Kejuram Yadav vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 14-1-2004 passed by Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth ''the Act 1989''), Raipur in Special Case No. 1/2003. By the impugned judgment, accused/appellant-Kejuram Yadav has been convicted u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Case of the prosecution, in brief, is as under:-

Prosecutrix (P.W. 4) (In purview of Section 228-A of the Indian Penal Code, name of the prosecutrix is not being mentioned) works as a labourer under the contractor of Public Works Department and is Satnami by caste, which belongs to Scheduled Caste. On 18-11-2002, prosecutrix (P.W. 4) had gone to Government quarter situated at Shanti Nagar, Sinchai Colony for sweeping where other persons/labourers were also working. Appellant-Kejuram Yadav was working there too. The appellant took prosecutrix (P.W. 4) for sweeping on the first floor. The appellant caught hold her hand and hairs and caused her to fall down. When prosecutrix (P.W. 4) tried to shout, the appellant pressed her neck, committed marpeet and sexual intercourse with her. During scuffle, bangles and chain of prosecutrix (P.W. 4) were broken and fall down there. The appellant gave danda blow on the head of prosecutrix (P.W. 4). Thereafter, prosecutrix (P.W. 4) went her home and narrated the (incident to her husband Dinesh Kumar Banjare (P.W. 5) and lodged First Information Report (Exh. P-6) in Police Station, Civil Lines, Raipur.

During investigation, petticoat of prosecutrix (P.W. 4) was seized vide Exh. P-7. Caste certificate (Exh. P-8) of prosecutrix (P.W. 4) was seized. Chain, pieces of broken bangles and a piece of plywood were seized vide Exh. P-10 from the place of occurrence. Prosecutrix (P.W. 4) was sent to Ambedkar Hospital, Raipur for medical examination vide Exh. P-13. Dr. Kalpana (P.W. 3) examined prosecutrix (P.W. 4) and gave her report (Exh. P-4). The appellant was also sent to Medical College. Raipur for medical examination. Dr. M.K. Pujari (P.W. 2) examined the appellant and gave his report vide Exh. P-2. Chaddi (underwear) of the appellant was seized vide Exh. P-11 and sent to Ambedkar Hospital. Raipur for examination vide Exh. P-12. Petticoat, Chaddi and slide were sent to Forensic Science Laboratory, Raipur for chemical examination. Report (Exh. P-15) was received therefrom.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Raipur, who, in turn, committed the case to the Court of Special Judge under the Act, 1989, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Shivendu Pandya, learned Counsel for the appellant argued that the appellant has been falsely implicated by the prosecutrix (P.W. 4). He further argued that evidence of prosecutrix (P.W. 4) is not trustworthy. The evidences of prosecution witnesses are not cogent and reliable. Her testimony is full of contradictions. Therefore, it is not safe to rely upon the evidence of prosecutrix (P.W. 4). The appellant deserves to be acquitted. He placed reliance on Pavinder Ahluwalia Vs. State of M.P. and another, 2010 (1) M.P.H.T. 13 (DB) and Joseph Poulo Vs. State of Kerala,

Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused record of Special Case No. 1/2003.

Prosecutrix (P.W. 4) deposed that she was working in a garden under a contractor. She was working in Pahuna Guest House. The appellant was an employee of P.W.D. On the date of incident, she was sweeping in the ground floor of the bungalow of A.G. Saheb at Shantinagar. Some work was going in that bungalow and the appellant was also working there. On being asked by the appellant, she went to sweep in the room of upper floor. Nobody was present in that room. As soon as she reached that room, the appellant caught her hair, caused her to fall down, removed her underwear, lifted her petticoat up and began to commit forcible sexual intercourse with her. When she tried to shout, the appellant picked up a danda, lying near there and gave blow with it on her head, due to which, blood began to ooze out therefrom. The appellant had pressed her neck, therefore also, she was unable to shout. She had sustained injury on her neck with the nails of the appellant. The appellant had given danda blow on her ear also. She further deposed that the appellant had caught her hands also, due to which, her bangles had broken, she had sustained injuries in her hands and blood had oozed out therefrom. She gave leg blow to the appellant to extricate her from him and she succeeded in extricating her. She came to the ground floor, but colleagues of the appellant were working there, therefore, nobody helped her.

Prosecutrix (P.W. 4) further deposed that she went her house and narrated the incident to her husband. She came back to the place of occurrence along with her husband, but, till then, the appellant had fled. She took her husband to the place of occurrence, where broken bangles, necklace and danda were lying. They went to Police Station, Civil Lines and lodged the FIR (Exh. P-6) there.

Now, I shall examine whether the evidence of prosecutrix (P.W. 4) is trustworthy and reliable and can be based for conviction?

In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi), , the Hon''ble Supreme Court observed as follows:-

Evidence of Prosecutrix:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime, but is a victim of another person''s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called ''Evidence Act''), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is, undoubtedly, a competent witness u/s 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the Court keeps this in mind and feels "satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114, which requires it to look for corroboration. If, for some reason, the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence, which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should, ordinarily, have no hesitation in accepting her evidence. The Court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather, it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly, where the witnesses had not seen the commission of the offence. [Vide: State of Maharashtra Vs. Chandraprakash Kewalchand Jain, ; State of Uttar Pradesh Vs. Pappu alias Yunus and Another, and Vijay @ Chinee Vs. State of Madhya Pradesh,

Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.

In the instant case, in cross-examination, prosecutrix (P.W. 4) deposed that the appellant had, before the incident, told her that her contractor had instructed to sweep in the room of the upper floor also. On this, she went to the room of the upper floor along with the appellant, but, she did not know whether the people working there heard this instruction of the appellant or not? It is true that when she was going to the room of the upper floor, the appellant was coming behind her, but, it is wrong to say that she and the appellant were talking to each other sitting on the upstairs to the room of the upper floor. She further deposed that it is wrong to say that after reaching in the room of the first floor, she said that appellant that the said work was not instructed by the contractor, therefore, she will charge for the said work separately.

Dinesh Kumar Banjare (P.W. 5) deposed that his wife prosecutrix (P.W. 4) came home on a rickshaw. He saw that swelling was present on her hands and her wrists were bangleless. Blood was oozing out of her head and ear. He further deposed that she narrated the incident to him. Thereafter, he went to the place of occurrence along with her. He saw that danda, broken necklace and broken pieces of bangles were lying there. Thereafter, they went to Police Station, Civil Lines, Raipur and prosecutrix (P.W. 4) lodged FIR (Exh. P-6).

Lalakumar (P.W. 6) and Bhukhanlal (P.W. 7) deposed that prosecutrix (P.W. 4) was working in the bungalow of Shrivastava Saheb. The appellant was also working there. They saw that the appellant was fleeing from there. They further deposed that prosecutrix (P.W. 4) had brought police at the place of occurrence after sometime and she told them that the appellant committed rape with her.

Prosecutrix (P.W. 4) deposed that she was sent for medical examination. Dr. Kalpana (P.W. 3) deposed that she had examined prosecutrix (P.W. 4) and gave her report (Exh. P-4) in which she found, (i) abrasion, 1 x 0.25 cm on right forearm near wrist, (ii) abrasion, 0.5 x 0.25 cm on right side of the neck, and (iii) abrasion, 1 x 1 cm on right ear. She further deposed that the injuries sustained by prosecutrix (P.W. 4) were caused within 12 hours of her examination. She further deposed that she prepared two slides of vaginal swab of prosecutrix (P.W. 4).

Sub-Inspector, Lawrence Xess (P.W. 9) deposed that seized articles were sent to FSL, Raipur. Exh. P-15 is FSL Report. In the FSL Report (Exh. P-15), it is reported that Articles A -- petticoat, B -- underwear of the appellant and slide of the prosecutrix were stained with human spermatozoa.

The appellant took plea that he has been falsely implicated by the prosecutrix (P.W. 4) due to payment of wages. The appellant, in Section 313, Cr. PC has completely denied that he had any sexual intercourse with the prosecutrix (P.W. 4).

In Balwant Singh and Others Vs. State of Punjab, the Hon''ble Supreme Court held thus:-

It is difficult for us to accept the contention of appellants that because of enmity of the father of the prosecutrix against the appellants, they have been falsely implicated in the case. It may be that litigations are going on between Dalip Singh and the appellants, but, it is absurd to suggest that because of the litigations or any enmity that he may have against the appellants, the father of the prosecutrix would falsely involve his daughter in a case of rape by the appellants. On the contrary, the High Court has rightly observed that the appellants, who are debtors, had a common interest to bring disrepute to Dalip Singh, their creditor, by committing rape on his daughter, Kumari Rajwant Kaur (P.W. 2). There is, therefore, no substance in the contention of the appellants that they have been falsely implicated in the case on account of the enmity of Dalip Singh against them.

In Prithi Chand Vs. State of Himachal Pradesh, , the Hon''ble Supreme Court held thus:-

It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and the girl''s father. The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained. It was suggested in the course of cross-examination that Ratna, the son of Phulan Devi (P.W. 8) was intimate with the prosecutrix and he had raped-the girl. In his statement u/s 313 of the Code of Criminal Procedure, he put forth the case that when he returned to his village in the evening, he saw some ladies at the girl''s house and heard the girl saying that she was subjected to rape by Ratna. It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the crime. Except for the suggestion made in the cross-examination of Phulan Devi (P.W. 8), Ratna''s mother and the statement u/s 313 of the Code of Criminal Procedure, there is no other material on record which can give credence to the suggestion.

In Vishnu @ Undrya Vs. State of Maharashtra, the Hon''ble Supreme Court observed thus:-

The accused in Section 313, Cr. PC statement has completely denied that he had any sexual intercourse with the prosecutrix. Question 19 (p. 154 of the original record) was put to him about the statement of the prosecutrix regarding forcible intercourse with her on the fateful day, to which he replied. "This is false". Question 64 (p. 167 of the original record) was put to him as to whether he wished to say anything more in his defence, to which he replied, "I am innocent and falsely involved in this case". How he was falsely implicated has not been explained.

[See also: Pramod Mahto and Others Vs. State of Bihar,

In the instant case, the appellant took the plea of total denial. In Section 313, Cr. PC, when Question Nos. 6 and 7 were put to the appellant, he simply answered that it is wrong. The appellant has not examined any witness in his defence. The question was put to him as to whether he wished to say anything in his defence, he replied. I am innocent and falsely implicated by prosecutrix (P.W. 4) due to some dispute arose regarding payment of wages. How he was falsely implicated has not been explained by the appellant. The prosecutrix (P.W. 4) is a married woman. It is difficult to accept the contention of the appellant that because of some dispute regarding payment of wages, prosecutrix (P.W. 4) would falsely involve herself in a case of rape by the appellant. Therefore, no substance in the contention of the appellant that he has been falsely implicated in the case on account of non-payment of wages.

The evidence of prosecutrix (P.W. 4) is duly corroborated by medical evidence and also FSL Report. From the medical report (Exh. P-4), injury was found on the body of prosecutrix (P.W. 4). In FSL Report (Exh. P-15), petticoat of the prosecutrix (P.W. 4) and vaginal slides were found stained with human spermatozoa.

Thus, in view of the aforesaid discussion, it is clear that while the prosecutrix (P.W. 4) was working in the place of occurrence, the appellant caught her, caused her to fall down and committed sexual intercourse with her against her will. The evidence of the prosecutrix (P.W. 4) is corroborated by medical evidence and other prosecution witnesses also. The testimony of the prosecutrix (P.W. 4) is trustworthy and reliable and inspires confidence and can be based for conviction.

Thus, the finding recorded by the learned Special Judge convicting the appellant u/s 376, IPC is based on due appreciation of the evidence on record. Therefore, the judgment impugned cannot be said to suffer from any illegality or infirmity. Accordingly, the appeal being without substance is liable to be dismissed and it is dismissed. The appellant is on bail. His bail bonds are cancelled and sureties stand discharged. He shall surrender before the Trial Court forthwith to serve out the remaining part of the sentence.