Sudhram vs State of Chhattisgarh

Radhey Shyam Sharma, J.—This appeal is directed against judgment dated 24-2-2004 passed by 2nd Additional Sessions Judge (F.T.C.), Surajpur in Sessions Trial No. 196/2003. By the impugned judgment, accused/appellant Sudhram has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

Prosecutrix (PW-1) (In purview of Section 228A 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 the prosecutrix is not being mentioned) was residing in Village Kerta. On 12-2-2003, her husband Kishun had gone to a Baba in Dipadih. On 13-2-2003, the prosecutrix was alone at her house and on that date, in the evening hours, she was, after cooking dinner, preparing for taking dinner. At about 8-9 P.M., she pushed the door of the house in closing condition but did not close it from inside. At that time, the appellant opened the door and entered the house. The appellant caused the prosecutrix to fall down near the door, gagged her mouth with her saree, lifted her saree and petticoat up, committed sexual intercourse with her and fled. Due to getting late night, the prosecutrix did not tell the incident to anybody. On the next day, she narrated the incident to Badi Saas mother-in-law, Budhiyaro (PW-7), Basantlal (PW-8) and Shivnath. Her husband Kishun came back home in the evening. She narrated him the incident. On the next day, the prosecutrix brought saree, petticoat and bangles, which she had worn at the time of incident, to Police Station Pratappur and lodged First Information Report (Ex. D-1). The prosecutrix was sent to District Hospital, Ambikapur for medical examination vide Ex. P-13. Dr. Smt. Snehlata (PW-10) examined the prosecutrix and gave report (Ex. P-7). Slide of vaginal swab of the prosecutrix was prepared and handed over for chemical examination. The seized saree and petticoat of the prosecutrix were sent to District Hospital, Ambikapur for examination vide Ex. P-14. Dr. Smt. Snehlata (PW-10) examined those articles and gave report (Ex. P-8). The appellant was sent to Primary Health Centre, Pratappur for medical examination vide Ex. P-15. Dr. Bhim Singh Vide (PW-9) examined the appellant and gave report (Ex. P-6).

In further investigation, underwear of the appellant was seized vide Ex. P-2. Petticoat, saree, bangles of the prosecutrix were seized vide Ex. P-3. Spot-map of the place of incident was prepared by Patwari Ramadhar Yadav (PW-6) vide Ex. P-4. Statement of Budhiyaro (PW-7) was recorded by the police. Another spot-map was prepared by Station House Officer William Toppo (PW-11) vide Ex. P-10. The appellant was arrested vide Ex. P-16. The seized articles saree, petticoat and slide of vaginal swab were sent to Forensic Science Laboratory, Raipur for examination vide Ex. P-18.

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

Shri J.K. Shastri, learned counsel for the appellant argued that the FIR (Ex. D-1) 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 not cogent and reliable. The prosecutrix did not state about rape. Her evidence does not inspire confidence. The prosecutrix did not sustain any injury on her person. 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 AIR 2003 SC 2136 , Dinesh Jaiswal Vs. State of M.P., and Krishan Kumar Malik Vs. State of Haryana,

On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, opposed the above arguments and supported the impugned judgment passed by the learned Additional Sessions Judge.

I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 196/2003. Conviction of the appellant is based on the testimony of prosecutrix (PW-1).

Prosecutrix (PW-1) deposed that she lodged FIR (Ex. D-1) in Police Station Pratappur. Sub-Inspector William Toppo (PW-11) deposed that on 17-2-2003, on the basis of oral report made by prosecutrix (PW-1), he recorded FIR (Ex. D-1). From perusal of FIR (Ex. D-1), it appears that date of incident was 13-2-2003 at about 8-9 P.M. and FIR (Ex. D-1) was lodged on 17-2-2003 at about 1:15 P.M. It appears that the FIR (Ex. D-1) was lodged after 4 days of the incident, which was lodged belatedly.

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.

Prosecutrix (PW-1) deposed that on the date of incident, her husband Kishun had gone to Village Dipadih from where he returned home on Sunday. Thereafter, she lodged FIR (Ex. D-1) in Police Station Pratappur. Budhiyaro (PW-7) deposed that Kishun had gone to some Baba for 4-5 days. Basantlal (PW-8) deposed that husband of prosecutrix (PW-1) had gone to Dipadih. In the FIR (Ex. D-1), it is mentioned that the husband of prosecutrix (PW-1) was out of home and the FIR (Ex. D-1) was lodged after his return.

Looking to the evidence of prosecutrix (PW-1), Budhiyaro (PW-7) and Basantlal (PW-8), it appears that due to non-presence of husband of prosecutrix (PW-1), the FIR (Ex. D-1) could not be lodged immediately after the incident. When the husband of prosecutrix (PW-1) returned home, prosecutrix (PW-1) narrated him the incident and thereafter, the FIR (Ex. D-1) was lodged. In the instant case, looking to the circumstances, the delay in lodging the FIR is explained properly and the delay is not fatal to the case of the prosecution.

Prosecutrix (PW-1) deposed that on the date of incident, after cooking food, she was preparing for taking food. She was alone at her house and the door was opened. At that time, the appellant entered her house. The appellant caught her hands, caused her to fall down, lifted her saree up and outraged her modesty. She tried to shout, but the appellant gagged her mouth with a cloth. Thereafter, the appellant fled.

Prosecutrix (PW-1) further deposed that she narrated the incident to her Badi Saas (mother-in-law) Budhiyaro (PW-7), Basantlal (PW-8) and Shivnath. She further deposed that at that time her husband Kishun had gone to Village Dipadih from where he returned home on Sunday. Thereafter, she lodged FIR (Ex. D-1) in Police Station Pratappur.

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, prosecutrix (PW-1) specifically deposed that on the date of incident, at about 8-9 P.M., she was alone at her house. The appellant entered her house, caught her hands, caused her to fall down, lifted her saree up and outraged her modesty. She tried to shout, but the appellant gagged her mouth with a cloth. Thereafter, the appellant fled. She further deposed that she narrated the incident to Budhiyaro (PW-7) and Basantlal (PVV-8). Basantlal (PVV-8) deposed that in the morning of Friday, prosecutrix (PW-1) came to him and told that the appellant had outraged her modesty.

Shri J.K. Shastri, learned counsel for the appellant argued that prosecutrix (PW-1) did not state about sexual intercourse. She stated only about outraging of her modesty, which does not constitute offence of commission of rape u/s 376 IPC.

Prosecutrix (PW-1) deposed that it is true that the appellant had not opened his Lungi and underwear. It is wrong to say that the appellant had lifted her saree and petticoat up, therefore, she deposed that the appellant outraged her modesty.

Looking to the evidence of prosecutrix (PW-1), it appears that she has net clearly stated that the appellant had intercourse with her except stating that he outraged her modesty.

An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.

In order to find an accused guilty of an intent to commits rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.

In the instant case, the prosecutrix (PW-1) specifically deposed that the accused caused her to fall down, lifted her saree and petticoat up and she further

There is no material to show that the appellant had determined to have sexual intercourse in all events in the aforesaid background. The offence cannot-be said to committing of rape to attract culpability u/s 376 IPC. But, the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable u/s 354 IPC are that the person assaulted must be a woman, and the accused must be used criminal force on her intending thereby to outrage her modesty.

In the instant case, the act of the appellant was not committing of rape. His act was merely a preparation. Therefore, the appellant cannot be convicted u/s 376 IPC. His offence is liable to be punished u/s 354 IPC.

Section 450 of the Indian Penal Code runs thus :

House-trespass in order to commit offence punishable with imprisonment for life.--Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.

Since it is proved that the appellant had entered the house of the prosecutrix in the night and outraged her modesty and the act of the appellant is found punishable u/s 354 IPC, therefore, the appellant cannot be convicted u/s 450 IPC, instead, he is liable for punishment u/s 456 IPC.

In view of the above discussion, it would be appropriate to set aside the conviction of the appellant under Sections 450 and 376(1) IPC and convict him under Sections 456 and 354 IPC.

So far as sentence is concerned, now, the appellant is convicted under Sections 456 and 354 IPC. For offence u/s 456 IPC, the punishment prescribed is for either description for a term which may extend to three years and shall also be liable to fine. For offence u/s 354 IPC, the punishment prescribed is for either description for a term which may extend to two years or with fine or with both. The offence was committed on 13-2-2003, the appellant was convicted and sentenced on 24-2-2004, the appeal remained pending since 1-3-2004 and the case remained pending for about 9 years. The appellant has already undergone for 18 days. In the above facts and circumstances of the case, I do not feel it appropriate to send the appellant back to jail. I am of the view that ends of justice would be met if, while convicting the appellant under Sections 456, 354 IPC, the jail sentence awarded to him is restricted to the period already served by him besides imposing fine. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Sections 450 and 376(1) IPC are set aside. Instead thereof, the appellant is convicted under Sections 456, 354 IPC. However, the jail sentences awarded to the appellant are reduced to the period already undergone by him. For each of the offences under Sections 456 and 354 IPC, the appellant shall also pay fine of Rs. 5,000/-. The appellant is granted two months'' time to deposit the fine amount, failing which, he shall be liable to undergo rigorous imprisonment for 3 months and 3 months, respectively. The amount of fine already deposited shall be adjusted in the amount of fine imposed by this Court today. The compensation part of the impugned judgment is upheld. Presently, the appellant is on bail. His bail bonds are cancelled and sureties stand discharged.