Uday Singh and Another vs State of Bihar

D.P.S. Choudhary, J.—Both the appellants have been convicted u/s 376(2)(g) of the Indian Penal Code and each of them have been sentenced to undergo 1.0 years by the 1st Additional Sessions Judge, Gaya in Sessions Trial No. 213/95/65/96 vide judgment dated 20th of August, 1997.

The brief fact of the case is that the informant Kamla Devi (P.W. 2) in her fardbeyan recorded on 25-5-1994 at 11.30 hours at Mushartoli alleging therein that about 10 days earlier on Sunday dated 15-5-1994 while she along with her children, Nanad Usha Devi (P.W. 3) and mother-in-law Parwati Devi (P.W. 12) were sleeping in front of her house on a cot at about 9.00 p.m. four persons reached there who had covered their faces. They ordered to prepare meal after shouting "Lalsalam". They further told them that members of the parties had assembled near the river bed and asked them to accompany her to the river bed. The informant and his family members refused to go along with them to the river bed. Thereafter, all the four accused forcibly took the informant and her sister-in-law Usha Devi after dragging them towards river bed. In this course, the informant and Usha Devi both identified accused-persons, namely Lallan Singh, Uday Singh (appellant No. 1), Buta Shaw and Krishna Singh (Appellant No. 2). On the eastern bank of the river they started misbehaving with the informant and his sister-in-law. Both of them were thrown on the ground and accused Buta Shaw and Uday Singh committed rape on the informant and other two accused, namely, Krishna Singh and Lallan Singh committed rape on Usha Devi. After committing rape, the accused-persons threatened the informant to kill her if she disclosed these occurrences to any person. On their alarm, the villagers came to the river bed, the accused-persons fled away. Both the them returned to their house. All male member of the informant''s house had gone to Aurangabad in connection with their livelihood, therefore, the matter was reported to the police after 10 days of the occurrence, i.e. 25-5-1994 when they returned back from Aurangabad. On the basis of the fardbeyan (Ext. 3), the formal F.I.R. (Ext. 4) was drawn up and after submission of the charge-sheet trial proceeded in the Court below.

The case of the defence is that they have been falsely implicated in this case. Accused Krishna Singh and Uday Singh had advanced money to the informant for working in their field but after receiving money the husband of the informant did not work in their field and on demand of the money they have been implicated in this case.

On behalf of the prosecution in all 15 witnesses have been examined out of which P.W. 1 (Dr. Nita Agrawal) is the lady Doctor who examined both the victim ladies on 26-5-1994 at Gaya Medical College Hospital. P.W. 2 (Kamala Devi) the informant and P.W. 3 (Usha Devi) are victims. P.W. 4 (Sohrai Manjhi), P.W. 5 (Vijay) P.W. 7 (Mahendra Mushahar), P.W. 13 (Najeer Mushahar) and P.W. 14. (Parmeshwar Bhuian) have been declared hostile and cross-examined by the prosecution. P.W. 6 (Jagdish Mistri), P.W. 8 (Upendra), P.W. 10 (Dhani Ram) and P.W. 11 (Suraj Bhuian) have been tendered for cross-examination. P.W. 12 (Parwati Devi) is the mother-in-law and P.W. 15 (Sakaldeo Yadav) is the police officer who submitted charge-sheet in the case. The main Investigating Officer has not been examined. On behalf of the defence D.W. 1 (Ramashish Paswan) has been examined.

The main point that has been raised on behalf of the appellants is that the allegation of P.Ws. 2 and 3 that accused-persons committed rape on them do not find support from the evidence of the Docto (P.W. 1). In her evidence, she stated that during the examination of both the victim she did not find any mark of violence, either on their person or private part. In her opinion, both the ladies were in habit of sexual intercourse. One of them (Usha Devi) had pregnancy of two months. She did not find any evidence of recent sexual intercourse on them. Their injury reports are Exts. land 1/1.

Admittedly, both the ladies were examined by the Doctor after 11 days of the occurrence, and they are married having children. Under such circumstances, it was natural on the part of the lady Doctor not to find any recent mark of sexual violence on their persons. From the evidence of P.Ws. 2 and 3, it appears that they were thrown on the ground before the rape was committed, therefore, some simple injuries such as abrasion must have disappeared after 11 days. The apex Court has held that in the absence of any injury on the persons of the prosecutrix, may not be itself discredit the evidence of P.Ws. 2 and 3 who are victim ladies, there is no specific defence suggestion of their false implication either in the evidence of P.Ws. 2 and 3 or in the statement of the appellants u/s 313 of the Code of Criminal Procedure. The Supreme Court in a decision reported in 1997 Cri. LJ 2003, has held that between the incident and the medical examination of the prosecutrix there was a time leg of two and half days and, therefore, whatever traces of rape which may have been, they would have disappeared on account of passage of time. In this case, both of them were medically examined after 11 days, besides they were married and hence used to sexual intercourse. Therefore, it was difficult to a medical witness to opine whether they were recently raped. The medical evidence has got little relevancy. However, it is mentioned in the report of the lady Doctor (Ext. 1) that when she was examined the slight bleeding on her private part was present. In the medical report of Kamla Devi (Ext. 1/1), it is mentioned that a liner scale of about 1 c.m. was found below the unitilcus. This finding of the lady Doctor corroborates that some physical force was used on them recently.

Another point that has been raised on behalf of the appellants is that there delay of about 10 days in the institution of the case which has not been explained. In the fardbeyan, there is an explanation of the informant that no male member was present at the time of occurrence in the house. When they arrived from Aurangabad, and after consultation with the villagers the case was instituted before the police as suggested by P.Ws. 2, 3 and 12. Therefore, there is explanation of the prosecution for 10 days'' delay in the institution of the case, as such, the delay has no consequence in this case.

It was submitted on behalf of the appellants that there is no corroboration of the evidence of the victim from any independent witness and in absence of corroboration their evidence should not be accepted. From the facts of the case and also from the evidence of the P.Ws. 2 and 3 it is clear that the offence took place in the night and the victim ladies were dragged from the house to the river bed. They stated that it was a lonely place and the village was about 20 Bans away. Therefore, there was no possibility of any eye-witness at the time of alleged occurrence, If is true that other witnesses who are named in the First Information Report the arrived on hulla have not supported the prosecution case and most of them have been declared hostile. But in every case particularly when an offence of rape has been committed, it is not essential that the evidence of prosecutrix must be corroborated. In this case, the evidence of Usha Devi (P.W. 2) has been corroborated by another victim lady Kamla Devi (P.W. 3) and there is no evidence that these ladies had any motive to implicate the accused-persons. In normal course, no lady likes to be embarrassed in such cases after making false allegation unless otherwise there is strong motive for the same. In a decision reported in 1952 S.C.R. 379, the Supreme Court has held that the Evidence Act nowhere it is mentioned that corroboration in each and every case is necessary. A woman who has been raped is not an accomplice. If she has been ravished, she is the victim of outrage. As such as a rule Her evidence corroboration is not essential in each and every case though produce requires that there should be corroboration if independent witnesses are available. It is the consistent case of the prosecution that at the time of alleged rape no other witness was available at the place of occurrence. Other witnesses have arrived only after the occurrence. However, in this case the evidence of P.Ws. 2 and 3 find corroboration from the evidence of Parwati Devi (P.W. 12), who narrated the circumstances in which both the victims were taken away by the accused-persons and the story of rape after their return. Learned appellants'' lawyer has pointed out some contradictions in their evidence and submitted that P.W. 2 stated that after the occurrence she became unconscious but in the First Information Report she has not made any such reference of becoming unconscious after the occurrence. She also stated that at the time of occurrence she was badly assaulted and some assaulted with iron rod and she had injury on her back. This fact has not been mentioned in the First Information Report besides not supported from the medical evidence. The appellants'' lawyer further pointed out that in the evidence of P.W. 3 Usha Devi, another victim lady, stated that she has not named appellant No. 2 in her evidence that the committed rape on her. On the other hand, she stated that appellant Uday Singh and accused Lallan Singh committed rape on her. However, there is omission in her evidence in the name of appellant No. 2 Krishna Singh but in the First Information Report Krishna Singh and Lallan Singh have been mentioned who committed rape on P.W. 3 (Usha Devi). The appellants'' lawyer further submitted that she also stated that she was injuries on her person as she was dragged on ground but not supported from the evidence of the Doctor nor this fact has been mentioned in the first information report. As a rule of prudence some detail should be mentioned in the First Information Report but in this case a Harijan illiterate lady is the informant on whose statement the fardbeyan was recorded. It is not expected from such lady to give every detail of the occurrence in the First Information Report nor the F.I.R. requires that every detail should be mentioned in it. Therefore, such minor contradictions are not vital to discredit the evidence of P.Ws. 2 and 3, when they are victim ladies themselves. It was further submitted on behalf of the appellant that P.W. 12 (Parwati Devi) stated that both the ladies (P.Ws. 2 and 3) after the occurrence returned back to their house but she does not say that Usha Devi was brought on a cot, as stated in her evidence. In my view, this is a minor contradiction in her evidence which does not discredit the core of the case. There is nothing in the evidence of P.W. 12 that why she will give false evidence against the appellants and try to blemish her family members including her daughter-in-law.

The apex Court in its decision reported in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, , held that over much importance cannot be given to minor discrepancies in the evidence of , rape case. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when all important probabilities-factor echoes in favour of the version narrated by the witness. The Supreme Court further held that corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the victim girl who complains of rape should be viewed with doubt, disbelief of suspicion. A girl or woman in our society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. They are always conscious of the danger or being looked down in the society or in the family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. It has been further held by the apex Court that on principles, the evidence of a victim of sexual assault stand on par with evidence of an injured witness. If the evidence of the victim does not suffer from any basic infirmity and the probabilities factors does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from a medical evidence.

In the instant case the evidence of P.Ws. 2 and 3 who are victims corroborate on all vital points regarding the sexual assault on them on all material points it stands corroborated by the evidence of P.W. 12 (Parwati Devi). The evidence of Doctor who has not find sign of rape on them has been discussed above and this possibility was due to the examination of the victims after 11 days of the occurrence and there was also a factor that both of them were married ladies. However, the lady Doctor as mentioned in her evidence and medical report (Exts. 1 and 1/1) has found slight bleeding on private part and a liner scale of about 1 c.m. was found below unictilcus suggesting use of physical force at their private part.

In the facts and circumstances, and relying on the decisions of the apex Court referred to above, there is no reason to interfere with the finding arrived at by the trial Court convicting both the appellants u/s 376 of the Indian Penal Code and sentencing them to a minimum period of sentence of 10 years as provided u/s 376(2)(g) of the Indian Penal Code.

In the result, I do not find any merit in this appeal, which is accordingly dismissed and the judgment and order of the trial Court is hereby confirmed.