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2013 DIGILAW 23 (CHH)

AJMER SINGH v. STATE OF C. G.

2013-01-10

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 8-4-2004 passed by Sessions Judge. Bilaspur in Sessions Trial No. 176/2003. By the impugned judgment, accused/appellant Ajmer Singh has been convicted and sentenced in the following manner : Conviction Sentence Under Section 376 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year 2. Case of the prosecution, in brief, is as under: On 14-1-2003, prosecutrix (PW-1) was alone at her house. Her husband Santosh Das (PW-4) had gone to school for doing labour work, her mother-in-law Chamrinbai (PW-5) had gone to Village Chhura Kachhar and her Nanad (sister-in-low) Nirabai had gone to school for study. At about 12 Noon, the appellant came to the house of prosecutrix (PW-1) and asked her about how many family members were present in the house. She answered that she was alone at the house. At that time, prosecutrix (PW-1) was sweeping. The appellant caught her hand, dragged her, caused her to fall down on the cot, threatened her of life pressed her neck, assaulted on her head with fist, removed her underwear forcibly and committed sexual intercourse with her. Her husband Santosh Das (PW-4) returned home at about 5 P.M. She narrated him the incident. Santosh Das (PW-4) asked the appellant why did he commit rape with his wife prosecutrix (PW-1)? On this, the appellant committed Marpeet with Santosh Das (PW-4). Prosecutrix (PW-1) lodged First Information Report (Ex.P-1) in Police Station Bankimongara. Prosecutrix (PW-1) was sent to District Hospital, Korba for medical examination vide Ex.P-11. Dr. S. Shrivastava (PW-10) examined prosecutrix (PW-1) and gave her report (Ex.P-18), in which, she found abrasions on face, nose and right side of neck and tenderness around the abrasions. She also prepared two slides of vaginal swab of prosecutrix (PW-1). The slides were sealed and handed over to Constable for chemical examination. The appellant was also sent to Primary Health Centre, Bankimongara for medical examination vide Ex.P-8. Dr. R.S. Kanwar (PW-3) examined the appellant and gave his report (Ex.P-8A), in which, he found one abrasion, 1/2"x1/8", semi-circular, below the right eye and another abrasion, 1/2"x1/8" on the right side of neck. He opined that the appellant was capable of committing sexual intercourse. Santosh Das (PW-4) was also sent to PHC, Bankimongara for medical examination. Dr. Dr. R.S. Kanwar (PW-3) examined the appellant and gave his report (Ex.P-8A), in which, he found one abrasion, 1/2"x1/8", semi-circular, below the right eye and another abrasion, 1/2"x1/8" on the right side of neck. He opined that the appellant was capable of committing sexual intercourse. Santosh Das (PW-4) was also sent to PHC, Bankimongara for medical examination. Dr. R.S. Kanwar (PW-3) examined Santosh Das (PW-4) and gave his report (Ex.P-9A), in which, he found one abrasion, ½" x ½" on back of the shoulder. In further investigation, spot-maps (Ex.P-5 and P-17) were prepared. Saree, petticoat, blouse and underwear of prosecutrix (PW-1) were seized from her vide Ex.P-4. Pant and underwear of the appellant were seized from him vide Ex.P-7. Vaginal slides of prosecutrix (PW-1) were also seized vide Ex.P-12. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-14. Report (Ex.P-15) was received therefrom. In Ex.P-15, it is mentioned that article A4 - underwear of prosecutrix (PW-1) and article B - slide of vaginal swab of prosecutrix (PW-1) were smeared with human spermatozoa. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Katghora, who, in turn, committed the case to the Court of Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Y.C. Sharma and Shri Pushkar Sinha, learned counsel for the appellant argued that the appellant has been falsely implicated by prosecutrix (PW-1) and her husband Santosh Das (PW-4). He further argued that the evidence of prosecutrix (PW-1) is not trustworthy. Her testimony is full of contradictions. Therefore, it is not safe to rely upon her evidence. Hence, the appellant deserves acquittal. 4. On the other hand, Shri Vinay Harit, learned Deputy Advocate General and Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant 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. 176/2003. 6. The conviction of the appellant is based on the evidence of prosecutrix (PW-1), Santosh Das (PW-4) and medical evidence. 7. Prosecutrix (PW-1) deposed that on the date of incident, she was alone at her house. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 176/2003. 6. The conviction of the appellant is based on the evidence of prosecutrix (PW-1), Santosh Das (PW-4) and medical evidence. 7. Prosecutrix (PW-1) deposed that on the date of incident, she was alone at her house. Her husband Santosh Das (PW-4) had gone to school for doing labour work, her mother-in-law Chamrinbai (PW-5) had gone to Village Chhura Kachhar and her Nanad (sister-in-law) Nirabai had gone to school for study. At about 12 Noon, the appellant came her house and asked her about how many family members were present in the house. She answered that she was alone at the house. At that time, she was sweeping. The appellant caught her hand, dragged her, caused her to fall down on the cot of her mother-in-law, pressed her neck and gagged her mouth. When she tried to get up, the appellant again caused her to fall down. The appellant lifted her saree up and committed sexual intercourse with her. She further deposed that at about 5 P.M., her husband Santosh Das (PW-4) returned home. She narrated him the incident. Santosh Das (PW-4) asked the appellant why did he commit rape with his wife prosecutrix (PW-1)? On this, the appellant committed Marpeet with Santosh Das (PW-4). 8. Santosh Das (PW-4) deposed that he had gone to school for doing labour work. When he returned home at about 5 P.M., his wife prosecutrix (PW-1) narrated him the incident. He went to the appellant and asked him why did he commit rape with his wife prosecutrix (PW-1)? On this, the appellant committed Marpeet with him. Chamrinbai (PW-5) also deposed that when she returned home, prosecutrix (PW-1) narrated the incident to her. Dukhidas (PW-6) also deposed in similar fashion. 9. Now, I shall examine whether the evidence of prosecutrix (PW-1) is trustworthy and reliable and can be based for conviction? 10. In Mohd. Imran Khan Vs. State (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 persons lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. 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 persons 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. 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. 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. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee v. State of M.P., (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." 11. In the instant case, in cross-examination, prosecutrix (PW-1) deposed that the appellant had, before the incident, enquired from her about presence of her family members at the house and thereafter the appellant caught her hand, dragged her and caused her to fall down on the cot of her mother-in-law. She further deposed that the appellant gagged her mouth and assaulted her. The appellant assaulted on her head and cheek and pressed her neck. She sustained injuries on her back, waist and head. The appellant had caught her hand and when she tried to shout, he gagged her mouth. 12. In cross-examination, in paragraph 14, prosecutrix (PW-1) deposed that on being caused her to fall down, she had sustained injuries on leg, hand, back and neck. Prosecutrix (PW-1) deposed that she lodged the FIR (Ex.P-1) in Police Station Bankimongara and she was sent for medical examination. Dr. S. Shrivastava (PW-10) deposed that on 16-1-2003, at about 12:30 P.M., she examined prosecutrix (PW-1) and gave her report (Ex.P-18), in which, she found multiple bruises and abrasions on face, nose and right knee and also a linear abrasion over right side of neck. Tenderness was present around the abrasions. 13. Sub-Inspector Arjun Kumar Singh (PW-7) and prosecutrix (PW-1) deposed that Arjun Kumar Singh (PW-7) seized saree, petticoat, blouse and underwear of prosecutrix (PW-1). Arjun Kumar Singh (PW-7) deposed that he had sent those seized articles to hospital for examination. Dr. Tenderness was present around the abrasions. 13. Sub-Inspector Arjun Kumar Singh (PW-7) and prosecutrix (PW-1) deposed that Arjun Kumar Singh (PW-7) seized saree, petticoat, blouse and underwear of prosecutrix (PW-1). Arjun Kumar Singh (PW-7) deposed that he had sent those seized articles to hospital for examination. Dr. S. Shrivastava (PW-10) deposed that she had examined saree, petticoat and underwear and given her report (Ex.P-19). She had found that border of the saree was torn and white stains were present at 5-6 places of the petticoat. 14. Arjun Kumar Singh (PW-7) deposed that he had also sent the appellant for medical examination. Dr. R.S. Kanwar (PW-3) deposed that he had examined the appellant and given his report (Ex.P-8A), in which, he had found one abrasion, l/2"x1/8", semi-circular, below the right eye and another abrasion, 1/2"x1/8" on the right side of neck and opined that the appellant was capable of committing sexual intercourse. He further deposed that he had examined Santosh Das (PW-4) and given his report (Ex.P-9A), in which, he had found one abrasion, 1/2"x1/2" on back of the shoulder. 15. Arjun Kumar Singh (PW-7) deposed that the seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-14 and report (Ex. P-15) was received therefrom. In Ex.P-15, article A4 - underwear of prosecutrix (PW-1) and article B - slide of vaginal swab of prosecutrix (PW-1) were found stained with human spermatozoa. Prosecutrix (PW-1) specifically deposed that after the incident and before her medical examination, no sexual intercourse was done with her. 16. In the instant case, the appellant took the plea of total denial. In Section 313 Cr.P.C., when questions No. 5 to 7 were put to the appellant, he simply answered that it was wrong. A question was put to him as to whether he wished to say anything in his defence, he replied that prosecutrix (PW-1) had illicit relationship with some other boy and she had falsely implicated him in the case, but, the appellant did not explain how was he falsely implicated in the case by prosecutrix (PW-1) or her husband? Prosecutrix (PW-1) is a married woman. It is a matter of common law that in Indian society any girl or woman would not make such allegation against a person as she is fully aware of the repercussion following therefrom. Prosecutrix (PW-1) is a married woman. It is a matter of common law that in Indian society any girl or woman would not make such allegation against a person as she is fully aware of the repercussion following therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. It is difficult to accept the contention of the appellant that prosecutrix (PW-1) had illicit relationship with some other boy, therefore, he was falsely implicated in the case. Therefore, there is no substance in the contention of the appellant that he has been falsely implicated in the case. 17. The evidence of prosecutrix (PW-1) is duly corroborated by the medical evidence and also by the FSL Report. In the medical evidence, injuries were found on the body of prosecutrix (PW-1) and also on the body of the appellant. In the FSL Report (Ex.P-15), underwear and slides of vaginal swab of prosecutrix (PW-1) were found stained with human spermatozoa. 18. Thus, in view of the aforesaid discussion, it is clear that while prosecutrix (PW-1) was sweeping her house, the appellant came to her, caught her hand, caused her to fall down and committed sexual intercourse with her against her will. The evidence of prosecutrix (PW-1) is corroborated by the medical evidence, the FSL. Report (Ex.P-15) and the evidence of other prosecution witnesses also. The testimony of prosecutrix (PW-1) is trustworthy and reliable, inspires confidence and can be based for conviction. 19. Thus, the finding recorded by the learned Sessions Judge convicting the appellant under Section 376 IPC is based on due appreciation of the evidence available on record. Therefore, the impugned judgment does not suffer from any illegality or infirmity. 20. In the result, the appeal, being without substance, is liable to be and is hereby dismissed. The appellant is on bail. His bail bonds are cancelled and sureties stand discharged. He shall immediately surrender before the trial Court to serve remaining sentence of imprisonment, if any. Appeal Dismissed.