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2013 DIGILAW 268 (CHH)

TORAN JALCHHATRI v. STATE OF C. G.

2013-09-09

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

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JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :– 1. This appeal is directed against judgment dated 30-4-2007 passed by 14th Additional Sessions Judge (FTC), Raipur in Sessions Trial No. 19/2007. By the impugned judgment, accused/appellant Toran Jalchhatri has been convicted and sentenced in the following manner with a direction to run the sentences concurrently :– Conviction Sentence Under Section 354 IPC Rigorous imprisonment for 2 years, Under Section 376/511 IPC Rigorous imprisonment for 5 years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months, Under Section 377 IPC Imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. The case of the prosecution, in brief, is as under : Prosecutrix (PW-1) is the daughter of the appellant and Jhaminbai (PW-2) is wife of the appellant and mother of prosecutrix (PW-1). Prosecutrix (PW-1) was aged about 9 years on the date of incident. On 03-12-2006, at about 9.00 pm, the appellant went out of his house along with prosecutrix (PW-1) to bring clothes. The appellant took prosecutrix (PW-1) to a temple. The appellant switched off the light and put his penis in the mouth of prosecutrix (PW-1) and asked her to suck it. Prosecutrix (PW-1) sucked the same of the appellant. Thereafter, the appellant removed the clothes of prosecutrix (PW-1) and laid over her and tried to penetrate his copulation into vagina of the prosecutrix (PW-1). Prosecutrix (PW-1) cried due to pain. Thereafter, the appellant stood up and came back to their house along with prosecutrix (PW-1). In the next night, the appellant again kissed prosecutrix (PW-1). On the next morning, prosecutrix (PW-1) narrated the incident to her mother jhaminbai (PW-2). Jhaminbai (PW-2) lodged a report in Mahila Police Station, Raipur which was registered as First Information Report No.58/06 (Ex.-P/1) for offence under Sections 377, 376, 511 IPC against the appellant. The prosecutrix (PW-1) was sent to Doctor Ambedkar Hospital, Raipur for medical examination. Doctor Kiran Agrawal (PW-6) examined her and gave her report (Ex.-P/8) finding that the age of the prosecutrix (PW-1) was near about 9 years. The appellant was also sent to Doctor Ambedkar Hospital, Raipur for medical examination and Doctor Sunil Gupta (PW-5) examined him and gave his report (Ex.-P17) finding that the appellant was capable of committing sexual intercourse. Doctor Kiran Agrawal (PW-6) examined her and gave her report (Ex.-P/8) finding that the age of the prosecutrix (PW-1) was near about 9 years. The appellant was also sent to Doctor Ambedkar Hospital, Raipur for medical examination and Doctor Sunil Gupta (PW-5) examined him and gave his report (Ex.-P17) finding that the appellant was capable of committing sexual intercourse. In further investigation, spot map (Ex.-P/5) was prepared. The appellant was arrested vide Ex.-P/6. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by 14th Additional Sessions Judge (FTC), Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. In support of its case, the prosecution examined prosecutrix (PW-1), Jhaminbai (PW-2), Inspector Sandhya Dwivedi (PW-3), Leelawati Mishra (PW-4), Doctor Sunil Gupta (PW-5), Doctor Kiran Agrawal (PW-6). The appellant did not examine any witness in his defence. 4. Shri Vineet Kumar Pandey, learned counsel for the appellant argued that the finding of conviction arrived at against the appellant cannot be sustained in law as there is only corroboration by testimony of prosecutrix (PW-1). The appellant has been convicted for the offence under Section 377 of the IPC on account of his only act of putting his penis in the mouth of prosecutrix (PW-1). There was no any carnal intercourse. Therefore, the conviction under Section 377 IPC cannot be sustained. The evidence of prosecutrix (PW-1) is not reliable. The prosecution story is highly improbable. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 5. On the other hand, Shri U.N.S. Deo, learned Additional Public Prosecutor for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not call for any interference by this Court. 6. Prosecutrix (PW-1) deposed that the appellant is her father. On the date of incident, he took her for bringing saree but saree was not available. Thereafter, the appellant took her into a temple, switched off the light, put his penis into her mouth and asked for sucking. She sucked the same. Thereafter, the appellant asked her to remove clothes. She removed her clothes. The appellant laid over her and tried to insert his penis into her vagina. Thereafter, the appellant took her into a temple, switched off the light, put his penis into her mouth and asked for sucking. She sucked the same. Thereafter, the appellant asked her to remove clothes. She removed her clothes. The appellant laid over her and tried to insert his penis into her vagina. She felt pain and started weeping, then the appellant stood up and thereafter he took prosecutrix (PW-1) to their house. She further deposed that in the next night, the appellant caught her neck and kissed her lips. On the next morning, she narrated the incident to her mother Jhaminbai (PW-2). 7. Jhaminbai (PW-2) deposed that prosecutrix (PW-1) told her that the appellant took her (prosecutrix (PW-1)) to a temple and attempted to commit rape with her. She lodged report (Ex.-P/1) in Mahila Police Station, Raipur. Evidence of Prosecutrix 8. 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 : "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. 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." 9. In Vijay alias Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191 the Hon'ble Supreme Court observed thus : "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 , this Court held 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 and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The 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 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. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. 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. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. 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." 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCCp. 597, para 12) "12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it docs not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. Evidence of the victim of sexual assault is enough for conviction and it docs not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ...Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. .... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. .... * * * 21. ... ...Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. .... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. .... * * * 21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 12. In State of Orissa, v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) 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. 13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look or any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 ." 10. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 ." 10. Now, we shall examine whether the offence under Section 377 IPC is made out against the appellant? 11. Section 377 IPC runs as under :– "377. Unnatural offences.-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation. – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." 12. In Sakshi Vs. Union of India and other (2004) 5 SCC 518 , the Hon'ble Supreme Court observed thus : "10. .......... 377 provide stringent punishment for sexual offences. The types of several offences as mentioned by the petitioner i.e. penile/ anal penetration, penile/oral penetration, finger/anal penetration, finger/ vaginal penetration or object/vaginal penetration are serious sexual offences of unnatural nature and are to be covered under Section 377.........." 13. In Lohana Vasantlal Devchand and others Vs. The State 1968 Cri.L.J. 1277, High Court of Gujarat observed thus : "9. ..... Carnal copulation, as the phrase has been used in the law relating to sodomy, means sexual intercourse, including such intercourse through the mouth. The phrase 'carnal copulation' as employed in a statute defining sodomy, must be given a meaning consistent with the entire context of the statute and does not have one meaning in connection with such copulation between human beings and a different meaning with respect to copulation between a human being and an animal" ....." "10. ..... In the instant case, there was an entry of a male penis in the orifice of the mouth of the victim. There was the enveloping of visiting member by the visited organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said without any doubt in my mind that the act in question will amount to an offence, punishable under section 377 of the Indian Penal Code." 14. In the instant case, prosecutrix (PW-1) is the daughter of the appellant, she was aged about 9 years on the date of incident and she was residing along with her parents. In the instant case, prosecutrix (PW-1) is the daughter of the appellant, she was aged about 9 years on the date of incident and she was residing along with her parents. There was no motive for prosecutrix (PW-1) to falsely implicate the appellant. The evidence of prosecutrix (PW-1) is corroborated by the evidence of her mother Jhamin Bai (PW-2). 15. In the instant case, prosecutrix (PW-1) specifically deposed that the appellant took her to a temple and switched off the light. Thereafter, he inserted his penis into her mouth. It appears that the appellant, with the knowledge, tried to commit intercourse with prosecutrix (PW-1) against the order of nature and in an unnatural manner. Therefore, the accused/appellant is guilty for the offence punishable under Section 377 IPC. 16. Prosecutrix (PW-1) deposed that the appellant removed her clothes and also removed his clothes and then laid over her and tried to insert his penis into her vagina. The appellant could not do the same due to cry and pain suffered by her. 17. In Koppula Venkat Rao Vs. State of Andhra Pradesh (2004) 3 SCC 602 , the Hon'ble Supreme Court held thus : ''10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many time throw beacon light on that aspect. 12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connections has not been established. Courts below were not correct in their view." 18. In the instant case, from the evidence of prosecutrix (PW-1), it is evident that the appellant took prosecutrix (PW-1) to the temple and switched off the light and firstly inserted his penis in the mouth of prosecutrix (PW-1). Thereafter, he asked prosecutrix (PW-1) to remove her pant. Prosecutrix (PW-1) removed her pant and the appellant also removed his pant and laid over prosecutrix (PW-1) and tried to insert his penis into her vagina, but he did not succeed due to pain suffered by prosecutrix (PW-1). This shows a determined intention on the part of the appellant to commit rape with prosecutrix (PW-1). The act performed by the appellant with clearcut, definite and determined intention to commit rape with prosecutrix (PW-1) clearly amounts to attempt of rape. 19. This shows a determined intention on the part of the appellant to commit rape with prosecutrix (PW-1). The act performed by the appellant with clearcut, definite and determined intention to commit rape with prosecutrix (PW-1) clearly amounts to attempt of rape. 19. Thus, the finding recorded by the learned Additional Sessions Judge convicting the appellant under Sections 354, 376/511 and 377 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 any substance, is liable to be and is hereby dismissed. Appeal Dismissed.