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2007 DIGILAW 411 (CHH)

Narayan Vishvnath Rajput v. State of Chhattisgarh

2007-07-20

SUNIL KUMAR SINHA

body2007
JUDGMENT Sunil Kumar Sinha, J. 1. This judgment shall govern the disposal of both the criminal appeals as they arise out of a common judgment dated 8th August, 2001 passed by the Special Judge (SC & ST (Prevention of Atrocities) Act), Raipur in Special Sessions Case No. 82/2000, whereby, the appellants were convicted under Section 376(2)(g) IPC, and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo R.I. for 6 months. 2. The appellants were charged under Section 376(2)(g), IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act. 3. The brief facts are that at the relevant time, the prosecutrix, Smt. Sunita Bai (P.W. 8) was working as a labour in a Plywood Factory. She had joined the said work just 2 days prior to the date of incident. Some construction work was going on in the factory, in which the appellant Narayan was working as a Mason. The allegations are that on 22-8-2000 at about 1.00 p.m. Narayan called the prosecutrix for sweeping in a particular room. Firstly, she denied saying that he may call other labour but when she was insisted, she went inside the room for the said work. As soon as she entered into the room, both the appellants came there, Narayan gagged her mouth and threw her on the ground, whereafter Vijay removed her clothes and committed forcible intercourse against her. She could not make hue and cry because her mouth was closed by Narayan. When they left the premises, she narrated the story to one Mr. Tiwari and thereafter went to her house and disclosed the story to Smt. Kiran Saxena (P.W. 7) and when her husband Sunil Kumar (P.W. 9) came to the house in the evening, she also narrated the story to him and the FIR (Ex. P/17) was lodged in the police station at about 10.00 p.m. on the same day. 4. During the course of investigation, the prosecutrix was sent for medical examination and was examined by lady Dr. S. Singh on 23-8-2000 at about 3.40 p.m. who prepared her report Ex. P/17) was lodged in the police station at about 10.00 p.m. on the same day. 4. During the course of investigation, the prosecutrix was sent for medical examination and was examined by lady Dr. S. Singh on 23-8-2000 at about 3.40 p.m. who prepared her report Ex. P/1 -A. According to the report; her pubic hairs were not matted and there were no mark of external injuries, hymen was old torn, vagina was easily admitting two fingers and uterus was of normal size. She recorded the opinion that there were no signs of recent intercourse. Appellant Vijay was also sent for medical examination and was examined by Dr. Santosh Bhandari (P.W. 3), who prepared his report Ex. P/5, according to which, he was capable to perform sexual intercourse. 5. On trial, the Special Judge convicted the appellants under Section 376(2)(g), IPC. However, they were acquitted of the charges framed under Section 3(2)(v) of the Special Act for the reasons that it was not established that the aforesaid offence was committed on the ground that the victim was a member of Scheduled Castes or Scheduled Tribes and the appellants were having such knowledge about it. 6. The conviction of the appellants is based upon the testimony of the prosecutrix supported by the evidence of Kanhaiya (P.W. 4), Smt. Kiran Saxena (P.W. 7), Sunil Kumar (P.W. 9) and the contents of FIR (Ex. P/7). 7. Learned Counsel for the appellants argued that the evidence of the prosecutrix appears to be unreliable as there are many discrepancies in it. She did not raise alarm either at the time of commission of rape or at any later point of time, the rape in a room in factory premises was not possible and if anything has happened, a possibility of her being a consenting party cannot be fully ruled out in this case. They referred to the decisions of the M.P. High Court rendered in the matters of Ghanshyam v. State of M.P. (1988)2 MPWN 129 : Raju v. State of M. P. 1987-1 (12) (sic) and Nanhaji alias Nanhe Vir alias Kunjilal Lodhi v. State of M. P. 2000 (1) MPLJ Note 19. They referred to the decisions of the M.P. High Court rendered in the matters of Ghanshyam v. State of M.P. (1988)2 MPWN 129 : Raju v. State of M. P. 1987-1 (12) (sic) and Nanhaji alias Nanhe Vir alias Kunjilal Lodhi v. State of M. P. 2000 (1) MPLJ Note 19. They also referred to the two decisions of the Apex Court rendered in the matters of Uday v. State of Karnataka 2003 AIR SCW 1035 : 2003 Cri LJ 1539 and Deelip Singh alias Dilip Kumar v. State of Bihar 2004 AIR SCW 6479. 8. In the three decisions of the M.P. High Court (supra), the acquittals were recorded by examining the possibility of commission of rape in the prevailing facts and circumstances of those cases. How the conduct of the prosecutrix makes her liable for holding her to be a consenting party, whether there were probabilities of commission of rape in a given facts and circumstances, whether the sole testimony of the prosecutrix showing her unnatural conduct and it being not support by medical evidence can be relied on or not are the questioned which have been decided in these cases. Therefore, the said judgments cannot be applied for their necessary implications in the strait-jacket manner as the facts and circumstances of each case vary and they are to be examined independently and then only, a view is to be formed. 9. In the instant case, the prosecutrix has deposed that as soon as she entered into the room, she was caught by appellant-Narayan, who gagged her month and thereafter she was thrown on the ground and then the second appellant-Vijay removed her clothes and committed forcible sexual intercourse against her. She has very specifically mentioned in para 2 of her examination that even at the time of commission of sexual intercourse also, Narayan had gagged her mouth, therefore, she could not raise alarm. So far as post incidental conduct about not raising alarm even after departure of the appellants are concerned, it appears to be a natural conduct. After the sexual assault of a lady money factors come before her and according to the mental status, she takes a decision at this point of time as to whether in such situation an alarm is to be made or not? whether the matter has to be reported or not? After the sexual assault of a lady money factors come before her and according to the mental status, she takes a decision at this point of time as to whether in such situation an alarm is to be made or not? whether the matter has to be reported or not? what reaction shall be there on the husband in case of a married lady? on the guardians and other family members, in case of an unmarried girl and so on and so forth. This conduct of silence by itself does not give germination either to the seed of false implication or a consent of the victim. There may be a case in which the victim may suffer depression after such an incident like gang rape and even she cannot be in a position to say something then expecting alarm would be an extreme. Therefore, the arguments raised by the learned Counsel for the appellants that she be disbelieved only on this conduct cannot be accepted. 10. The other arguments regarding not finding any injury on the person of the prosecutrix and chances of false implication can also not be accepted in view of entire evidence of the prosecutrix. Admittedly, the prosecutrix was a married lady and there would be hardly any chance of coming any' internal injury of her private part. So far as external injuries are concerned, it depends upon many factors like nature of force and place used, condition of surface and the manner in which the victim subjected herself to submission of culprits. In the present case, two persons had over-powered the lady by using force, on which, she went completely under their physical control, therefore, there would be hardly any chance of coming external injuries. 11. As far as argument regarding possibility of a consenting party is concerned, the Apex Court held that there is a difference between consent and submission and every consent involve a submission but the converse does not follow and a mere act of submission does not involve consent. This is what the Apex Court said in the matter of Deelip Singh (supra) referring to the decision of Uday's case (supra) and approving the judgment of Punjab High Court rendered in the matter of Rao Harnarain Singh v. State . This is what the Apex Court said in the matter of Deelip Singh (supra) referring to the decision of Uday's case (supra) and approving the judgment of Punjab High Court rendered in the matter of Rao Harnarain Singh v. State . In the present case, an important factor is that the prosecutrix had joined in the factory just 2 days prior to the date of incident. Therefore, it cannot be said that there was old intimacy between her and appellant-Vijay. If she would have been a consenting party with appellant Vijay, firstly, she would not have involved the other appellant-Narayan along with Vijay in their personal activities. Secondly, there was no reason with her to disclose these facts to P.W. 7 Kiran Saxena, who was her neighbour and who had taken her to factory for a job and also to her husband Sunil Kumar (P.W. 9). It is not the case of prosecution or the defence that the scenario of sexual intercourse was witnessed by some person in the factory, therefore, the prosecutrix turned hostile and started conducting in dissenting manner. It comes in the evidence of Kiran Saxena (P.W. 7) that she had seen the prosecutrix weeping in the house and when they asked to her as to why she is weeping, she narrated the story to them. These are all the reasons which rule out the possibility of the prosecutrix being a consenting party. In the opinion of this Court, in fact, she was over-powered by 2 appellants and she went in physical control of them making herself in complete submission to them having no other way except to do the same. Such kind of submission, obtained by force does not involve consent. There is no force in the arguments advanced by learned Counsel for the appellants and the same cannot be accepted. 12. Lastly, learned Counsel for the appellants argued about minor discrepancy in the evidence of the prosecutrix, I have gone through the evidence of the prosecutrix. Those discrepancies do not go to the root of her credibility. It is an old settled principle that overmuch importance cannot be given to minor discrepancies. 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. Moreso when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. It is an old settled principle that overmuch importance cannot be given to minor discrepancies. 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. Moreso when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. Please see Bharwada Bhoginbhai Hirjibhai v. State of Gujarat . It is also well settled that when the version of the prosecutrix inspires confidence of the Court and the Court feels it proper to depend on her testimony, a conviction can well be based on it needing no corroboration thereof. It is also to be remembered that the status of the victim of a rape case is equivalent to the status of an injured witness and the evidence of a victim of sexual assault stands on par with evidence of an injuried witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offender is entitled to great weight, absence of corroboration notwithstanding. Please see Bharwada Bhogirbhai Harjibhai v. State of Gujarat referred by the Apex Court in the matter of State of Tamil Nadu v. Ravi alias Nehru 2006 (7) SCR 264 : 2006 Cri LJ 3305 while dealing with a case of rape victim. 13. If we examine the evidence of the prosecutrix in light of other evidence, it would appear that she was subjected to forcible sexual intercourse by appellant-Vijay for which the other appellant has assisted him. The Sessions Court committed no error of law by holding the appellants guilty of offence punishable under Section 376(2)(g), IPC. 14. There is no merit in the appeals. They are accordingly, dismissed. The conviction and sentences awarded by the Sessions Court are confirmed.