Mahendra Chaudhary vs The State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment and order dated 27.11.2002 passed by the 2nd Additional Sessions Judge, Bhojpur, Arrah, in Sessions Trial No. 74 of 2002 convicting and sentencing the appellant to undergo R.l. for 7 years u/s 376 of the Indian Penal Code. The case of prosecution, in short, is that on 23.10.2001 at about 5 A.M. informant Ramrati Devi (PW-5) was going to attend the call of nature and when she reached near the house of appellant, the appellant pressing her mouth with his hand lifted her and took her to a place in his house where cattle and their fodder were kept and committed rape on her in spite of cries raised by her. The fardbeyan of informant was recorded on the same day by Manju Singh, the then Officer Incharge of Udwant Nagar Police Station (not examined). In her fardbeyan (Ext. 1) the informant stated that appellant had ill eyes on the women of village and he used to make vulgar signs whenever any woman used to pass through his house and about her husband she stated that her husband 3-4 years after marriage left the village in connection with service and had not returned till date. She further stated that after occurrence she went to her ''Naihar'' to bring her brother but when she did not find him there she returned to her village which caused delay in giving information to the police. On the basis of fardbeyan of informant, a case u/s 376 IPC was registered against the appellant. Police after investigation submitted charge sheet against him.

The case of the appellant as it appears from the trend of cross-examination of prosecution witnesses is that no occurrence as alleged had taken place and he has been falsely implicated in this case because in relation he happens to be brother-in-law of informant and Indradeo Choudhary, uncle of appellant, had transferred land of his share in favour of appellant which caused annoyance to the informant, After trial appellant was held guilty and has been convicted and sentenced as indicated above.

Altogether 7 witnesses on behalf of the prosecution have been examined. Ramrati Devi (PW-5) is the informant. Dr. Madhubala Sinha (PW-6) is the doctor who had examined the informant. Ram Pravesh Paswan (PW-7) is the I.O., Akhilesh Chaudhary (PW-1), Prashurm Chaudhary (PW-2), Gupteshwar Yadav (PW-3) and Laljee Chaudhary (PW-4) have not supported the case of prosecution and have been declared hostile.

Dr. Madhubala Sinha (PW-6) has said that on 23.10.2001 she examined the informant. She did not find any external or internal injury. Spermatozoa was also not found and hymen ruptured was old one so it was difficult to say whether she was subjected to rape or not. She has further said that on examination of the X-ray report of informant her age was assessed as 19 years. She has proved the medical report (Ext. 2).

Ram Pravesh Paswan (PW-7), I.O. of the case has proved the fardbeyan (Ext. 3) and formal FIR (Ext. 4) and has said that he visited the place of occurrence which is a part of the house of the appellation in which fodder for cattle was found kept. In cross-examination he has said that he did not find any sign of scattering of fodder.

Devi (PW-5), the informant who is said to be victim lady in her evidence has said that on 23.10.2001 at 5 AM she was going to attend the call of nature and when she reached the ''Darwaja'' of the house of the appellant which is adjacent to her house, the appellant pressed her mouth with his hand and lifted her to his fodder house where he threw her on ground and committed rape on her in spite of her cries. She has further said that after committing rape appellant gave her threatening that in case she lodged any clomplaint she would be killed. About the character of appellant she has said that whenever he used to see any woman he used to show his private part. About her husband she has said that he had gone for earning to somewhere else and not returned since last 5 years. She has further said that after occurrence she went to her ''Naihar'' and from there she went to Police Station where her fardbeyan was recorded. She has proved her fardbeyan. She has denied the suggestion of defence that because Indradeo Chaudhary had transferred land of his share in favour of appellant, therefore, in order to put pressure on appellant she lodged this case which is false against him. The defence has not made it clear that how informant is related to Indradeo Chaudhary although in cross-examination questions about the names of father and brother of Indradeo Chaudhary were asked to which informant replied that Hari Chaudhary had four sons namely, Mandip, Indradeo, Chandradeo and Dharmdeo and appellant is the son of Chandradeo Chaudhary. To a question about the name of her father-in-law and his sons she said that Baijnath Chaudhary is her father-in-law who had three sons namely, Laljee Chaudhary, Nandjee Chaudhary and her husband Ramjee Chaudhary. But from these replies to the questions which were put to her in cross-examination her relation with Indradeo Chaudhary who is said to have transferred the land in favour of the appellant is not established. Notwithstanding this fact the evidence of informant that she was subjected to rape by appellant does not suffer with any material contradiction to disbelieve her.

Learned counsel appearing on behalf of the appellant relying upon a decision reported in Dilip and Another Vs. State of M.P., has submitted that the sole testimony of the prosecutrix in this case does not find support from the medical evidence, therefore, it cannot be acted upon and made basis for the conviction of the appellant particularly in view of the principle laid down by the Supreme Court that rule about the admissibility of corroboration should not be ignored by the courts, in sexual offences. In that case, the presence of blood stains on the clothes of the prosecutrix as stated by her was not confirmed by the report of the Forensic Science Laboratory or by the doctor who examined her and further her testimony was contradicted by the evidence of maternal aunt to whom she narrated the entire incident soon after its commission. In that case, it was held that "It is well settled that the porosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars". It was further held that "however, the rule about the admissibility of corroboration should be present to the mind of the Judge." It also referred the decision reported in State of Himichal Pradesh Vs. Gian Chand, by which it was held that "conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by the medical evidence and other circumstances such as report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on." Further reference is of the case reported in (1996)2 SCC 384 by which it was held as follows:

"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations..."

Further reference is of a case reported in Madan Gopal Kakkad Vs. Naval Dubey and Another, in which it was held that "lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy, of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming."

No doubt in the present case, sole testimony is of the prosecutrix and the medical evidence does not specifically state that prosecutrix was subjected to rape but then medical evidence at the same time does not exclude the possibility of rape and it simply states that it was difficult to say whether rape was committed or not. The offence is said to have taken place on 23.10.2001 at 5 AM and the prosecutrix was medically examined on the same day at 9.35 PM meaning thereby about more than 16 hours after the occurrence. If the medical examination is neither affirmative nor negative in that case evidence of prosecutrix has to be considered on its own merit. As stated above, the evidence of prosecutrix does not suffer from any infirmity and nothing has come on record for as to any motive on behalf of the informant for falsely implicating the appellant. I, therefore, find that charge against the appellant stands proved. In the result, this appeal stands dismissed. The judgment and order of the court below convicting and sentencing the appellant is hereby confirmed.