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2012 DIGILAW 326 (CHH)

MANBODH v. STATE OF C. G.

2012-12-11

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 4-8-2004 passed by Sessions Judge, Surguja (Ambikapur), in Sessions Trial No. 153/2004. By the impugned judgment, accused/appellant Manbodh has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo simple imprisonment for 3 months. 2. Case of the prosecution, in brief, is as under: Prosecutrix (PW-4) was, on the date of incident, a 28 years' old married woman. On 5-3-2004, she had gone to forest to collect wood (bushes) along with her friend Ratiyano (PW-2). At about 3:00 PM, when she was collecting the wood, the appellant came there, caught the prosecutrix (PW-4), gagged her mouth by his Gamchha, dragged her into a pit, threw her on the ground and committed sexual intercourse with her against her will. The appellant threatened the prosecutrix (PW-4) of life. After committing sexual intercourse, the appellant fled from there. Her husband Mangala (PW-5) had gone to Village Udaypur for earning livelihood. After returning her husband, she narrated the incident to him and lodged First Information Report (Ex.P-2) in Police Outpost Udaypur. Regular First Information Repot (Ex.P-1) was recorded in Police Station Lakhanpur. Prosecutrix (PW-4) was sent to Community Health Centre, Lakhanpur for medical examination vide EX.P-6A. Dr. Rojnin R. Ekka (PW6) examined the prosecutrix (PW-4) and gave her report (Ex.P-6). Two slides of vaginal swab of prosecutrix (PW-4) were prepared. Petticoat of the prosecutrix (PW-4) was seized vide EX.P-5. Slides of vaginal swab were seized vide EX.P-11. Site map (Ex.P-3) was prepared by the Investigating Officer and another site map (Ex.P-4) was prepared by Patwari. The appellant was also sent to Community Health Centre, Udaypur for medical examination. Dr. I.D. Bhatnagar (PW-9) examined the appellant and gave his report vide Ex.P-10A, in which, he found that the appellant could perform the act of sexual intercourse. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Surguja, Ambikapur, who, in turn, committed the case to the Court of Session, Surguja (Ambikapur), who, conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Vivek Pandey, learned counsel for the appellant argued that the FIR (Ex.P-2) was lodged belatedly. 3. Shri Vivek Pandey, learned counsel for the appellant argued that the FIR (Ex.P-2) was lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for an offence punishable under Section 376 of the IPC. He further argued that the prosecution case is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with a married woman. On close scrutiny of the evidence available on record, possibility of the prosecutrix (PW-4) having being consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 4. On the other hand, Shri Sushil Dubey, learned 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. 5. Having heard rival contentions of the parties, I have perused record of Sessions Trial No. 153/2004 with utmost circumspection. 6. I shall first deal with question of delay in lodging First Information Report. 7. Prosecutrix (PW-4) deposed that she lodged the FIR (Ex.P-2) in Police Outpost Udaypur and regular FIR (Ex.P-1) was recorded in Police Station, Lakhanpur. Mangala (PW-5) also deposed that his wife (the prosecutrix) lodged the FIR (Ex.P-2) in Police Outpost Udaypur. ASI K.P. Gupta (PW-8) deposed that the prosecutrix (PW-4) had lodged the FIR (Ex.P-2) in Police Outpost Udaypur ort 12-3-2004. 8. The date and time of the incident was 5-3-2004 at about 3:00 PM and the FIR (Ex.P-2) was lodged on 12-3-2004 at about 8:30 AM. The distance between the place of occurrence and the police outpost is 7 kilometers. Prosecutrix (PW-4) deposed that her husband had gone to Udaypur for earning livelihood. Her husband returned home on Saturday. Then she narrated the incident to him. Mangala (PW-5) deposed that he returned his house on the next day of the incident and her wife (the prosecutrix) narrated the incident to him. Thereafter, prosecutrix (PW-4) lodged report (Ex.P-2) in Police Outpost Udaypur. 9. The date and time of the incident was 5-3-2004 at about 3:00 PM. Husband of the prosecutrix (PW-4) returned his home on Saturday which was next day of the incident and the FIR (Ex.P-2) was lodged on 12-3-2004 at about 8:30 AM. The distance between the place of occurrence and the police outpost is 7 kilometers. 9. The date and time of the incident was 5-3-2004 at about 3:00 PM. Husband of the prosecutrix (PW-4) returned his home on Saturday which was next day of the incident and the FIR (Ex.P-2) was lodged on 12-3-2004 at about 8:30 AM. The distance between the place of occurrence and the police outpost is 7 kilometers. The delay in lodging the FIR (Ex.P-2) is mentioned as ^^ifr ds ckgj jgus ls ,oa jk; lykg ls foyac^^ . Prosecutrix (PW-4) deposed that her husband was not present in the village. When her husband returned on Saturday, she narrated the incident to him. Mangala (PW-5) deposed that he returned on Saturday and prosecutrix (PW-4) narrated the incident to him. It appears that the prosecutrix (PW-4) narrated the incident to her husband on the next day of the incident. 10. Mangala (PW-5) deposed that it is true that prosecutrix (PW-4) did not narrate the incident to Ratiyano alias Deverhin (PW-2). It is also true that the villagers had already come to know about the incident prior to its disclosure by the prosecutrix (PW-4) to him. 11. Looking to the evidence of prosecutrix (PW-4) and her husband Mangala (PW-5), it appears that the prosecutrix (PW-4) narrated the incident to her husband on the next day of the incident, i.e., 6-3-2004 and the FIR (Ex.P-2) was lodged in Police Outpost on 12-3-2004, i.e., after 7 days of the incident. The delay in lodging the FIR (Ex.P-2) is not properly explained by the prosecution which is fatal to its case. 12. Prosecutrix (PW-4) deposed that on the date of incident, her husband had gone to Udaypur for earning livelihood. She had gone to forest to collect the wood (bushes) along with her friend Ratiyano (PW-2). At about 3:00 PM, when they were collecting the wood, the appellant came there, caught the prosecutrix (PW-4), dragged her into a pit, threw her on the ground and committed sexual intercourse with her against her will. The appellant also threatened to kill her. After committing sexual intercourse, the appellant fled from there. She further deposed that she came to Ratiyano (PW-2) but she did not disclose the incident to her. When her husband returned home, she narrated the incident to him and lodged the FIR (Ex.P-2) in Police Outpost Udaypur. 13. The appellant also threatened to kill her. After committing sexual intercourse, the appellant fled from there. She further deposed that she came to Ratiyano (PW-2) but she did not disclose the incident to her. When her husband returned home, she narrated the incident to him and lodged the FIR (Ex.P-2) in Police Outpost Udaypur. 13. It is trite law that the sole testimony of the prosecutrix can be based for conviction without further corroboration. Now, I shall examine whether evidence of prosecutrix (PW-4) is cogent, trustworthy and can be based for conviction? 14. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi 2012 Cri. LJ. 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 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. 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 Vs. Chandra prakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of UP. Vs. 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." 15. In the instant case, prosecutrix (PW-4) deposed that on the date of incident, her husband had gone to Udaypur for earning livelihood. She had gone to forest to collect the wood (bushes) along with her friend Ratiyano (PW2). At about 3:00 PM, when she was collecting the wood, the appellant came there, caught her, dragged her into a pit, threw her on the ground and committed sexual intercourse with her against her will. The appellant also threatened to kill her. After committing sexual intercourse, the appellant fled from there. She further deposed that she came to Ratiyano (PW-2) but she did not disclose the incident to her. 16. Ratiyano (PW-2) deposed that she saw that the appellant was committing sexual intercourse with prosecutrix (PW-4). She further deposed that it is true that prosecutrix (PW-4) did not narrate the incident to her. It is also true that there was love affair between the appellant and the prosecutrix (PW4). 16. Ratiyano (PW-2) deposed that she saw that the appellant was committing sexual intercourse with prosecutrix (PW-4). She further deposed that it is true that prosecutrix (PW-4) did not narrate the incident to her. It is also true that there was love affair between the appellant and the prosecutrix (PW4). Mangala (PW-5) also deposed that his wife (the prosecutrix) did not narrate the incident to Ratiyano (PW-2). When the matter was disclosed in public, i.e., gYyk gks x;k then, on being asked by Mangala (PW-5) from the prosecutrix (PW-4), she narrated the incident to him. Later on, Ratiyano (PW-2) also disclosed the incident to him. 17. According to the prosecution, when prosecutrix (PW -4) was collecting the wood, the appellant came there, dragged the prosecutrix (PW-4), threw her into a pit and committed forcible sexual intercourse with her. Dr. Rojnin R. Ekka (PW-6) deposed that she had examined the prosecutrix (PW-4) and gave her report (Ex.P-6). In Ex.P-6, no internal or external injury was found on the body of the prosecutrix (PW-4). Had the appellant committed forcible sexual intercourse with the prosecutrix (PW-4) who was 28 years old married woman on the date of incident, she would have tried to save her and in this circumstance she would have sustained some injuries on her body but no injury was found on her body. 18. Ratiyano (PW-2) was also collecting wood nearby the prosecutrix (PW-4). Had the appellant caught prosecutrix (PW-4) and dragged her, she would have raised alarm and called Ratiyano (PW-2) for help, but she did not raise any alarm. Therefore, mere statement of prosecutrix (PW-4) that she was threatened by the appellant and, therefore, she did not raise any alarm is not sufficient to hold that the appellant committed forcible sexual intercourse with her. 19. Belated lodging of the FIR (Ex.P-2), the evidence of prosecutrix (PW4) and her unnatural conduct go to show that prosecutrix (PW-4) was a consenting party to the commission of sexual intercourse. Therefore, the evidence of prosecutrix (PW-4) cannot be based for conviction of the appellant. 20. On the basis of aforesaid discussion, I am of the view that the learned trial court has committed an error in convicting the appellant for the offence punishable under Section 376 IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 21. In the result, the appeal is allowed. 20. On the basis of aforesaid discussion, I am of the view that the learned trial court has committed an error in convicting the appellant for the offence punishable under Section 376 IPC. Hence, 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. He is acquitted of the charge framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.