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2012 DIGILAW 186 (CHH)

TARACHAND LODHI v. STATE OF C. G.

2012-07-30

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 7-2-2004 passed by Sessions Judge, Rajnandgaon in Sessions Trial No. 1 66/2003. By the impugned judgment, accused/ appellant Tarachand Lodhi has been convicted and sentenced in the following manner with direction to run the sentences concurrently: Conviction Sentence Under Section 450 IPC Rigorous imprisonment for 5 years Under Section 376(1) IPC Rigorous imprisonment for 10 years 2. Case of the prosecution in brief, is as under :- Prosecutrix (PW-1) (in purview of Section 228A of the Indian Penal Code, the name of prosecutrix (PW-1) has not been mentioned) was residing in Village Dilapahari. On 7-6-2003, at about 10 A.M. she was alone at her house along with her younger daughter. Her husband and in-laws had gone out to earn livelihood. The appellant entered her house and closed the bolt of the door from inside. He caught her hand. When she tried to extricate, he caught her head from her behind. She sustained injuries on her right eye, cheek and left eyebrow. Due to dashing of her head with the wall swelling had occurred on her head. The appellant caught her caused her to fall down and committed sexual intercourse with her forcibly. Thereafter, when he was fleeing, her husband Satilal (PW-2) came there Satilal (PW-2) saw the appellant fleeing. Prosecutrix (PW1) narrated him the incident. Thereaftershe narrated the incident to Panch Narhar Nandu (PW-3) and Lady Kotwar of the village. She lodged First Information Report (Ex.P-1) in Police Station Lalbagh. She was sent to District Hospital, Rajnandgaon for medical examination vide EX.P-2A. Dr. Sushma Kumre (PW-8) examined prosecutrix (PW-1) and gave her report (Ex.P-2), in which, she found abrasions on urethra and labia minora and there was evidence of forceful intercourse. In further investigation, petticoat of prosecutrix (PW-1) was seized vide Ex.P-3. Pieces of bangles and Khilwa were seized from the place of occurrence vide Ex.P-4. Underwear of the appellant was also seized vide Ex.P-5. Vaginal slides and pubic hair of prosecutrix (PW-1) were seized from Constable Thagiya Chandrawanshi (PW-4) vide EX.P-6. The appellant was also sent to District Hospital, Rajnandgaon for medical examination vide EX.P-11 A. Dr. Rajesh Sadani (PW-6) examined him and gave his report (Ex.P-11), in which, he found that the appellant was capable of committing sexual intercourse. The seized articles were sent to Forensic Science Laboratory, Raipur. Report (Ex.P-9) was received there from. The appellant was also sent to District Hospital, Rajnandgaon for medical examination vide EX.P-11 A. Dr. Rajesh Sadani (PW-6) examined him and gave his report (Ex.P-11), in which, he found that the appellant was capable of committing sexual intercourse. The seized articles were sent to Forensic Science Laboratory, Raipur. Report (Ex.P-9) was received there from. 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. To hold the appellant guilty, the prosecution examined prosecutrix (PW-1), Satilal (PW-2), Nandu (PW-3), Constable Thagiya Chandrawanshi (PW-4), ASI Sunita Yadav (PW-5), Dr. Rajesh Sadani (PW-6), Inspector P.S. Maravi (PW-7) and Dr. Sushma Kumre (PW-8). The appellant examined Samaylal (DW-1) in his defence. 4. Shri Anoop Majumdar, learned counsel for the appellant argued that the trial Court has grossly erred in holding the appellant guilty of offences punishable under Sections 450 and 376(1) IPC. He further argued that the prosecution story is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with a married lady in presence of her child. On closed scrutiny of the evidence available on record, possibility of the prosecutrix having been a consenting party cannot be ruled out. He further argued that it is possible that the injuries sustained by prosecutrix (PW-1) on her private parts would have occurred during sexual intercourse with her husband. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 5. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court. 6. Having heard rival contentions of the parties, I have perused record of Sessions Trial No. 166/2003 with utmost circumspection. The conviction of the appellant is based on the evidence of prosecutrix (PW-1), Satilal (PW-2) and Nandu (PW-3) as also on the medical evidence. 7. Prosecutrix (PW-1) deposed that on the date of incident, she was alone at her house along with her younger child. Her husband had gone to work in a tractor and her in-laws had gone to work in a tank. The appellant entered her house and closed the door from inside. 7. Prosecutrix (PW-1) deposed that on the date of incident, she was alone at her house along with her younger child. Her husband had gone to work in a tractor and her in-laws had gone to work in a tank. The appellant entered her house and closed the door from inside. He, having caught her, committed sexual intercourse with her forcibly. When she tried to extricate her, her bangles broke and she sustained abrasion on her eyebrow. As soon as she opened the door the appellant fled and at the same time, her husband Satilal (PW-2) came there. She narrated the incident to her husband Satilal (PW-2). 8. In Mohd. Imran Khan Vs. Stale (Govt. of NCT of Delhi), 2012 Cri.L.J. 693 (SC) 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. 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 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 v. 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." 9. 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 prosecutrix (PW-1) is cogent, trustworthy and can be based for conviction? 10. Prosecutrix (PW-1) deposed that the appellant entered her house and committed forcible sexual intercourse with her. She further deposed that she did not sustain any injury on her person. She further deposed that when she opened the door of her house, the appellant fled and at the same time, her husband Satilal (PW-2) came there. She further deposed that the house of the appellant was situated in front of her house. A Tailoring-Shop of Babulal was also situated in front of her house. 11. She further deposed that when she opened the door of her house, the appellant fled and at the same time, her husband Satilal (PW-2) came there. She further deposed that the house of the appellant was situated in front of her house. A Tailoring-Shop of Babulal was also situated in front of her house. 11. Satilal (PW-2) deposed that on the date of incident, he had gone to work in a tractor and his wife (prosecutrix - PW-1) and child were at his house. He returned home at about 10-10:30 A.M. The door of his house was closed from inside. He knocked the door. His wife (prosecutrix - PW-1) opened the door. At that time, she was weeping. Weeping, she told him that Tarachand (the appellant) raped her and at that time, the appellant fled from his house. 12. In examination-in-chief prosecutrix (PW-1) did not depose anywhere I that when the appellant was committing sexual intercourse with her forcibly, she tried to shout and raise alarm to come out of his clutches. 13. In the FIR (Ex.P-1), it is mentioned that prosecutrix (PW-1) sustained abrasions on her cheek, left eye and left eyebrow as also swelling on her head. She was examined medically on 8-6-2003, i.e., on the next day of the incident. Dr. Sushma Kumre (PW-8), who examined prosecutrix (PW-1), did not find any external injury on the person of prosecutrix (PW-1). Dr. Sushma Kumre (PW-8) deposed that abrasions were present on urethra and labia minora. 14. Prosecutrix (PW-1) was, on the date of incident, 25 years old married lady. It was literally impossible for the appellant to commit forcible sexual intercourse with her. Had prosecutrix (PW.1) resisted against the forcible sexual intercourse and tried to come out of clutches of the appellant, she would have sustained external injuries on her person, but, in her medical examination report (Ex.P-2A), no any external injury was found by Dr. Sushma Kumre (PW-8). 15. According to FSL Report (Ex.P-9), human spermatozoa was not present on articles A - pubic hair of prosecutrix (PW-1), B - vaginal slides of prosecutrix (PW-1), C - petticoat of prosecutrix (PW-1) and D - underwear of the appellant. 16. From perusal of evidence of Satilal (PW-2), it appears that when he came his house, door of his house was closed from inside and when he knocked the door, it was opened by prosecutrix (PW-1) herself. 16. From perusal of evidence of Satilal (PW-2), it appears that when he came his house, door of his house was closed from inside and when he knocked the door, it was opened by prosecutrix (PW-1) herself. After opening the door by prosecutrix (PW-1), the appellant fled from the house. 17. The above evidence goes to show that conduct of prosecutrix (PW-1) is unnatural. She even did not raise any alarm or make any effort to come out of clutches of the appellant. The Tailoring-Shop of Babulal was situated in front of her house. She opened the door of her house only after knocking it by her husband Satilal (PW-2). This goes to show that prosecutrix (PW-1) was a consenting party to the commission of sexual intercourse. Therefore, evidence of prosecutrix (PW-1) cannot be based for conviction of the appellant without corroboration. Learned Sessions Judge erred in convicting the appellant. Hence, the impugned judgment of conviction and sentence is not sustainable. 18. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 450 and 376(1) IPC are set aside. He is acquitted of the charges framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.