Sheikh @ Md. Safil vs The State of Bihar

Aditya Kumar Trivedi, J.—Sole appellant Sheikh @ Md. Safil who has been found guilty for an offence punishable u/s 376 IPC vide judgment dated 23.08.2010 and directed to undergo R.I. for 10 years as well as also slapped with fine appertaining to Rs. 25,000/- in default thereof to undergo S.I. for two years additionally vide order dated 26.08.2010 by First Additional Sessions Judge, Katihar in Sessions Trial No. 121 of 2008 has preferred instant appeal. PW-6, Manjari Khatoon filed written report on 22.08.2007 with an allegation that in between night of 11/12.08.2007 while she was asleep after locking the door, Sheikh @ Md. Safil who happens to be her father-in-law opened the door, intruded inside her room, pounced upon her and committed rape.

After satisfying him he came out from her room. She, after coming out from her room had gone to her great father-in-law Md. Yasin and disclosed the incidence whereupon he had instructed not to disclose the occurrence to anybody and in lieu thereof she will be given 2 Bighas of land. Her mother-in-law, Chhabi Khatoon, sister-in-law Salia Khatoon, forcibly confined her but any how her mother Sitara Khatoon came to her place whom she narrated the occurrence, over which she had directed her to accompany but was forbidden by her mother, father-in-law. It has further been disclosed that the reason of delay happens to be on account of Panchayati in the village and as the accused had not accepted the dictum of Panchayat.

Barsoi P.S. Case No. 117 of 2007 was registered on the basis of the aforesaid written report whereupon investigation commenced and after concluding the same, appellant was charge sheeted leading to his trial which ultimately met with conviction and sentence, the subject matter of instant appeal.

While assailing the judgment of conviction and sentence recorded by the learned trial court, it has been submitted on behalf of appellant that the same happens to be perverse as is not supported by the evidence on record. On this very score, it has been submitted that so-called victim Manjari Khatoon was examined by PW-7 Dr. Punam Raman and from her finding it is evident that she had completely ruled out it a case of rape.

It has further been submitted that from conduct of the informant PW-6, it is evident that her Naiharwala happens to be landless person while her Sasuralwala happens to be substantial landholder and on account thereof, she was made puppet at the hands of her Naiharwala and that happens to be reason behind incorporating the fact in the written report that her great father-in-law had disclosed that she will get 2 Bighas land. Because of the fact that she herself happens to be family member then in that event there was no question for allotting 2 Bighas of land in her favour. Not only this, the aforesaid theme get further strengthen from her cross-examination wherein she had stated that she was not aware with the fact whatever been incorporated in the written report. It was scribed by Surpanch Saheb whereupon she affixed her thumb impression.

It has further been submitted that there happens to be delay of 10 days and that has not been properly explained. On this score prosecution has got conflicting version. In written report PW-6 had stated that after getting news any how her mother came who directed her to accompany but was not allowed by her mother, father-in-law while during course of her evidence apart from the fact that she had not remained consistent, she also spoken that on the following day her mother had arrived.

It has further been submitted that there happens to be bitterness since before in the family as her husband who was residing away since before had not paid, was not paying a single farthing to her.

Apart from this, it has also been argued that none of the family members either been cited as a witness nor arrayed as an accused. In likewise manner the close neighbours have not been examined by the police. Therefore, the finding of guilt and sentence against the appellant happens to be non-sustainable in the eye of law and is fit to be set aside. In support of his contention, the learned counsel for the appellant relied upon 2006 (3) SCC (Cri.) 112, 2013 (3) BBCJ 52 (SC).

At the other hand while supporting the finding recorded by the learned trial court, the learned Additional Public Prosecutor submitted that delay in filing case relating to sexual offences under Indian social event is but natural and on account thereof, the delay could not be found a set back while considering the rape cases. In Indian continent the rape became blotch over the family prestige as well as also makes life of victim hell and that happens to be reason behind that firstly one state to launch prosecution. After muster courage to face the stigma one come forward. Therefore, delay in launching the criminal prosecution relating to rape cases should not be accepted a ground to discard and demolish the prosecution case.

Now coming to factual aspect, it has been submitted that virtually appellant who being father-in-law of victim had vituperated the human conscious by committing rape upon the victim at midnight after intruded inside her room opening the door as well as her other family members had also prevented the victim to leave the place just to get evidence of rape demolished as well as to demoralize victim. It has further been submitted that all the prosecution witnesses have had categorically supported the case of the prosecution. With regard to medical evidence, it has been submitted that finding of the doctor was but natural as the victim was examined after 11 days of the alleged occurrence. So submitted that appeal is fit to be dismissed.

Apart from exhibiting relevant document the prosecution had examined altogether eight PWs out of whom PW-1 is Md. Abbas, PW-2 is Md. Sarfuddin, PW-3 is Md. Tasadique Hussain, PW-4 is Md. Manjoor Alam, PW-5 is Sitara Khatoon, PW-6 is Manjari Khatoon, PW-7 is Dr. Punam Raman and PW-8 is Dilip Kumar. So far status of witnesses are concerned, PW-1, 2, 3 are outsiders and nature of evidence deposed by them suggest being hearsay. PW-4 and 5 are parents of PW-6 the victim while PW-7 happens to be the doctor who had examined PW-6 the victim and PW-8 is the Investigating Officer.

Evidence of victim of rape case is of paramount consideration without requiring corroboration unless and until there happens to be some sort of inconsistency as well as deficiency. In Hem Raj Vs. State of Haryana, it has been taken note of and explained in following way:

In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible, if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. (See State of Maharashtra Vs. Chandraprakash Kewalchand Jain, Such weight is given to the prosecutrix''s evidence because her evidence is on a par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix''s evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it.

As stated above the medical evidence is of no avail to the prosecution as it did not suggest presence of injury over the person of victim as well as over her private part including absence of dead or alive spermatozoa and that happens to be reason behind that the doctor PW-7 was not definite with regard to commission of rape over the person of PW-6, Manjari Khatoon.

From the allegation as is apparent reveals commission of rape on the person of PW-6 at her Sasural. Therefore the evidence of PW-6 is to be taken first. She had stated in her examination-in-chief that she happens to be the complainant. At the time of commission of crime her husband was away. It was midnight, she had fallen asleep. At that very time Md. Safil who happens to be her father-in-law came inside her room after opening door and committed rape, thereafter, he left. Then thereafter she had gone to her great father-in-law Md. Yasin and narrated occurrence who had said he will give 2 Bigha of land. As she did not concede then her mother-in-law, sister-in-law, kept her confined to so-many days. Then she had narrated that on the following day her mother Sitara Khatoon came to her place whom she had disclosed the incidence. Four days after departure of her mother she any how went to her Naihar. Thereafter, Panchayati was convened wherein her father-in-law did not participate and on account thereof, case was instituted. During cross-examination at para-5 she had stated that her husband was residing at Delhi for the last six months from the alleged date of occurrence. He was not transmitting a single farthing. She had informed her husband regarding the occurrence after 6-7 days but he had not taken any step. At para-7 she had stated that it was dark night. The room in which she was sleeping was pucca. Door was closed from inside. She remained over bed for half an hour after departure of her father-in-law. In para-8 she had stated that the bolt of Darwaja was not broken from inside. Her great father-in-law was sleeping out side. Her great mother-in-law was sleeping in her room. In para-9 she had stated that the case was drafted by Surpanch Saheb over which she affixed her thumb impression. As she is illiterate therefore she is unable to say with regard to its averment. In para-10 she had stated that Panchayati was convened by her father about 4-5 days after the occurrence. Then there happens to be suggestion with regard to false implication.

PW-8, Investigating Officer who after registering case inspected the place of occurrence. In para-1 of his examination-in-chief he had stated that the P.O. happens to be the Sasural of victim which happens to be brick built house having sheet roof wherein there happens to be two rooms. The southern room was occupied by victim wherein one Chowki was there whereupon rape was committed. He had not disclosed whether there was presence of any bed over the Chowki and whether the bed was seen to trace out the semen spot. In likewise manner this witness had not stated with regard to presence of doors and even during cross-examination at para-10 he had stated that he had not mentioned the fact that there was any scope for opening of the door from outside.

From the evidence of remaining PWs including parents of victim, it is evident that they happens to be hearsay witness and came to know about the occurrence from PW-6 itself.

Although the written report does contain the fact that victim had tried her best to save herself but during course of evidence PW-6 had left the same. In likewise manner according to examination-in-chief of PW-6 itself (Para-3), it is evident that her mother PW-5 had come to her place on the following day whom she had narrated the event but neither PW-6 nor PW-5 had stated that they had made protest for getting herself rescued there from rather she remained at her Sasural for three or four days. Thereafter had gone to her Naihar had there been, then at least it was expected at the end of PW-5 to raise alarm placing her grievances would have rescued the victim if not then at least PW-4, the husband of PW-5, father of PW-6 would have been informed who could have taken the proper legal recourse. Keeping silence for such long period is a circumstance which found unexplained because of the fact that none of the remaining PWs have claimed to have participated during course of Panchayati although much emphasis has been made thereupon.

Now come to the evidence of remaining witnesses PW-1 in examination-in-chief itself had disclosed that on the following day at about 04:00 P.M. Manjari had said about the occurrence. PW-2 had stated that he came to know from Manjari Khatoon regarding commission of rape after 4-5 days while PW-3 had stated in his examination-in-chief itself that Manjari Devi had disclosed regarding occurrence on the following morning. PW-3 happens to be resident of same village where the occurrence had taken place. Now coming to the status of witness, PW happens to be on inimical term as is evident from PW-1 of his cross-examination admitting the fact that Md. Yasin had instituted a case bearing Barsoi P.S. Case No. 79 of 2007 dated 24.06.2007 After scrutinizing the evidence as referred above, the conduct of victim became suspicious because of the fact that PW-6 had stated that she left her Sasural after 3-4 days while the witnesses came to know about occurrence on the following day itself from PW-6. In likewise manner, there happens to be conflicting version of PW-5 mother in consonance with PW-6 victim. Taking into account the objective finding of PW-8 relating to place of occurrence in consonance with the evidence on record did not inspire a case of rape and on account thereof, the conviction and sentence recorded by the learned lower court is set aside. Appeal is allowed. Appellant is under custody, hence is directed to be released forthwith if not wanted in any other case.