appellant came to his house and took prosecutrix with him for fetching water. He has stated that about 8-9 days after the incident he was informed by prosecutrix that she was subjected to rape by appellant and as per the advice of the villagers the report was lodged. There appears to be some omissions and contradictions in the statement of this witness. Kapilram (PW-5) is a seizure witness of Ex. P-3 by which underwear of the appellant was seized, however, this witness has been declared hostile. Bisesing (PW-6), uncle of appellant has stated that he was informed by prosecutrix as to in what manner she was subjected to rape by appellant in his house. He has stated that his house is adjacent to the house of appellant and he saw prosecutrix washing her blood stained clothes in the house of appellant. However, in cross-examination he has admitted the fact that there is dispute regarding partition between him and father of appellant and the cases related thereto are pending in the Court. Nira Bai (PW-7) has stated that after about 8 days of the incident she was informed by prosecutrix as to in what manner she was subjected to rape by appellant. There appears to be some contradictions in the court statement of this witness from that of her case diary statement Ex. D-5. Kanhaiya (PW-8), husband of Nira Bai has made almost similar statement as has been made by Nirabai (PW-7). Mehtar (PW-9) has stated that the entire incident was disclosed to him by the prosecutrix and she had shown her blood stained underwear to him which was washed by her. He also accompanied the prosecutrix at the time of lodging the report. There appear to be material omissions and contradictions in his court statement from that of his case diary statement Ex. D-7. Anandram Markam (PW-10) is the Patwari who had prepared the spot map Ex. P-4. Dr. Smt. Jyoti Sadani (PW-11), the Lady Doctor who medically examined the prosecutrix vide Ex. P-5 has not found any injury on her private part. She has stated that hymen of prosecutrix was irregular and her vagina was admitting one finger with difficulty and she was complaining pain. According to her, on internal examination of prosecutrix, she did not find any positive evidence of rape and for determination of age she had advised for X-ray. Dr. P. Meshram (PW-12), who had examined accused/appellant vide Ex. P/7 has stated that he was capable of performing sexual intercourse. Lady Constable Fulorence Hansda (PW-13) took the prosecutrix for medical examination. A.K. Pipre (PW-14), the Investigating Officer has duly supported the prosecution case. G.S. Thakur (PW-15) took the X-ray of prosecutrix and his report is Ex. P-13. According to him prosecutrix was aged about 14 years. In cross-examination he has stated that there could be variation of 2-3 years on either side in the age of prosecutrix.

Brother of appellant namely Hasan (DW-1) has stated that the appellant was living in his house with his wife, three children and mother whereas he himself was living with his wife and four children. He has stated that courtyard of his house and that of appellant is common and likewise the entry gate is also common. He has further stated that on the eve of Ganesh festival he was in his house with his family members and likewise the family members of appellant were also in their house and prosecutrix was not working in the house of appellant. Shailendra Kumar (DW-2) has stated that his house situates opposite to the house of appellant and after about 8-10 days of Ganesh festival Police had come to his village and made enquiry from the appellant.

Undisputedly, there is inordinate delay of 17 days in lodging the FIR. According to the prosecutrix, on 31.08.1995 at about 5 p.m. she was allegedly taken by the appellant to his house where she was forcibly subjected to rape by him. She has stated that after commission of offence, appellant asked her to wash her clothes and after doing the same she came back to her house, however, she was feeling pain in her private part. According to her, she had fever and when she did not go to her work place, her maternal grand mother Mahntin Bai (PW-2) asked her about the same and after two days she informed her about the entire incident who in turn informed the same to the villagers. She has stated that during this period one elderly person of the village had expired and therefore the report was lodged after about 2-4 days of the said incident. Similarly, according to the maternal grand mother of the prosecutrix Mahntin (PW-2), she saw the prosecutrix sleeping in the house and on being asked the reason, it was informed by the prosecutrix that she was feeling pain in her private part and then she further informed her as to in what manner she was ravished by the appellant. She has stated that for about two days prosecutrix did not inform the incident to her but after coming to know about the same, she informed the other villagers including the Sarpanch of the village about the incident and then the report was lodged. In cross-examination she has stated that after about five days of the incident, prosecutrix narrated the entire incident to her and on the second day of the incident she did not inform him anything. She has further stated that the prosecutrix was under pain for about 3-4 days for which she was treated and this fact was also informed by her at the time of her case diary statement Ex. D-1 and if the same has not been recorded she could not tell the reason. She has stated that after about eight days of the incident the report was lodged. From the statement of the prosecutrix (PW-1) and her maternal grand mother (PW-2) it is apparent that both of them could not properly explain the delay in lodging the report. If the statements of these witnesses are read together it appears that within a day or two from the incident the fact was in the knowledge of Mahntin (PW-2) who also treated the prosecutrix but yet both witnesses kept silence and lodged the report after about 17 days. True it is that the witnesses are villagers but from their statement it appears that they understood the other things very well but could not explain the inordinate delay of 17 days in lodging the FIR. It is settled position of law that even delay in lodging the FIR in a rape case can be accepted but for that there has to be sufficient reason for explaining the same. In the case in hand, the inordinate delay in lodging the FIR has not been explained properly by the prosecutrix and her maternal grand mother (PW-2). That apart, as per village Kotwar Kamla Bai (PW-3) the incident was informed to her by Mahntin Bai (PW-2) and then she accompanied the prosecutrix and Premlal (PW-4) to lodge the report. In cross-examination this witness has stated that neither prosecutrix nor her maternal grand mother (PW-2) informed her about the date of incident. She has further stated that in her case diary statement the date of Ganesh festival was never told by her as 31.08.1995 to the Police and if the same has been recorded she could not tell the reason. This witness has gone to the extent of saying that she was informed by the prosecutrix that one day prior to lodging the report Ex. P-1 when they had gone to lodge the report, the same was not registered by the Police whereas no such statement has been made by prosecutrix or her maternal grand mother (PW-2). As per Premlal (PW-4) from whose house accused/appellant took the prosecutrix with him, after 8-9 days of the incident prosecutrix informed him about the incident but even this witness could not give any satisfactory explanation about the delay of 17 days in lodging the FIR. In cross-examination this witness has stated that he did not remember as to whether he informed the Police about the date of incident as 31.08.1995 being a day of Ganesh Chaturthi and according to him the same could be 29.08.1995 also. He has further stated that he did not remember as to on which day appellant came to his house to call the prosecutrix. As per the statement of Nira Bai (PW-7) she was informed about the incident by the prosecutrix after eight days of the incident when the prosecutrix had come to her house to watch television but here also there is no justification for this witness in keeping silence for 17 days. Almost similar statement has been made by Kanhaiya (PW-8), husband of Nira Bai who also came to know about the incident after eight days of the incident but he too kept silence for number of days. Considering the entire evidence in respect of delay in lodging the FIR, this Court finds that no satisfactory explanation has been given by the witnesses in their statement. Further, even the FSL report does not support the prosecution case.

As per the statement of the prosecutrix, after taking her to his house accused/appellant threw her on the cemented loft and committed forcible sexual intercourse with her and that she also sustained injury on her back. According to the prosecutrix when she was being subjected to rape by the appellant, she started bleeding and after commission of offence appellant asked her to wash her clothes and after washing the same she returned to her house without informing the incident to anyone as she was threatened by him. If this statement of prosecutrix is considered with the statement of Dr. Jyoti Sadani (PW-11) then again the statement of Prosecutrix creates doubt in the mind of this Court. According to Dr. Sadani (PW-11) secondary sexual characters of the prosecutrix were not fully developed, no internal or external injury was found on the person of the prosecutrix, her hymen was found to be irregular, her vagina was admitting one finger with difficulty and there was no sign of forcible sexual intercourse. This witness has stated that for determination of age of the prosecutrix she referred her for X-ray. Another question which requires consideration by this Court is whether the irregular margin of hymen will probabilise an act of sex. Lyon in his Medical Jurisprudence for India Tenth Edition 1999 about irregular hymen at page 414 has commented as follows: As a rule the hymen is moderately thin, but it may be thick and fleshy. The edge may show little or no irregularity, or it may be very irregular, so much so that an incautious examiner might mistake these natural irregularities for tears. Unlike the tear these irregularities never extent down to the base of the hymen. The hymen with a markedly irregular edge is said to be fimbriated. The tenderness of the membrane varies greatly; in some women it is so marked that very slight abduction of the thighs and separation of the labia will put it on the stretch, in others the hymen is so lax and folded on itself that wide abduction of the things is required to make it tense. The fringe-like annular hymen or the much folded one of any shape, may allow of intercourse taking place without rupture of the membrane. In the vast majority of cases, however, it is torn on first intercourse. The tear may be single or there may be more than one rupture. The usual situation of the single tear is posteriorly, somewhat to one or other side of the middle line. If there are two tears one may be on each side of the median line. More than two tears are unusual. The rupture extends down to the base of the hymen.

It is evident from the above that irregular margin of a hymen is no indication of sexual intercourse but such a hymen may be present in a virgin.

In paragraph-10 of her statement prosecutrix has admitted the fact that for beating one Mehtar, she and her maternal grand mother (PW-2) were punished by the villagers and they were directed to give Rs. 50 each to him and brother of appellant namely Hasan (DW-1) was also one of the persons who imposed punishment on them. Though she has denied the fact that on account of dispute between appellant and Bisoha, Bichhi, Nathu end Chamru, at the instance of Bisoha, the report was lodged but from the statement of Kamla Bai (PW-3), Bisesing (PW-6) it appears that there was some dispute in the village. Uncle of the appellant Bisesing (PW-6) has gone to the extent of saying that the prosecutrix informed him about the commission of offence and that from the wall of his house he saw the prosecutrix cleaning her blood stained underwear. He has further stated that on the second day he asked the prosecutrix about the said fact. According to him all these facts were narrated by him to the Police at the time of recording his case diary statement Ex. D-4 but if the same has not been recorded, he could not tell the reason. In the statement of the witnesses in particular Mahntin Bai (PW-2), Kamla Bai (PW-3), Premlal (PW-4), Bisesingh (PW-6), Nira Bai (PW-7), Kanhaiya (PW-8) and Mehtar (PW-9) there appear to be material omissions and contradictions in their court statement from that of their case diary statement.

True it is that in a case of rape, solitary evidence of the prosecutrix is sufficient to convict an accused if the same is absolutely trustworthy, unblemished, of sterling quality, without any shortcoming and thereby inspires full confidence of the Court. Unfortunately, this is not the position in the case in hand. Evidence of the prosecutrix and her maternal grand mother (PW-2) on material particulars carries several lacunae as required under the law. Further, statement of the prosecutrix does not inspire confidence of this Court, she does not appear to be a trustworthy witness and the inordinate delay of 17 days in lodging the FIR has not been explained by the prosecution as required under the law. Considering the overall evidence adduced by the prosecution, this Court is of the considered view that the prosecution has not been able to prove the charges against appellant beyond all reasonable doubt and that being so the appellant is entitled for benefit of doubt. Accordingly, the appeal is allowed. Impugned judgment and order of the Court below convicting and sentencing the appellant under Sections 506 and 376(1) of IPC is hereby set aside and the appellant is acquitted. Since appellant is on bail, his bail bonds stand discharged.