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2000 DIGILAW 870 (RAJ)

Nanga v. The State of Rajasthan

2000-07-21

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - This is an appeal by the accused-appellant against the judgment and order dated 22.6.1998 passed by the learned Sessions Judge, Udaipur by which he convicted the accused-appellant for the offence under section 376 IPC and sentenced him to ten years Rigorous Imprisonment and a fine of Rs. 5,000/- and in default of payment of fine, he shall further undergo one year R.I. 2. It arises in the following circumstances:- "On 3.11.1996, PW 6 Kamla (prosecutrix) lodged an oral report (Ex.P/5) to PW 5 Sajjan Singh, SHO, Police Station Goverdhanvilas alleging that her husband Shankarlal is doing his job at Bombay and he is also residing there and she is living in her in-laws house at village Chanavada alongwith her three children. On the intervening night of 15/16.10.1996 at about 1.30 a.m. when she went out of her house to ease her child, at that time accused-appellant was standing there and it is alleged that accused caught hold her and put her down and committed rape on her and he threatened her that in case she made noise, she will be killed. After that, he jumped from the wall and ran away. The prosecutrix did not inform to anybody in night. It is further alleged in the report that on 16.1.1996 in the early morning she, told to PW 4 Mohan Lal and PW 3 Manishanker about the alleged incident and then PW Manishanker informed her husband Shanker at Bombay and on arrival of her husband Shanker from Bombay, the report Ex.P/5 has been lodged by her on 3.11.1996. On that report, the police registered a case against the accused-appellant and PW 6 Kamla was got medically examined on 4.11.1996 and her medical report is Ex.P/1 and after usual investigation, a challan was filed in the Court of Magistrate concerned and, thereafter, the case was committed to the Court of Session, Udaipur. The learned Sessions Judge framed charge under section 376 IPC against the accused-appellant on 20.1.1997 who pleaded not guilty and claimed trial. As many as 7 witnesses were examined on behalf of the prosecution and thereafter, statement of accused-appellant was recorded under section 313 Cr.P.C. No evidence in defence was led in the lower Court. 3. The learned Sessions Judge framed charge under section 376 IPC against the accused-appellant on 20.1.1997 who pleaded not guilty and claimed trial. As many as 7 witnesses were examined on behalf of the prosecution and thereafter, statement of accused-appellant was recorded under section 313 Cr.P.C. No evidence in defence was led in the lower Court. 3. The learned Sessions Judge vide his judgment and order dated 22.6.1998 held that the prosecution has proved its case beyond doubt for the offence under section 376 IPC against the accused-appellant and thus, he convicted the accused-appellant for the offence under section 376 IPC and sentenced him as stated above. 4. Aggrieved from the said judgment and order dated 22.6.1998, the accused-appellant has preferred this appeal in this Court. 5. The learned counsel for the accused-appellant has raised the following submissions in this appeal:- 1. That the alleged incident has taken place on the intervening night of 15/16.10.1996, whereas the First Information Report Ex.P/5 was lodged on 3.11.1996 and thus, there is a delay which is fatal and the prosecution case should be thrown out on this ground alone. 2. That statement of PW 6 Kamla (prosecutrix) does not get corroboration from the statement of PW 3 Manishanker and PW 4 Mohanlal, inasmuch as, as per the report Ex.P/5 which was lodged by PW 6 Kamla (prosecutrix), she has narrated that on the next day she informed PW 3 Manishankar and PW 4 Mohanlal about the alleged incident, but these two witnesses have denied this fact and from this point of view also, the delay should be considered as fatal to the prosecution case. 3. That in view of the facts and circumstances of the case, the statement of PW 6 Kamla (prosecutrix) should not be acted upon and the learned lower Court has wrongly acted upon it. Hence, the accused-appellant be acquitted of the charge under section 376 IPC. 6. On the other hand, the learned Public Prosecutor has urged that no doubt there is a delay in this case, but it should not be considered as fatal and the appeal of the accused-appellant should be dismissed. 7. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 8. Before the arguments and facts of the present case are examined, the following words of Dr. 7. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 8. Before the arguments and facts of the present case are examined, the following words of Dr. Hale, Chief Justice of Australia about rape should be reproduced here : "Rape is an accusation easily to be made and hard to be proved and harder to be defended by the party concerned, though never so innocent." 9. Whether corroboration is essential in rape cases before convicting an accused person. 10. This problem was considered by Hon'ble Supreme Court earlier in the year 1951 in Rameshar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 and taking into considerations both Sections 133 & 114(b) of Indian Evidence Act, answered the question in the following manner:- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before, there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and injury case must find place in the charge before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or by them. There is no rule or practice that there must, in every case, be corroboration before a conviction can be allowed to stand. Further, when corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence even though it is legally admissible for the purpose on hand, its weight may be nil. It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would be regarded as corroboration. Further, when corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence even though it is legally admissible for the purpose on hand, its weight may be nil. It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear : (1) It is not necessary that there should be independent confirmation of every material circumstance in the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it provable that the story of the accomplice (or complainant) is true and that is reasonably safe to act upon it. (2) The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. (3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. (4) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime." 11. If prosecutix is found habitual to intercourse, her statement in order to base conviction of accused person, must be corroborated in some material particular from independent source as held by Hon'ble Supreme Court in Ram Murti v. State of Haryana, AIR 1970 SC 1029 . 12. If prosecutix is found habitual to intercourse, her statement in order to base conviction of accused person, must be corroborated in some material particular from independent source as held by Hon'ble Supreme Court in Ram Murti v. State of Haryana, AIR 1970 SC 1029 . 12. In Gurucharan Singh v. State of Haryana, AIR 1972 SC 2661 , the Hon'ble Supreme Court has stated:- "As a rule of prudence, however, Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated." The Hon'ble Supreme Court has further stated in the above case that "The matter is not res-integra and this Court has, on more occasions than one, considered and enunciated legal position." 13. The Hon'ble Supreme Court in R.K. Agrawal v. State of Orissa, AIR 1976 SC 1774 held: "In a case where the victim is a child of six years, the medical examination of accused's genitals where presence of spermatozoa was considered as one of the circumstances sufficient corroborative piece of evidence. On this aspect, Rafiqu v. State of AIR 1981 SC 559 can also been seen. 14. On nature and extent of corroboration necessary for such offence the Hon'ble Supreme Court in Sheikh Zakir v. State of Bihar, AIR 1983 SC 911 has stated in the following manner : "Even though a victim of a rape cannot be treated as an accomplice, the evidence of the victim in a rape case is to be treated almost like the evidence of an accomplice requiring corroboration. Hence, there must be an indication in the course of the judgment that the Judge had this rule in his mind when he prepared the judgment and if in a given case the Judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is .always safe to insist on such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is .always safe to insist on such corroboration. Whether corroboration is necessary it should be from an independent source but is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both." 15. The Hon'ble Supreme Court in State of Maharashtra v. Chandra Prakash Kewal Chand Jain, AIR 1990 SC 658 , where the accused in rape case was a police officer, has stated:- "The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. On corroboration further stated:- "To insist on corroboration except in the rarest of rare case is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as the case of an accomplice to a crime." 16. The law laid down in the above noted case has been further approved by the Hon'ble Supreme Court in following cases:- 1. Kamel Singh v. State of M.P., AIR 1995 SC 2472 . 2. State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 . 17. The net result of above cases decided by Hon'ble Supreme Court by time to time can be summarised in the following manner:- 1. That corroboration of the testimony of prosecutrix in rape case is not required as a rule of law. 2. That corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law. 3. That the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment. 4. 3. That the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment. 4. That if the evidence of the prosecutrix does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon. 5. That the corroboration of the prosecutrix evidence may be dispensed with where the circumstances of a case make it safe to do so. But the reasons for dispensing with the necessity of such corroboration should be forthcoming in the judgment. 6. That corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation on account of ins tic t of self preservation or when the probabilities factor is found to be out of time. 7. That the view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the cases of a child of tender years is not correct. Whether corroboration is unnecessary is a question of fact in every case. 18. Keeping in mind the above basic principles of law, the facts of the present case are being examined. 19. In the present case, there is no dispute on the point that report Ex.P/5 was lodged by PW 6 Kamla (prosecutrix) on 3.11.1996, though the alleged incident took place on the intervening night of 15/16.10.1996. In that report, PW 6 Kamla has specifically mentioned : (i) That on the next day i.e. on 16.10.1996 she informed PW 3 Manishanker and PW 4 Mohanlal about the alleged incident. (ii) That PW 3 Manishanker thereafter informed her husband Shanker at Bombay. (iii) That on the arrival of her husband Shanker, the report Ex.P/5 was lodged. Note.There is no mention in the report Ex.P/5 that PW 6 Kamla had received any injury. 20. (ii) That PW 3 Manishanker thereafter informed her husband Shanker at Bombay. (iii) That on the arrival of her husband Shanker, the report Ex.P/5 was lodged. Note.There is no mention in the report Ex.P/5 that PW 6 Kamla had received any injury. 20. PW 3 Manishanker whose name has been mentioned in Ex.P/5 admitted in his cross-examination that he telephoned the husband of PW 6 Kamla (Prosecutrix) on 20.10.1996 at Bombay and her husband Shanker came on 22.10.1996 from Bombay and he has further admitted that PW 6 Kamla told him that because of darkness, she could not recognise the person, who had committed rape on her on that night. 21. Another witness is PW 4 Mohanlal, whose name is also found in the report Ex.P/5 and he has been declared hostile. 22. The next witness is PW 6 Kamla (prosecutrix). She has admitted in her cross-examination, the following facts:- 1. That her husband Shanker came from Bombay after 8-10 days. 2. That as soon as her husband came, the report Ex.P/5 was lodged. 3. That she got 5-6 injuries and they were told to the doctor. 4. That PW 3 Manishanker is her brother. 5. That in report Ex.P/5, she has not mentioned any injury. 6. That she has told about the incident to Girja and Sushila. Note.That these two witnesses have not been examined by the prosecution. 23. From the statement of PW 7 Dr. G.L. Daad, it appears that there is one abrasion on the body of the prosecutrix and her age on the date of incident was about 19 years. 24. Looking to the facts and circumstances of the case and the above evidence, the conviction of the accused-appellant under section 376 IPC cannot be sustained. As per the report Ex.P/5 dated 3.11.1996, it appears that on the next day i.e. 16.10.1996, PW 6 Kamla (prosecutrix) told to PW 3 Manishanker and PW 4 Mohanlal about the alleged incident and these two witnesses do not corroborate to the statement of PW 6 Kamla. According to the statement of PW 3 Manishanker, Shanker, the husband of the prosecutrix, came on 22.10.1996, whereas PW 6 Kamla stated that the day on which her husband Shanker came, the report Ex.P/5 was lodged. Thus, there is a material contradiction between the statement of PW 6 Kamla (prosecutrix) and PW 3 Manishanker about the arrival of Shanker. According to the statement of PW 3 Manishanker, Shanker, the husband of the prosecutrix, came on 22.10.1996, whereas PW 6 Kamla stated that the day on which her husband Shanker came, the report Ex.P/5 was lodged. Thus, there is a material contradiction between the statement of PW 6 Kamla (prosecutrix) and PW 3 Manishanker about the arrival of Shanker. In case Shanker, husband of the prosecutrix came from Bombay on 22.10.1996, but the report is lodged on 3.11.1996 and this delay should.be considered fatal. 25. PW 4 Mohanlal does not corroborate to the statement of PW 6 Kamla at all. PW 6 Kamla herself admits in her cross-examination that her husband came after 8-10 days from the date of incident and this part of her statement tallies with the statement of PW 3 Manishanker. It means that Shanker, husband of the prosecutrix, should have returned from Bombay near about 22.10.19%, while the report Ex.P/5 has been lodged on 3.11.1996 and thus, there is a delay in lodging the report in the present case and this delay from all point of view is fatal one and in this background, the statement of PW 6 Kamla (prosecutrix) should not be acted upon as it is not reliable and it does not inspire confidence and lacks in corroboration. 26. The Court is conscious of the law laid down by the Hon'ble Supreme Court about delay in sexual offence and for that reference may be made on the following two cases:- (1) Kamel Singh v. State of M.P. (supra) where it has been observed that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women, it casts doubt and shame upon her rather than gives comfort and sympathies with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false. The reluctance to go to the police is because of society's attitude towards such women, it casts doubt and shame upon her rather than gives comfort and sympathies with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false. (2) State of Punjab v. Gurmit Singh (supra), where it has been observed that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Delay in filing FIR would not be fatal to the prosecution case if delay is properly explained. (3) State of Rajasthan v. N.K., AIR 1996 SCW 1407 . 27. The above law laid down by the Hon'ble Supreme Court does not help the prosecution so far as the facts of the present case are concerned. In the present case, there is an inordinate delay of 18 days in filing the report and even after coming of husband of the prosecutrix i.e. on 22.10.1996, the report is not lodged, but it was lodged on 3.11.1996. This delay remains unexplained and as discussed earlier, the statement of prosecutrix PW 6 Kamla also suffers from some infirmities and does not get corroboration from other witnesses. 28. The so-called one abrasion on the body of the prosecutrix PW 6 Kamla, who was examined on 4.11.1996 though the incident took place on 15/16.10.1996, has no bearing with the alleged incident, inasmuch as, PW 6 Kamla (prosecutrix) has nowhere mentioned in her report Ex.P/5 that she received injuries and, furthermore, the duration of that abrasion is not certain as per the statement of Dr. G.L. Daad, PW 7. 29. From the discussion made above, the findings of the learned Sessions Judge that the accused-appellant has committed the offence under section 376 IPC are not sustainable and it is held that the prosecution has failed to prove its case beyond doubt for the offence under section 376 IPC against the accused-appellant. G.L. Daad, PW 7. 29. From the discussion made above, the findings of the learned Sessions Judge that the accused-appellant has committed the offence under section 376 IPC are not sustainable and it is held that the prosecution has failed to prove its case beyond doubt for the offence under section 376 IPC against the accused-appellant. Thus, the impugned judgment and order dated 22.6.1998 passed by the learned Sessions Judge are liable to be set aside.For the reasons stated above, this appeal filed by the accused-appellant-Nanga is allowed and the judgment and order dated 22.6.1998 passed by the learned Sessions Judge, Udaipur are set aside and the accused-appellant is acquitted of the charge under section 376 IPC. Since the accused-appellant-Nanga is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******