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2012 DIGILAW 134 (CHH)

MUKESH KUMAR v. STATE OF C. G.

2012-05-07

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 26-2-2004 passed by Sessions Judge, Rajnandgaon in Sessions Trial No. 174/2003. By the impugned judgment, accused/appellant Mukesh Kumar has been convicted and sentenced in the following manner: Conviction Sentence Under Section 376(1) IPC Rigorous Imprisonment for 10 years 2. Case of the prosecution, in brief, is as under: Prosecutrix (PW-7) (In purview of Section 228-A of the Indian Penal Code and decisions in State of Punjab Vs. Ramdev Singh (2004) 1 SCC 421, Bhupinder Sharma Vs. State of H.P. (2004) Cri.L.J. 1 (SC) and State of Karnataka Vs. Puttaraja (2004) 1 SCC 475, name of the prosecutrix is not being mentioned) was residing at Village Singdai along with her husband Neelkumar (PW-9) and children and was engaged in the occupation of cultivation. On 15-9-2003, at about 7 P.M., she was going from her house to the house of her in-laws. On the way, Pushpa (PW-l) met her and asked her to give cooked vegetable. She came back to her house along with Pushpa (PW-l) to give her cooked vegetables. As soon as she reached at the door of her house, the appellant pushed her inside her house, closed the door from inside, gagged her mouth, threatened her of life, forcibly opened her saree, pushed her on a cot, lifted her petticoat up and committed sexual intercourse with her. She tried to stop the appellant many times, but the appellant did not stop. Threatening of her life, the appellant committed sexual intercourse with her and cut her lips with his teeth. Due to causing her to fall down, she sustained injury. After causing her to fall down from the cot, the appellant committed, exual intercourse with her on the earth also. After committing sexual intercourse with her, the appellant fled from there through the back door of the house. She narrated the incident to Pushpa (PW-l) and her husband Neelkumar (PW-9). She went to police station along with her husband Neelkumar (PW-9) to lodge a report. On the basis of her report, First Information Report (Ex.P-8) was registered in Police Station Basantpur. The prosecutrix (PW-7) was sent to District Hospital, Rajnandgaon for medical examination vide EX.P-5. Dr. Shail Khare (PW-4) examined the prosecutrix (PW-7) and gave report (Ex.P-5A), in which, she found abrasion 2cmsx2cms on left knee. The prosecutrix (PW-7) was complaining of pain in breasts. On the basis of her report, First Information Report (Ex.P-8) was registered in Police Station Basantpur. The prosecutrix (PW-7) was sent to District Hospital, Rajnandgaon for medical examination vide EX.P-5. Dr. Shail Khare (PW-4) examined the prosecutrix (PW-7) and gave report (Ex.P-5A), in which, she found abrasion 2cmsx2cms on left knee. The prosecutrix (PW-7) was complaining of pain in breasts. The appellant was sent to District Hospital, Rajnandgaon for medical examination vide EX.P-2A. Dr. V.P. Maheswar (PW2) examined the appellant and gave report (Ex.P-2), in which, he found that the appellant could perform an act of sexual intercourse. In further investigation, spot-map was prepared by Investigating Officer Sub-Inspector Sanjay Pundhir (PW-10) vide EX.P-3. Another spot-map was prepared by Patwari Ashok Kumar Sahu (PW-5) vide Ex.P-6. At the instance of the prosecutrix (PW -7), underwear of the appellant and pieces of broken bangles were seized from the place of occurrence vide Ex.P-4. The underwear of the appellant seized from the place of occurrence was sent to District Hospital, Rajnandgaon for examination vide EX.P-7. Report therefrom was received vide EX.P-7 A. Vaginal slides of the prosecutrix (PW -7) were prepared and seized vide EX.P-12. Petticoat of the prosecutrix (PW -7) was also seized vide Ex.P12 itself. The seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex.P-15) was received therefrom vide Ex.P-14. In Report (Ex.P-15), it is mentioned that articles A - vaginal slide of the prosecutrix (PW -7), B - petticoat of the prosecutrix (PW -7) and F - underwear of the appellant contained human spermatozoa and stains of semen. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Rajnandgaon, who, in turn, committed the case to the Court of Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri P.K.C. Tiwari, learned Senior Advocate with Shri B.L. Sahu, learned counsel for the appellant argued that the evidence of prosecutrix (PW-7) is wholly unreliable. The conduct of the prosecutrix is unnatural. According to the prosecutrix, the appellant entered her house and closed the door from inside. He further argued that when the appellant entered the house of the prosecutrix, at that time, Pushpa (PW-1) was standing outside the house of the prosecutrix. The conduct of the prosecutrix is unnatural. According to the prosecutrix, the appellant entered her house and closed the door from inside. He further argued that when the appellant entered the house of the prosecutrix, at that time, Pushpa (PW-1) was standing outside the house of the prosecutrix. Pitamber, who is nephew of the prosecutrix, had come to the house of the prosecutrix with oil, but the prosecutrix did not tell him anything about the incident. The house of the prosecutrix is situated adjacent to road, but the prosecutrix did not raise any alarm or make any effort to come out from the house. Therefore, the evidence of the prosecutrix cannot be based for conviction. The conduct of the prosecutrix appears that she was a consenting party. Therefore, it is not safe to rely upon the sole testimony of the prosecutrix. The appellant deserves to be acquitted of the charges framed against him. 4. 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 Sessions Judge. 5. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 174/2003. 6. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) 2012 Cri.L.J. 693, the Hon'ble Supreme Court observed as follows: "Evidence of Prosecutrix: 15. 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 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. 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. 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. 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 v. Chandra prakash Kewalchand Jain, AIR 1990 SC 658: (1990 Cri LJ 889); State of UP. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248: (2004 AIR SCW 6563); and Vijay @ Chinee vs. State of MP., (2010) 8 SCC 191) : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). 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." 7. It is a trite law that the sole testimony of the prosecutrix can be based for conviction without further corroboration. The court may convict the accused on the sole testimony of the prosecutrix." 7. It is a trite law that the sole testimony of the prosecutrix can be based for conviction without further corroboration. Now, I shall examine whether the evidence of the prosecutrix (PW -7) is cogent, trustworthy and can be based for conviction? 8. Prosecutrix (PW -7) deposed that on 15-9-2003, at about 7 P.M., after having cooked food, she was going to her old house where her in-laws were residing. On the way, Pushpa (PW-1) met her. Pushpa (PW-1) asked her for vegetables. She went inside her house for vegetables. When she was coming out of the house to give vegetables to Pushpa (PW-l), at that time, the appellant entered the house and closed the door from inside. She further deposed that when she tried to shout, the appellant gagged her mouth. The appellant, having caught her, taken to a cot. She tried to flee. The appellant dragged her to kitchen and caused her to fall down. Thereafter, the appellant committed sexual intercourse with her. Thereafter, the appellant fled from there through the back door of the house. She further deposed that when she had shouted, Rajimbai had heard her shout. 9. Prosecutrix (PW-7) deposed that she tried to open the door, but she could not succeed as the door was closed from outside. She further deposed that her nephew (Bhanja) Pitamber opened the door from outside. Thereafter, she went to the house of her in-laws and narrated the incident to her husband. 10. Neelkumar (PW-9) deposed that the prosecutrix (PW-7) is his wife. On 15-9-2003, at about 7 P.M., Pitamber came to him and told that door of the new house was closed from outside. After sometime, prosecutrix (PW -7) came to him in the old house and narrated the incident. He tried to search the appellant but could not succeed. Thereafter, prosecutrix (PW -7) lodged FIR (Ex.P-8). 11. According to prosecutrix (PW-7), she, on demand of vegetables by Pushpa (PW-1), had gone to her house to take vegetables for Pushpa (PW-1) and at that time, Pushpa (PW-l) was standing outside the house. Pushpa (PW-I) did not support the version of the prosecutrix. She specifically deposed that she did not know anything about the incident. 12. In the instant case, Rajimbai and Pitamber were material witnesses for the prosecution. Pushpa (PW-I) did not support the version of the prosecutrix. She specifically deposed that she did not know anything about the incident. 12. In the instant case, Rajimbai and Pitamber were material witnesses for the prosecution. According to prosecutrix (PW -7), Rajimbai heard her shout and Pitamber opened the door of the house from outside. Pitamber told Neelkumar (PW 9), husband of prosecutrix (PW-7) that the door of the house of Neelkumar (PW-9) was closed from outside. But, the prosecution did not examine these two witnesses, which is fatal to its case. 13. Prosecutrix (PW-7) deposed that her nephew (Bhanja) opened the door of the house from outside, entered the house and gave her oil, but she did not narrate the incident to him. She further deposed that when after giving vegetables to Pushpa (PW-1), she went out of her new house, and she (prosecutrix - PW -7) began to close the door, at that time itself, the appellant came there. At that time, Pushpa (PW-1) was standing there outside the house. She further deposed that Pitamber (her nephew) had first called her saying Maami from outside the house. Pitamber had himself opened the door of the house from outside, entered the house and given her kerosene. She had not said Pitamber that the door was closed from outside and had not asked him to enter the house by opening the door from outside. 14. Prosecutrix (PW-7) deposed that the underwear of the appellant had left at her house which was seized by the police. In cross-examination, she deposed that the appellant had caused her to fall down twice. The appellant had dragging her, taken to the kitchen. She further deposed that when the appellant had, dragging her, taken inside the house, at that time, Pushpa (PW-1), was present outside the house. She further deposed that she had not sustained injury in her waist nor she sustained abrasion on her body. Prosecutrix (PW-7) deposed that the appellant had fled from there through rear door. 15. According to prosecutrix (PW-7), the appellant fled through rear door of the house. Patwari Ashok Kumar Sahu (PW -5) specifically deposed that there was no rear door in the house of prosecutrix (PW-7). He further deposed that the house of prosecutrix (PW-7) had only one door which opened in north side on the road. 15. According to prosecutrix (PW-7), the appellant fled through rear door of the house. Patwari Ashok Kumar Sahu (PW -5) specifically deposed that there was no rear door in the house of prosecutrix (PW-7). He further deposed that the house of prosecutrix (PW-7) had only one door which opened in north side on the road. He further deposed that house of Rajimbai was not situated near the house of prosecutrix (PW-7). He further deposed that if anybody would have talked there loudly, the same could be heard easily. 16. According to prosecutrix (PW-7), when the appellant dragged her inside her house, at that time, Pushpa (PW-1) was present there. Had the appellant dragged prosecutrix (PW-7) inside her house, prosecutrix (PW-7) and Pushpa (PW-1) would have shouted for help, but prosecutrix (PW-7) did not even raise any alarm or make any effort to come out of clutches of the appellant. Even prosecutrix (PW-7) did not narrate the incident to Pitamber. 17. It was not possible for the appellant to drag prosecutrix (PW-7) in presence of Pushpa (PW-1). Had the appellant forcibly pushed prosecutrix (PW-7), prosecutrix (PW-7) would have sustained injury on back portion of her body and wrist, but she did not sustain any injury on back portion of her body nor on her wrist. 18. According to FSL Report (Ex.P-15), vaginal slide of prosecutrix (PW7) - article A, her petticoat - article B and underwear of the appellant - article F contained human spermatozoa and stains of semen. Prosecutrix (PW -7) is a married woman. Mere presence of human spermatozoa on the above articles is not sufficient to indicate that the appellant committed sexual intercourse with prosecutrix (PW -7) forcibly. 19. The conduct of prosecutrix (PW-7) is unnatural. Prosecutrix (PW-7) did not even raise any alarm or make any effort to come out of clutches of the appellant. Even prosecutrix (PW -7) did not narrate the incident to Pitamber. It indicates that prosecutrix (PW-7) was a consenting party to the commission of sexual intercourse with her. In the instant case, some serious discrepancies in the evidence of prosecutrix (PW-7) existed. Therefore, her evidence cannot be based for conviction of the appellant without corroboration. 20. Learned Sessions Judge erred in convicting the appellant. The impugned judgment of conviction and sentence is not sustainable. 21. In the result, the appeal is allowed. In the instant case, some serious discrepancies in the evidence of prosecutrix (PW-7) existed. Therefore, her evidence cannot be based for conviction of the appellant without corroboration. 20. Learned Sessions Judge erred in convicting the appellant. The impugned judgment of conviction and sentence is not sustainable. 21. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside. The appellant is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.