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2012 DIGILAW 94 (CHH)

RAMSUKH v. STATE OF C. G.

2012-03-26

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 24-12-2003 passed by Additional Sessions Judge, Janjgir in Sessions Trial No.345/2003. By the impugned judgment, accused/appellant Ramsukh has been convicted under Section 376(1) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.200/-, in default, to further undergo R.I. for 1 month. 2. Case of the prosecution, in brief, is as under: Prosecutrix Duwasa Bai (PW-1) is wife of appellant's son Manoj Kumar and daughter-in-law of the appellant. After her marriage with Manoj Kumar, she lived happily with him for near about 7-8 months. Thereafter, the appellant and his wife, i.e., acquitted accused Smt. Rukhmani alias Rukhmin started torturing her saying that she did not know cooking good food. On the date of incident, when Manoj Kumar (husband of the prosecutrix) and her brother-in-law (Dever) were not present at the house, appellant Ramsukh committed rape with the prosecutrix. At that time, acquitted accused Smt. Rukhmani alias Rukhmin caught hold hands of the prosecutrix and roped in her legs and thereby she assisted the appellant in committing rape with the prosecutrix. The appellant committed rape with the prosecutrix many times. Prosecutrix Duwasa Bai (PW-1) narrated the incident to her sisters-in-law (Bhabhi) Sukhbai (PW-2) and Kewarabai (PW -4). The prosecutrix lodged First Information Report (Ex .P-1) at Police Station Janjgir. The prosecutrix was sent to District Hospital, Janjgir for medical examination vide Ex.P-4. Dr. Anita Shrivastava (PW-7) examined the prosecutrix and gave her report (Ex.P-5), in which, she found that the prosecutrix is habitual of sexual intercourse. In further investigation, slide of vaginal swab was seized vide Ex.P-3. The appellant was also sent to District Hospital, Janjgir for medical examination vide EX.P-6. Dr. B.S. Chandel (PW-8) examined him and gave his report vide EX.P-7. After completion of the investigation, charge-sheet was filed against the appellant and the acquitted accused in the Court of Chief Judicial Magistrate, Janjgir, who, in turn, committed the case to the Court of Session at Bilaspur, from where it was received on transfer by the learned Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Smt. Rukhmani alias Rukhmin. 3. Shri R.K. Jain, learned counsel for the appellant argued that FIR (Ex.P-l) was lodged at belated stage. In absence of proper explanation therefor, the prosecution story becomes doubtful. 3. Shri R.K. Jain, learned counsel for the appellant argued that FIR (Ex.P-l) was lodged at belated stage. In absence of proper explanation therefor, the prosecution story becomes doubtful. The prosecutrix did not disclose the incident to anybody for near about 4 months, while, during this period, she had gone to her maternal house too. The conduct of the prosecutrix is very unnatural. The testimony of the prosecutrix is full of contradictions. On the basis of evidence of the prosecutrix, co-accused Smt. Rukhmani alias Rukhmin was acquitted by the trial Court. On the basis of same set of evidence, the appellant cannot be convicted. Therefore, it is not safe to rely upon the testimony of the prosecutrix. The appellant deserves to be acquitted. 4. 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 Additional Sessions Judge do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.345/2003. The conviction of the appellant is based on the testimony of prosecutrix Duwasa Bai (PW-1), Sukhbai (PW-2) and Kewarabai (PW-4). 6. Duwasa Bai (PW-1) deposed that she lodged FIR (Ex.P-l) in Police Station Janjgir. FIR (Ex.P-l) was lodged on 7-7-2003 and the time of incident is mentioned in the FIR as for 4 months continuously. 7. In Tulshidas Kanolkar Vs. State of Goa (2003) 8 SCC 590, the Hon'ble Supreme Court observed thus: "5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication (f vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle." 8. In Sohan Singh and another Vs. State of Bihar (2010)1 SCC 68, the Hon'ble Supreme Court observed thus: "13. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more." 9. Now, I shall examine whether the prosecution has properly explained delayed lodging of the FIR (Ex.P-l)? 10. Duwasa Bai (PW-1) deposed that the appellant had threatened her not to tell anything about the incident to anybody, therefore, she did not disclose the incident to anyone. When she went to her maternal house, she narrated the incident to Sukhbai (PW-2) and Kewarabai (PW-4) and thereafter lodged the FIR (Ex.P-l). 11. Generally, the festival of Holi falls in the month of March every year. According to the above prosecution witnesses, Duwasa Bai (PW-1) narrated them the incident when she had come to her maternal house on the occasion of Holi festival. The FIR (Ex.P-l) was lodged in the month of July, 2003, which fell after 4 months of disclosing the fact of rape committed by the appellant. 12. According to the above prosecution witnesses, Duwasa Bai (PW-1) narrated them the incident when she had come to her maternal house on the occasion of Holi festival. The FIR (Ex.P-l) was lodged in the month of July, 2003, which fell after 4 months of disclosing the fact of rape committed by the appellant. 12. In the sexual offence, it is no doubt true that mere delay in lodging the FIR is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case, the Court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of totality of the evidence, the Court of fact has to consider whether the delay in lodging the report adversely affected the case of the prosecution. 13. The evidence of prosecutrix Duwasa Bai (PW-1) on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. 14. Duwasa Bai (PW-l) deposed that 4 months prior to the date of her deposition, at about 1 P.M., her husband was not present at the house. Her Devar (brother-in-law) had come to Janjgir. Her Nanad (sister-in-law) Julee had come to Talab. At that time, her father-in-law (the appellant) and mother-in-law (acquitted accused) were present at the house. The appellant told her that he will commit sexual intercourse with her. She refused to it. On this, the appellant flung her on the cot and forcibly committed sexual intercourse with her. On her refusing, the acquitted accused (mother-in-law) beat her and caught hold her legs and hands. 2-3 days thereafter, the appellant sent her husband to Jarve and committed sexual intercourse with her whole night. At that time, the acquitted accused told her that if she will not allow the sexual intercourse then what will she do and further told that no child was being produced by her. She further deposed that when her sisters-in-law (Bhabhi) Sukhbai (PW-2) and Kewarabai (PW-4) and her mother Khikhbai (PW-5) had come to her matrimonial house, she had narrated them the whole episode. 15. She further deposed that when her sisters-in-law (Bhabhi) Sukhbai (PW-2) and Kewarabai (PW-4) and her mother Khikhbai (PW-5) had come to her matrimonial house, she had narrated them the whole episode. 15. Sukhbai (PW-2) and Kewarabai (PW-4) deposed that they had gone to the matrimonial house of the prosecutrix. Weeping, the prosecutrix had narrated them the incident that her father-in-law (the appellant) was forcibly committing sexual intercourse with her for about 4 months. Khikhbai (PW -5) deposed in similar fashion. 16. Now, I shall examine whether the evidence of the prosecutrix is cogent, convincing and reliable? 17. It is now settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of the prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement. The Court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. 18. Duwasa Bai (PW-1) deposed that during the abovementioned period of 4 months, she had gone to her maternal house and had told her father and sisters-in-law that the appellant and her mother-in-law were treating her with cruelty. She further deposed that when her brother and sisters-in-law (Bhabhi) had come to her matrimonial house, she had not told them about Marpeet being committed with her and roping in being done with her. She further deposed that her sisters-in-law told her that who tolerates ill-treatment of her husband, she lives happily. 19. Sukhbai (PW-2) deposed that it is true that Duwasa Bai (PW-l) had come to their house on the occasion of Holi festival. Kewarabai (PW-4) also deposed that Duwasa Bai (PW-1) had come to her maternal house on the occasion of Holi festival. Sukhbai (PW-2) deposed that Duwasa Bai (PW-l) had come to maternal house in the month of Ashadh. She further deposed that Duwasa Bai (PW-1) used to go out to attend the call of nature and take bath in Talab (tank) in her matrimonial village. Many people of the Basti (locality) also used to go to the said Talab. 20. Sukhbai (PW-2) deposed that Duwasa Bai (PW-l) had come to maternal house in the month of Ashadh. She further deposed that Duwasa Bai (PW-1) used to go out to attend the call of nature and take bath in Talab (tank) in her matrimonial village. Many people of the Basti (locality) also used to go to the said Talab. 20. According to the prosecutrix, when the appellant committed sexual intercourse with her, acquitted accused Smt. Rukhmani alias Rukhmin caught hold her hands and roped in her legs and thereby she assisted the appellant in committing rape with her. 21. In Selveraj Vs. The State of Tamil Nadu (1976) 4 SCC 343, the Hon'ble Supreme Court observed thus: "4. ......... it is difficult to believe that the appellant was so inflamed with passion as to demand sexual intercourse with the deceased who happened to be the wife of his cousin, and that too, not while she was alone, but in the presence of her husband. Even if he was mad with lust, he would not have chosen to come at this particular time, namely, 9 p.m. for making advances to the deceased, when he must have known that her husband Natesan would in all probability be at home. In any event, when Natesan came into the house, the appellant would have run away and not continued to insist that the deceased should submit to sexual intercourse with him. The entire story appears to be highly improbable and inconsistent with the ordinary course of human nature. ....." 22. In the instant case, when the appellant committed sexual intercourse with the prosecutrix, acquitted accused Smt. Rukhmani alias Rukhmin caught hold her hands and roped in her legs and thereby she assisted the appellant in committing rape with her. In this case too, it is difficult to believe that in presence of his wife, the appellant would have committed sexual intercourse with the prosecutrix and it is also not probable that the wife of the appellant would have allowed the appellant to commit sexual intercourse with the prosecutrix. 23. According to the prosecutrix, the appellant committed sexual intercourse with her continuously for about 4 months and she did not disclose the incident to anybody in her matrimonial village till the month of Ashadh. 23. According to the prosecutrix, the appellant committed sexual intercourse with her continuously for about 4 months and she did not disclose the incident to anybody in her matrimonial village till the month of Ashadh. Even at the time when she had gone to her maternal house on the occasion of Holi festival, she did not disclose the incident to her mother and sisters-in-law (Bhabhi). She firstly disclosed the incident to her mother and sisters-in-law in the month of Ashadh. 24. Therefore, the entire story appears to be highly improbable and inconsistent with the ordinary course of human nature. Therefore, the testimony of the prosecutrix is not clinching, cogent and trustworthy. The evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for committing rape with the prosecutrix. The appellant must, therefore, be acquitted of the offence charged against him. 25. I, accordingly, allow the appeal, set aside the judgment of conviction and sentence recorded against the appellant and acquit the appellant of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.