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2013 DIGILAW 118 (JHR)

Mathura Hembrom v. State of Bihar (Now Jharkhand)

2013-01-22

D.N.PATEL, SHREE CHANDRASHEKHAR

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JUDGMENT D.N. Patel, J. The present appeal has been preferred against the judgment and order passed by 4th Additional Session Judge, Singhbhum West at Chaibasa dated 10/11, January, 1996 in Sessions trial No. 612 of 1990 whereby the present appellants have been punished for rigorous imprisonment of 10 years for the offence punishable under Section 376(2)(g) of Indian Penal Code and a final of Rs.2000/- to each of the accused and in case of default further rigorous imprisonment for one year has been inflicted upon them. 2. It is the case of the prosecution that on 26th of July, 1989 at about 6 p.m. the informant Kumari Nuni Guge (PW 2) gave her statement to the Police that on 6th June, 1989 when the informant was returning to her village from Mangla Haat, Chaibasa along with her aunt Gobna Gwalin, Koita Gwalin (PW 1) and Maito Gwalin and when they reached at village a Hotobasa at about 7 p.m. in the evening the accused Manjura Hembrom, (appellant No. 2), Rajesh Hembrom, Ankura Hembrom and Mathura Hembrom (appellant No. 1) came there and they forcibly took the informant at Nakabasa football ground which is a lonely place. Thereafter two accused persons closed her mouth by putting handkerchief in mouth and the accused had committed rape upon her one by one. Initially present appellant No. 2 had committed rape. Thereafter the accused had ran away. It is further stated by her that the accused persons were corning to her village with lethal weapon since before and she identified them before occurrence. It is also stated by her that due to social dignity and also keeping in mind that if she will disclose this offence there may be some trouble in future of her marriage and therefore there is a delay in lodging the F.I.R. It is also stated by her that accused persons had threatened her that if she will disclose the offence to anybody the entire family of the informant will be killed. Therefore there was delay in lodging the F.I.R. It has also been stated by her that after returning to her house she had disclosed the fact of rape committed by accused to the inmates of her family. Therefore there was delay in lodging the F.I.R. It has also been stated by her that after returning to her house she had disclosed the fact of rape committed by accused to the inmates of her family. The offence was investigated statements of the witnesses were recorded charge-sheet was filed and the case was committed to the Court of Sessions being Sessions trial No. 612 of 1990 and upon recording evidence of the witnesses, the learned trial court has convicted and punished the appellants accused for the offence punishable under Section 376(2)(g) of the Indian Penal Code for rigorous imprisonment for ten years and a fine of Rs.2000/- to each of the accused was also imposed and in case of default of payment further rigorous imprisonment for one year was directed to be imposed by the learned Trial Court. Against this order of conviction and sentence passed by the learned Trial Court the present appeal has been preferred. 3. We have heard the learned counsel appearing for the appellants who has submitted that the prosecution has failed to prove the offence committed by the appellants beyond all reasonable doubts. It is also submitted by the counsel for the appellants that looking to the deposition of the prosecution witnesses there is no corroboration by medical evidence because the doctor has not been examined in the present case. It is also submitted by the counsel for the appellants that looking to the deposition of PW 2 Prosecutrix there is gross delay in filing of the First Information Report. The date of incident is 6th June, 1989 whereas the First Information Report was lodged on 26th July 1989. These aspects of the matter have not been properly appreciated by the learned trial Court and hence, judgment and order of convict ion and sentence passed by the learned trial Court deserves to be quashed and set aside. 4. We have heard the learned A.P.P who has submitted that the learned trial Court has properly appreciated the deposition given by the prosecutrix who is PW 2. 4. We have heard the learned A.P.P who has submitted that the learned trial Court has properly appreciated the deposition given by the prosecutrix who is PW 2. She has categorically stated that when she was coming with other witnesses from Mangla Haat, Chaibasa to her village and when she reached Dungri of village Hotobasa at about 7 p.m. on 06.06.1989 the present two appellants and other co-accused came and they forcibly took the prosecutrix at Nakabasa Football ground which is a lonely place where the appellant No. 2 first has committed rape upon her and thereafter the other co-accused including the present appellant No. 1 have committed rape one by one. Looking to her cross-examination it is submitted by learned A.P.P. that her deposition given examination-in-chief remained intact as it is. She has also given reasons for delay in lodging of the F.I.R. because she was administered threat by the accused. There was a delay in filing of the F.I.R. and due to social dignity also she had thought that if this offence will be disclosed it may create some difficulty in her marriage. It is submitted by learned A.P.P. that there is no reason to disbelieve the evidence of the prosecutrix. Her version gets further corroboration by the deposition of PW 1, PW 3 and PW 4. It is also submitted by learned A.P.P. that about these two appellants he has inquired from the Jail Authority as to their involvement in other cases and he has been informed by the Jail Authority that both these appellants are involved in more than half dozen of offences separately. Thus, no error has been committed by the learned trial Court in appreciating the evidences given by the prosecution witnesses while convicting and punishing these appellants. The learned A.P.P. further submitted in paragraph No. 9 of the deposition of PW 2 prosecutrix she has stated that there was grass at the ground where she was forcibly taken by these accused. She has also stated in paragraph 24 in her deposition as PW 2 that there are several offences registered against these accused. No error has been committed by the learned trial Court in punishing and convicting these accused for the offence punishable under Section 376(2)(g) of the Indian Penal Code and hence the appeal may not be entertained by the Court. 5. No error has been committed by the learned trial Court in punishing and convicting these accused for the offence punishable under Section 376(2)(g) of the Indian Penal Code and hence the appeal may not be entertained by the Court. 5. Having heard both the sides and looking to the evidence on record it appears that on 6.6.1989 at about 7 p.m. when the prosecutrix (PW 2) was coming from Mangla Haat, Chaibasa towards her village along with other prosecution witnesses and when she reached nearby Dungri of village Hotabasa at about 7 p.m. in the evening hours the present two appellants along with other accused came there and they forcibly tool, the prosecutrix at Nakabasa football ground which is a lonely place, where Manjura Hembram (appellant No.2) committed firstly rape upon the prosecutrix' and thereafter rest of accused persons including appellant No. 1 committed rape one by one and her mouth was closed by the accused, therefore she could not raise alarm but this incident was immediately conveyed by her to the inmates of her family. She has also explained the delay in loading the F.I.R. because of fear of trouble in her marriage and also because of the fact that the accused were coming at her village with lethal weapon and they were administering throats to her that if she will disclose the offence, the entire family of the informant will be killed. This is the statement given by prosceutrix to the police on 26th of July, 1989. Thus the deposition of PW 2 who is prosecutrix is to be seen closely. 6. We have perused the deposition of PW 2 who has clearly stated the whole incident in her own language without any major omission, contradiction or improvement. She has stated in her deposition about the facts which have been stated in the First Information Report that one by one the rape was committed by the accused. The delay in filing the First Information Report has also been explained that these appellants were coming with a lethal weapons at her village and they were giving threats to the prosecutrix and she was also worrying about her marriage if the offence is disclosed and therefore there is delay in lodging the First Information Report. 7. We have also perused the cross-examination in detail and looking to her cross-examination also nothing is coming out in favour of these appellants-accused. 7. We have also perused the cross-examination in detail and looking to her cross-examination also nothing is coming out in favour of these appellants-accused. On the contrary she has started in paragraph 19 of her deposition that there was grass at the ground where she was taken forcefully where the rape was committed by the accused and there are several offences registered against the accused No. 2 as staled in Paragraph No. 24 of her deposition. Moreover, she has also stated in her deposition that after committing rape the accused persons took her to nearby Talab where her clothes were washed and therefore there is no bloodstain when she was examined by doctor. This aspect of the matter has been properly taken care of in paragraph 16 of the Trial Courts judgment that non-examination of the Medical Officer or non-production of medical report is not fatal to the prosecution case. Thus the delay in lodging the First Information Report has also properly been explained by the prosecutrix. Looking to other deposition given by PW 2 Prosecutrix, we see no reason to disbelieve her. She is a trustworthy and reliable witness. There is no major omission, contradiction or improvement in her deposition. This aspect of the matter has been properly appreciated by the learned Trial Court while convicting the present appellants for the offence punishable under Section 376(2)(g) of Indian Penal Code. 8. Looking to the deposition given by PW 1 she has clearly stated that Manjura Hembrom (appellant No. 2) and Ankura (Mathura Hembrom) who is appellant No. 1 had forcibly taken prosecutrix to the football ground and she has stated in her deposition before the learned trial Court that these appellants had committed rape upon her. It is also stated by PW 1 that she was also returning with prosecutrix at her village and at nearby Hotobasa, the whole incident has taken place. Looking to her cross-examination, her examination-in-chief remained intact as it is. There is no major omission, contradiction, improvement or exaggeration in her deposition. Similar is the deposition given by PW 3. Both these witnesses PW 1 and PW 3 have corroborated the deposition of PW 2 about the place of scene of offence, date of occurrence, time of occurrence and names of accused and role played by them. There is no major omission, contradiction, improvement or exaggeration in her deposition. Similar is the deposition given by PW 3. Both these witnesses PW 1 and PW 3 have corroborated the deposition of PW 2 about the place of scene of offence, date of occurrence, time of occurrence and names of accused and role played by them. They have named the appellants-accused and they have also stated that these appellants along with other co-accused had taken the prosecutrix forcibly to Nakabasa football ground where they committed rape upon her. Thus the deposition of prosecutrix PW 2 is getting enough corroboration by deposition of PW 1 and PW 3. This aspect of the matter has also been properly appreciated by the learned trial Court. 9. Looking to the deposition of PW 4 he has proved his signature and signature of Chandra Mohan on the statement made by prosecutrix before the police and they are marked as Ext. 1 and 1/A. 10. Learned counsel appearing for the appellants had vehemently submitted that there is gross delay in lodging the F.I.R and therefore the whole story of the prosecution is concocted. We are not in agreement with this contention. Looking to the facts narrated by the prosecutrix in her First Information Report and also in her deposition as PW 2 she has clearly stated that there are several cases registered against the appellant No. 2. These appellants were coming with lethal weapon at her village. They were administering threats to the prosecutrix that if she will disclose the offence of rape her whole family will be killed. This is a major reason for delay-in-lodging the First Information Report. Moreover she has stated before the trial Court that she was worrying about her marriage in future if the offence of rape is disclosed by her. It has been held by the Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat. 1983 Crl. LJ 1096 in paragraphs 7, 8, 9, 10 and 11 as under :- "7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. 1983 Crl. LJ 1096 in paragraphs 7, 8, 9, 10 and 11 as under :- "7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court in Rameshwar v. State of Rajasthan, (1952) 3 SCR 377 at p.386 : ( AIR 1952 SC 54 at p.57), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed across the time-gap of three decades which have whistled past in the inimitable voice of Vivian Vose, J. who spoke for the Court.- "The rule which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence except where the circumstances make it safe to dispense with it must be present to the mind of the Judge. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must in every case be corroboration before a conviction can be allowed to stand." 8. And whilst the sands were running out in the time-glass the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate re-scanning of the jurisprudential sky through the lenses of "logos" and "ethos" has been necessitated. 9. In the Indian Setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of raps or sexual molestation be viewed with the aid of spectacles fitted with tenses tinged with doubt disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu its own social mores its own permissive values and its own code of life. Corroboration may be considered essential in establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as: - (1) The female may be a "gold digger" and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure. (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted, and chased by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self importance in the context of her inferiority complex. (6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self importance in the context of her inferiority complex. (6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed. 10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in Indian make false allegations of sexual assault on account of any factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, rc1atives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court to face, the cross-examination by counsel for the culprit and the risk of being disbelieved acts as a deterrent. 11. In vies of these factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) 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-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial handover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities fact or" does not render it unworthy of credence. We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities fact or" does not render it unworthy of credence. as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the probabilities factor is found to be out of tune." (Emphasis supplied) 11. In the light of aforesaid deposition if the prosecutrix is trustworthy and reliable witness and if her deposition is getting further corroboration by the other witnesses, the offence can be proved by the prosecution. In the facts of the present case, as stated herein above PW 2 prosecutrix has clearly narrated the whole incident in First Information Report as well as in her deposition before the trial Court and there are no major omission, contradiction or improvement in deposition. Her deposition is getting further corroboration by the deposition given by the PW 1 and PW 3, who were present with the prosecutrix and both the witnesses were returning with prosecutrix from Mangla Haat to their village and the incident has taken place nearby Dungri of village Hotabasa at about. 7 p.m. 12. It has been held by the Hon'ble Supreme Court in the case of Sheikh Zakir v. State of Bihar, as reported in AIR 1983 SC 911 in paragraph No.8, which reads as under:- "8. In so far as non-production of a medical examination report and the clothes which contained semen, the trial Court has observed that the complainant being a woman who had given birth to four children it was likely that there would not have been any injures on her private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable. It is, how every nobody's case that there was such a report and it had been withheld." [Emphasis supplied] 13. In view of the aforesaid fact that the prosecutrix is a member of socially marginalized persons and when she is alleging an offence of rape, non production of medical report is of not much consequence, if other evidences arc believable. In the facts of the present case as stated herein above, PW 2 prosecutrix has narrated the whole incident in detail and her deposition is get ling enough corroboration by the depositions of PW 1 and PW 3. Moreover, it has been stated by PW 2 that the accused had taken her to nearby Talab where occurrence had taken place and her bloodstained clothes were washed out and blood was removed from her clothes and private part and therefore though she was examined by the Medical Officer later on, non production of medical report before the learned Court is not fatal to the case of prosecution. This aspect of the matter has been properly appreciated by the learned Trial Court and no error has been committed by the learned trial Court while convicting and punishing tile present appellants for the offence punishable under Section 376(2)(g) of the Indian Penal Code for Rigorous Imprisonment for 10 years which is minimum sentence provided under subsection (g) of sub-section (2) or Section 376 of Indian penal Code. 14. The bail bonds of both the appellants are hereby cancelled. They are directed to surrender to judicial custody immediately. Respondent-State is directed to arrest for serving rest of the sentence. 15. 14. The bail bonds of both the appellants are hereby cancelled. They are directed to surrender to judicial custody immediately. Respondent-State is directed to arrest for serving rest of the sentence. 15. Thus we hereby uphold the decision rendered by the learned trial Court in Sessions trial No. 612 of 1990 dated 10/11th of January, 1996 as there is no merit in this Criminal Appeal which is hereby dismissed. Appeal dismissed.