Haricharan Singh vs The State

Siddhartha Chattopadhyay, J.—Challenging the legal acceptability of the judgment dated 18.9.15 passed by the learned Sessions Judge, A & N Islands, Port Blair in connection with Sessions Case No. 81 of 2011, the convict/appellant has applied under Section 374(2) of the Cr.P.C. contending, inter alia, that the impugned judgment suffers from serious illegality and the learned Sessions Judge failed to appreciate that the prosecution failed to establish any of the ingredients of Section 376 IPC. Accordingly, he has prayed for his acquittal.

This Court is not oblivious to the guidelines of Hon''ble Apex Court that anonymity of the victim must be maintained and so henceforth we shall use the term "victim" instead of using her real name. The prosecution''s version sans unnecessary details is that on 02.7.2010 at or about 1.30 p.m. while the victim was sitting on the floor of front room of her house, the appellant, a resident of Lalpahar, suddenly entered her house, caught hold of her and forcibly took her to an adjoining room. She tried to raise an alarm but the appellant gagged her mouth by his hand and pinned her down on the cot. Due to such jostling her bangles were broken and she sustained injuries on her hand. The victim claimed that the appellant undressed her and committed rape upon her. When she again tried to raise an alarm, the appellant tried to strangle her and threatened that she would face dire consequences. She became unconscious. At or about 3 p.m. her husband came and sprinkled water over her face and at that time she regained her senses. She ventilated the ill episode to her husband who called her sisters to come to his house and thereafter the FIR was lodged by or about 4.30 p.m.

In course of the investigation, the I.O. arrested the accused, seized the articles under a seizure list and collected the medical reports of the victim as well as the accused. After recording the statement under Section 161 Cr.P.C. and after conclusion of the investigation, the charge-sheet was submitted against the appellant.

Pursuant to the charge-sheet filed by the I.O, learned Sessions Judge has framed the charges under Section 451 /376 /506 IPC. The appellant wanted to face the trial by not pleading guilty. The learned Court below had recorded the evidence, considered the documents, injury report, CFSL report and thereafter has held the appellant as guilty. After hearing the accused on the point of sentence, the learned Court below sentenced the appellant to suffer rigorous imprisonment for eight years along with a fine of Rs. 3,000/-; in default of payment of the fine, to suffer simple imprisonment for six months for the offence under Section 376 IPC. The learned Court below also passed a sentence against the appellant for the offence under Section 451 IPC for a period of two years and also to pay fine of Rs. 1000/-; in default, to suffer simple imprisonment for three months more.

Learned counsel appearing on behalf of the appellant has argued that it is an out-and-out false case made out against the appellant. He categorically stated that the victim herself did not say that there was any kind of penetration and, as such, the offence was not committed against her. He also argued that the husband of the victim was not examined by the I.O. His further limb of argument was such that CFSL report did not reveal any trace of semen.

Now, this Court is under an obligation to scrutinise the evidence of rape first. P.W. 1, the victim herself has narrated that on the relevant day her husband went to report for his duty at 6 a.m. There is no other member in her family. While she was alone, the accused entered into her room, gagged her mouth, took her to bedroom, forcibly lay her down, undressed her and committed rape. She became unconscious. She has proved the FIR which was marked Ext. 1 and her signature in the FIR and formal FIR were marked as Ext. 1/1 and Ext. 1/2. She categorically stated that the police had seized her blue coloured maxi, pink coloured lehenga i.e. petticoat. Red bangles and blue coloured petty shirt which are marked Mat. Exts. (i), (ii) and (iii). Police has also seized a chappal of the appellant from her residence under a seizure list and she put her signature on the seizure list which is marked 2/1. She was medically examined at G.B. Pant Hospital and she had made a statement before the learned Magistrate under Section 164 Cr.P.C. which are marked Exts. 3, 3/1 and 3/2. She identified one pair of white coloured chappal with blue stripe which was marked Mat. Ext. (iv). In course of the cross-examination, she was asked if she tried to resist the appellant or not. In reply, she unequivocally stated that as the appellant gagged her mouth she could not resist him although her one hand was free. Incidentally, in the same breath she volunteered that she had cried out loudly. It was also suggested to her that the appellant did not come to her residence nor gagged her mouth nor undressed her. She denied all the suggestions. She was also suggested that the appellant never committed rape upon her and she rejected the said suggestion outright. Other parts of her cross-examination are in the form of denial only.

Scanning the evidence of P.W. 1 we find that the appellant wanted to say, by putting questions, in course of the cross-examination, that there were other houses nearby where her alarm ought o have been heard. In reply, she had stated that several other houses were there between her residence and the main road. But this suggestion does not help the appellant on the principal ground that rape is a secret act. Nobody would commit it in the presence of others. Secondly, when her mouth was gagged and when the appellant threatened her with dire consequences by throttling her, it was not possible on her part to draw the attention of other persons by coming out from her house.

It appears from Ext. 11 (site plan of the place of occurrence) that the next house is at a distance of about 20 metre i.e. the residence of one J. Babu. This part of the evidence of sketch map remains unshaken. Therefore, it was not possible for the nearest neighbour at a distance of 20 metre from the place of occurrence, to hear the victim''s muted alarm. This apart, it is common experience that villagers are reluctant to come to Court to adduce evidence against another co-villager, lest they incur the wrath of their then neighbour.

The seizure list was prepared on the date of the incident at or about 7.40 p.m. which included a pair of blue-coloured jeans, a cream coloured half-sleeve shirt and a bottle containing cotton wet with the saliva of the appellant. In his examination-in-chief, the victim identified the wearing apparels of the victim. In her evidence she further stated that those were not seized in her presence. They were seized by the I.O. from the possession of the appellant from his house at Lalpahar. Therefore, the evidence of victim herself is quite satisfactory and there was definitive impress of truth in it. The Medical Officer examined the victim on that day at or about 8.45 p.m. and found that there was a small abrasion in her lower forearm and that abrasion had taken place within the past six hours. The offence was alleged to have been committed after 1.30 p.m. So by way of mathematical calculation we find that the abrasion took place within about six hours. Therefore, the factum of jostling as stated by the victim cannot be brushed under the carpet.

Now, we are to consider the argument advanced by learned counsel appearing on behalf of the defence on the point of the CFSL report. It appears from Ext. 13 that vaginal swab, pubic hair keepings, torn pink skirt, a pale blue silken ''nighty'' with white design, a pale brown bed-sheet, a pair of pink blue trousers, saliva containing a moist cotton swab were received by the CFSL authority on 07.9.2010 i.e. after a long two months from the date of offence. These were examined by the CFSL on 28.9.2010 i.e. nearly three months from the date of incident. Naturally, they could not detect semen, blood or saliva on it. There was every possibility of the traces of such material being disintegrated due to the inordinate delay in examining those items.

The injury report of the victim speaks of a small abrasion in her hand and in her evidence we find the story of broken bangles resulting in such injury. The Doctor opined it was a recent injury.

Learned counsel appearing on behalf of the appellant has cited the judgments reported at Narayan Vs. State of M.P., , Aman Kumar and Another Vs. State of Haryana, , Sakshi Vs. Union of India (UOI) and Others, and Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), .

We have carefully gone through those judgments and factual scenario of those cases do not tally with the present case. On the contrary, we are armed with the decisions reported at Joseph Poulo Vs. State of Kerala, and Ravindra Vs. State of Madhya Pradesh . In the former judgment, Hon''ble Apex Court held that the whole effort and endeavour of the case should be to find out whether the crime was committed by the accused and the circumstances proved which unerringly pointed to the guilt of the accused. In the judgment reported at Ravindra Vs. State of Madhya Pradesh Hon''ble Apex Court held (vide Para 14) "the chemical examiner''s report found that the sample of semen was not sufficient to link the same to the accused, notwithstanding that absence of spermatozoa in the vaginal smear could not be allowed to tell against the version of the prosecutrix, as held in Narayanamaa v. State of Karnataka". Factual aspect of that case and the case in hand is almost same and therefore the principles laid down by the Apex Court in this regard have to be followed.

A passionate argument was advanced by learned counsel Mr. Rao that at best this Appellate Court can consider the offence under Section 354 IPC. Considering the circumstances, we are not inclined to do it. This apart, we cannot ignore certain factors which normally deters a victim to come to Court such as the danger of being ostracized by the society; the fear of being shunned by others; and, publicity may affect the family prestige and honour.

After combating with such situation and overcoming such factors when a victim comes before the Court there is a built-in assurance that the allegations have got substance. The rape graph is ticking alarmingly towards infinity. The Court has to give credence to a victim, particularly when no motive is attributed to her. Therefore, the accused must get the blow of the law. He is a menace to the society and we have no hesitation to bring down the sword of justice against the appellant for the brutality committed by him.

Accordingly, we concur with the findings of the Court below and confirm the judgment and order of sentence passed against the appellant.

Urgent Photostat certified copy of this judgment and order be supplied to the parties after observing all required formalities.

Lower Court Records be sent down at once.

Sanjib Banerjee, J.

I agree.