Dara Malik vs State Of Chhattisgarh

Rakesh Mohan Pandey, J

The instant criminal appeal filed by the appellants herein under Section 374(2) of the Cr.P.C. challenging therein judgment of conviction and order of sentence passed by the Additional Sessions Judge (FTC), Bilaspur (C.G.) dated 30.09.2013 in Sessions Trial No. 66/2013, whereby each of the appellants has been convicted and sentenced as under:-

Conviction

Sentence

Under Section 342/34 of the IPC

Imprisonment for one year and fine of Rs.1,000/- and in default of payment of fine, additional imprisonment for three months

Under Section 323/34 of the IPC

Imprisonment for one year and fine of Rs.1,000/- and in default of payment of fine, additional imprisonment for three months

Under Section 376(D)/34 of the IPC

Imprisonment for life and fine of Rs.3,000/- and in default of payment of fine, additional imprisonment for one year

It is also directed that all the sentences shall run concurrently

As per the prosecution story, on 05.02.2013 at about 16:10 hours, the victim (PW-1) lodged F.I.R. against the appellants making allegations that on 04.02.2013 at about 08:00 PM while she was watching TV, appellant No. 2 Bharat Chimote tried to enter into the house and he was driven away by the victim. Thereafter, at about 08:30 PM, both the appellants i.e. Dara Malik (A-1) and Bharat Chimote (A-2) entered into her house, gagged her mouth and took her to the house of Sadhmati (PW-3), where both of them committed forcible sexual intercourse upon her. The appellants took her to house of one Sambhu Malik at about 11:00 PM where his wife Ganeshi Bai @ Guddi (PW-2) was present. Guddi tried to rescue the victim, but she was threatened for her life and thereafter, both the appellants again committed sexual intercourse with the victim. The victim was driven away from the house of Guddi (PW-2) at about 04:00 am on 05.02.2013. At about 07:00 am, the victim narrated the incident to the neighbors and thereafter, she approached to the police station for lodging the F.I.R. On such complaint, police registered the F.I.R. (Ex.-P/1) for offence punishable under Sections 342, 376(D), 323 read with Section 34 of the IPC against the appellants.

Consent of the victim (PW-1) was taken for medical examination vide Ex.-P/2. The undergarments of the victim and the appellants were seized vide Ex.-P/3, Ex.-P/4 and Ex.-P/5. The victim was medically examined by Dr. (Smt.) Rama Ghosh (PW-12) on 06.02.2013 vide Ex.-P/9. The appellants were medically examined by Dr. Om Prakash Raj (PW-10) on 06.02.2013 vide Ex.-P/10 & Ex.-P/11. Seized articles and vaginal slides were sent for FSL. Site plan was prepared by police vide Ex.-P/15. The appellants were arrested on 06.02.2013 vide arrest memo Ex.-P/21 and Ex.-P/22. In FSL report Ex.-P/26 semen and human sperm have been found over slides and undergarments of the victim.

After completion of the investigation, charge-sheet was filed against the appellants for offence punishable under Sections 342, 376(D), 323 read with Section 34 of the IPC before the Judicial Magistrate First Class, Bilaspur, District Bilaspur and it was committed to the Sessions Court for hearing and disposal in accordance with law.

The trial Court has framed charge under Section 366/34, 342/34, 323/34 376(D)/34 of the IPC against the appellants. The accused/appellants abjured the charges, pleaded non-guilty and entered into defence. The prosecution in order to bring home the offence examined as many as 12 witnesses and exhibited 26 documents in support of the case, whereas the defense exhibited statements of the witnesses which are D1 to D3. Statement of the accused/appellants under Section 313 of Cr.P.C. was recorded in which they abjured the guilt and pleaded innocence.

The trial Court after appreciation of oral and documentary evidence available on record, convicted the present appellants as mentioned in opening paragraph of this judgment. However, the trial Court has acquitted both the appellants of charge under Section 366/34 of the IPC. Hence, the appellants have preferred the instant appeal under Section 374(2) of Cr.P.C. against the impugned judgment of conviction and order of sentence recorded by the trial Court.

Learned counsel for the appellants would submit that the appellants have been falsely implicated in this case and in the medical examination of the victim (PW-1), Dr. (Smt.) Rama Ghosh (PW-12) has not found any injury either on external body or in private part of the victim. He would further submit that the independent witnesses have also not supported the case of the prosecution. He would pray for acquittal of the appellants.

Per contra, learned counsel for the State would submit that the evidence of the victim (PW-1) is sufficient to record conviction, particularly in the cases of forcible sexual intercourse. He would further submit that in FSL report, semen and human sperm have been found over the slides and undergarments of the victim. The victim has categorically made statement against the appellants regarding forcible sexual intercourse upon her. The witnesses have impliedly supported the case of the prosecution. The manner in which the appellants have committed the offence is heinous and no leniency is required. He would also submit that the present appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The conviction of the appellants is based upon the evidence of victim (PW-1), Ganeshi Bai @ Guddi (PW-2), Bhola Mochi (PW-4) and FSL report (Ex.-P/26).

Victim (PW-1) has stated that on the date of incident while she was watching TV, appellant No. 2 Bharat Chimote tried to enter into her house and thereafter he was driven away by her. After sometime, appellants Dara Malik (A-1) and Bharat Chimote (A-2) forcibly entered into her house and assaulted her. Thereafter, her mouth was gagged by them and they took her to the house of Sadhmati (PW-3) where they committed forcible sexual intercourse upon her. She has further stated that she tried to run away from the spot, but she was caught and assaulted by the appellants. Victim was taken to house of Ganeshi Bai (PW-2) where again both the appellants committed forcible sexual intercourse and she got free from clutches of the appellants at about 04:00 am. In cross-examination, the victim remained firm and there is nothing substantial to doubt her testimony.

Ganeshi Bai @ Guddi (PW-2) has supported the case of the prosecution up to some extent. She has stated that at about 10:00 pm on the date of incident, the victim was brought by both the appellants and she tried to rescue her. She has further stated that both the appellants stayed in her house along with the victim and committed forcible sexual intercourse upon her. She has further stated that at about 04:00 am the victim left her (PW-2) house. In cross-examination, Ganeshi Bai (PW-2) has stated that on that night she was not present in her house, but she has stated that when the victim was brought to her house, she was present and thereafter she left the house. She further stated the fact that the victim was sexually exploited by the appellants, but she has not seen the incident.

Sadhmati @ Sadh Bai (PW-3) has stated that on the next day of incident, she was informed by her son Bhola that the victim was brought by the appellants in her house where the victim was sexually exploited by them. She has admitted in her cross-examination that she deposed what she was narrated by her son and she has no personal knowledge of the incident.

Bhola Mochi (PW-4) has stated that on the date of incident, the appellants entered into his house along with the victim and he was threatened by the appellants, therefore, he went to sleep in his room. In cross-examination, Bhola Mochi (PW-4) remained firm.

Babita Shrivas (PW-8), Constable, is witness to seizure memo (Ex.-P/6) whereby slides were seized. P.S. Netam (PW-9), SHO Torwa, is witness of investigation.

Dr. Om Prakash Raj (PW-10) has examined the appellants and found them potent to perform sexual intercourse. This witness has found abrasion near left eye of appellant No. 2 Bharat Chimote.

Dr. (Smt.) Rama Ghosh (PW-12) examined the victim (PW-1). PW-12 has found tenderness over right shoulder, abrasion on the right knee, abrasion at back side of the left knee, pain over right temporal region and two abrasions on back side of the head of the victim. She has further stated that she did not find any injury on the private part of the victim and two slides were prepared by her.

The undergarments of the victim, two vaginal slides and undergarments of the appellants were sent for FSL and according to FSL report (Ex.-P/26) semen and human sperm were found over slide 'A' and undergarments of victim 'B1'.

In case of rape, no corroboration is required unless there are compelling reasons which necessitate the courts to insist for corroboration of the statement of the victim. Minor contradictions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix. Solitary testimony of the prosecutrix is sufficient to base the conviction, if it inspires the confidence of the Court. It is well settled by catena of decisions of the Hon'ble Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist for corroboration except from the medical evidence.

In case of State of Punjab vs. Gurmit Singh and Others, (1996) 2 SCC 384, the Hon'ble Supreme Court has held in para-8 as under :-

“8. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?”

(emphasis supplied)

In the present case, victim (PW-1) has categorically made statement against the appellants and same has been corroborated by the evidence of Ganeshi Bai @ Guddi (PW-2) and Bhola Mochi (PW-4). The FSL report (Ex.-P/26) also corroborates the ocular evidence. The evidence of the victim (PW-1) inspires confidence of this Court as held in para-8 of Gurmit Singh (supra).

Considering the above discussed facts and ratio laid down by the Hon'ble Supreme Court, we are of the considered opinion that no further interference is required with regard to the conviction and sentence of the appellants herein. In the result, the appeal sans merit and is accordingly dismissed.