Shivnarayan vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 2-7-1997 passed by 2nd Additional Sessions Judge, Ambikapur in Sessions Trial No. 350/1996. By the impugned judgment, accused/appellant Shivnarayan has been convicted u/s 376(2)(f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. Case of the prosecution, in brief, is as under:

On 27-7-1995, at about 12:30 P.M., prosecutrix (PW-6) (In purview of section 228-A of the Indian Penal Code and decisions in State of Punjab Vs. Ramdev Singh, Bhupinder Sharma Vs. State of Himachal Pradesh, and State of Karnataka Vs. Puttaraja, , name of prosecutrix is not being mentioned) had taken her buffaloes near Semardand for grazing. Her cousins (sisters-in-law) Panpatiya (PW-7) and Kalkatiya were working in a field of groundnut. The appellant came from her behind, caught her, caused her to fall down, lifted her petticoat up and penetrated his penis in her vagina. The prosecutrix (PW-6) screamed. Having heard her screaming, her both sisters-in-law Panpatiya (PW-7) and Kalkatiya, running, came there. They witnessed the appellant committing rape on the prosecutrix (PW-6). Having seen them, the appellant fled. The prosecutrix (PW-6) narrated the incident to her mother. The prosecutrix lodged First Information Report in Police Outpost Lundra vide Ex. P-8. On the basis of Ex. P-8, regular First Information Report (Ex. P-8A) was registered in Police Station Dhaurpur. The prosecutrix (PW-6) was sent for medical examination to District Hospital, Ambikapur vide Ex. P-5A. Dr. Smt. S.P. Jaiswal (PW-3) examined her and gave her report vide Ex. P-5. In Ex. P-5, she found that hymen was ruptured at two places and intercourse must have been performed within 2-3 days. The appellant was also sent for medical examination vide Ex. P-7.

In further investigation, petticoat was seized from the prosecutrix (PW-6) vide Ex. P-1. Half-Pant of the appellant was seized from the appellant vide Ex. P-2. Sealed packet articles were seized from Constable 867 Shivnath Ram vide Ex. P-3. Head Constable Ishwar Prasad prepared spot-map (Ex. P-9) and the appellant was arrested vide arrest memo (Ex. P-12).

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Session at Ambikapur, from where, it was received on transfer by 2nd Additional Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Rakesh Thakur, learned counsel for the appellant argued that FIR (Ex. P-8) was lodged at belated stage. In absence of proper explanation therefor, the prosecution story becomes doubtful. He further argued that the evidence of the prosecutrix is full of contradictions and is not supported by independent witnesses. The age of the prosecutrix is not proved by the prosecution that she was below 16 years on the date of incident. She was tutored by her uncle Gyani Sao (PW-2). The prosecutrix did not sustain any external injury on her person. There was enmity between the family members of the prosecutrix and the appellant. The prosecution did not examine any independent witness. Therefore, it is not safe to rely upon sole testimony of the prosecutrix. The appellant deserves to be acquitted of the charges framed against him. Learned counsel placed reliance on Manohar Lal and Others Vs. State of H.P. and Another and Tiharu and Another Vs. State of Chhattisgarh,

On the contrary, Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, argued that the prosecution has proved that on the date of incident, the age of the prosecutrix was less than 16 years. He further argued that the testimony of the prosecutrix (PW-6) is duly corroborated by medical evidence. Dr. Smt. S.P. Jaiswal (PW-3) specifically deposed that the intercourse must have been performed on the prosecutrix (PW-6) within 2-3 days. He further argued that the prosecution has properly explained the delay in lodging the FIR (Ex. P-8).

Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 350/1996 with utmost circumspection. The conviction of the appellant is based on the testimony of the prosecutrix (PW-6) and the medical evidence.

The prosecutrix (PW-6) deposed that she lodged the FIR (Ex. P-8). Sajjanram (PW-5) deposed that on 28-7-1995, FIR No. 0/95 was registered in Police Outpost Lundra vide Ex. P-8. On the basis of Ex. P-8, he registered FIR No. 83/95 on 29-7-1995 u/s 376 IPC in Police Station Dhaurpur vide Ex. P-8A.

The date and time of the incident was 27-7-1995 at about 12:30 P.M. The FIR (Ex. P-8) was lodged in Police Outpost Lundra on 28-7-1995 at about 6:30 P.M. In the FIR (Ex. P-8), cause of delay is mentioned as non-availability of any male family member at the house.

Gyani Sao (PW-2) deposed that father of the prosecutrix Lakdun Sao was died. The prosecutrix (PW-6) deposed that her father was died. It appears that at the time of incident, the prosecutrix was residing with her mother.

In Tulshidas Kanolkar Vs. The State of Goa, the Hon''ble Supreme Court observed thus:

We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.

In Sohan Singh and Another Vs. State of Bihar, the Hon''ble Supreme Court observed thus:

When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more.

Looking to the evidence of the prosecutrix (PW-6) and Gyani Sao (PW-2), it appears that father of the prosecutrix was not alive. Only her mother was residing with her. The defence did not put any question to the prosecutrix or Investigating Officer regarding delay in lodging the FIR (Ex. P-8). In the FIR (Ex. P-8), it is specifically mentioned that delay in lodging the FIR occurred due to non-availability of any male family member at the house. In the instant case, looking to the circumstances, delay in lodging the FIR is explained properly and the delay is not fatal to the case of the prosecution.

Learned counsel appearing for the appellant argued that testimony of the prosecutrix (PW-6) was not supported by independent witnesses. The, prosecutrix is a married girl and her husband used to visit her at her mother''s house. In the circumstance, there is possibility of occurring of injuries on private part of the prosecutrix on her having cohabitation with her husband.

The above argument of learned counsel for the appellant is not acceptable. No single question was asked from the prosecutrix or from any other prosecution witnesses about marriage of the prosecutrix. In deposition, the age of the prosecutrix is mentioned as 12 years and her father''s name is mentioned therein. The FIR (Ex. P-8), the memo (Ex. P-5A) for medical examination of the prosecutrix and the medical report (Ex. P-5) of the prosecutrix bear name of father of the prosecutrix. If the prosecutrix would have been married, she would have told her husband''s name at the time of lodging the FIR (Ex. P-8), sending the memo (Ex. P-5A) for medical examination and during the medical examination (Ex. P-5) and accordingly name of her husband would have been recorded in the abovementioned documents.

Gyani Sao (PW-2) deposed that the prosecutrix (PW-6) is his niece. He had given consent letter (Ex. P-4) for medical examination of the prosecutrix. Panpatiya (PW-7) is sister-in-law of the prosecutrix (PW-6). Both these witnesses are competent to tell that the prosecutrix (PW-6) is married or not, but, no single question was put to them about marital status of the prosecutrix (PW-6). Therefore, the plea of the defence that the husband of the prosecutrix (PW-6) used to visit her at her mother''s house and was having cohabitation with her is not sustainable.

In Vijay @ Chinee Vs. State of Madhya Pradesh, , the Hon''ble SC observed thus:

In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, , this Court held 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 and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)

A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The 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 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. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence, of a person who is interested in the outcome of the charge levelled by her. 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. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. 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.

In State of Uttar Pradesh Vs. Pappu alias Yunus and Another, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)

It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

In State of Punjab Vs. Gurmit Singh and Others, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)

... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... 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. ...Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. ...Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances....

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...The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 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 cases involving sexual molestations.

In State of Orissa Vs. Thakara Besra and Another, , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) 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.

In State of Himachal Pradesh Vs. Raghubir Singh, this Court held that there is no legal compulsion to look or any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan Vs. State of Madhya Pradesh, placing reliance on an earlier judgment in Rameshwar Vs. The State of Rajasthan,

The prosecutrix (PW-6) deposed that on the date of incident, at about 12 Noon, she had taken her buffaloes for grazing and those buffaloes were grazing under a Semar-Tree. The appellant came there from her behind, caused her to fall down, lifted her petticoat up and penetrated his penis in her vagina. On this, she screamed. Having heard her screaming, her both sisters-in-law Panpatiya (PW-7) and Kalkatiya, who were working in a field of groundnut, came there. They witnessed the appellant committing rape on the prosecutrix (PW-6). Having seen them, the appellant fled from there. After the sexual assault by the appellant, she was unable to walk properly. She further deposed that she lodged the FIR (Ex. P-8).

In cross-examination, the prosecutrix (PW-6) deposed that it is true that appellant Shivnarayan had come to her and caused her to fall down. She began to scream. Having heard her screaming, her sisters-in-law came there. Having seen them, the appellant fled from there. She further deposed that it is incorrect to say that she was making false statement.

Panpaliya (PW-7) deposed that she witnessed the appellant committing sexual intercourse with the prosecutrix (PW-6). Krishnanath Sao (PW-1) deposed that the appellant outraged modesty of the prosecutrix (PW-6).

Dr. Smt. S.P. Jaiswal (PW-3) deposed that she had examined the prosecutrix (PW-6) on 29-7-1995. She found that secondary sex characters of the prosecutrix (PW-6) were not developed. She further deposed that her hymen was torn at two places and blood was oozing out on touching. She opined that sexual intercourse must have been performed with the prosecutrix (PW-6) within 2-3 days. According to the medical evidence, the hymen of the prosecutrix (PW-6) was ruptured and blood was oozing out. The same is sufficient to prove the act of rape.

Learned counsel for the appellant argued that the appellant was falsely implicated in the case due to an enmity between the family members of the prosecutrix and the appellant. In normal course, a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves, her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the appellant does not appeal to reasoning. Because of any litigation or any enmity that the mother of the prosecutrix (PW-6) may have against the appellant, she would falsely involve her daughter in a case of rape by the appellant is not acceptable. It is not possible to believe that the prosecutrix (PW-6) and her mother would allow the real culprit to escape and falsely involve an innocent person in a case of rape. Therefore, the defence taken on behalf of the appellant in regard to above is not sustainable.

So far as determination of age is concerned, the learned trial Judge discussed the age of the prosecutrix (PW-6) in paragraphs 5 to 7 of the impugned judgment and held that on the date of incident, the prosecutrix (PW-6) was 11 years old. The date of incident is 27-7-1995. The evidence of the prosecutrix (PW-6) was recorded on 3-3-1997. On the date of deposition, the prosecutrix (PW-6) stated her age to be 12 years. Her statement was recorded after near about 1 year and 8 months of the incident. Dr. Smt. S.P. Jaiswal (PW-3) specifically deposed that secondary sexual characters of the prosecutrix (PW-6) were not developed and in her report (Ex. P-5), she recorded the age of the prosecutrix (PW-6) as 11 years. No single question was put by the defence to the doctor about age of the prosecutrix (PW-6). In the FIR (Ex. P-8) also, the age of the prosecutrix (PW-6) is mentioned as 11 years.

Looking to the above evidence available on record, I am of the considered view that the learned trial Court rightly held that on the date of incident, the prosecutrix (PW-6) was 11 years old.

On examining the instant case in its entirety, I find that the evidence of the prosecutrix (PW-6) is cogent, convincing, reliable and trustworthy and also duly corroborated by the medical evidence. The learned trial Court has rightly accepted the statement of the prosecutrix (PW-6) and convicted the appellant. The finding of conviction of the appellant u/s 376(2)(f) of the Indian Penal Code does not call for any interference by this Court.

In the instant case, the appellant committed rape on the prosecutrix when she was under 12 years of age. The appellant is convicted for the offence u/s 376(2)(f) of the Indian Penal Code, which is punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. The learned trial Court punished the appellant with minimum prescribed sentence of imprisonment, i.e., rigorous imprisonment for 10 years. No adequate and special reason exists in the case for awarding sentence of imprisonment for less than 10 years. Therefore, the sentence awarded by the teamed trial Court to the appellant is just and proper and does not call for interference. In the result, I find no substance in the appeal, it deserves to be and is accordingly dismissed. The appellant shall surrender before the trial Court forthwith to serve remainder of sentence, if any.