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2013 DIGILAW 8 (CHH)

JAGANU SAHU v. STATE OF C. G.

2013-01-03

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 27-9-2002 passed by Additional Sessions Judge, Mungeli, District Bilaspur in Sessions Trial No. 104/2001. By the impugned judgment, accused/appellant Jaganu Sahu has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 376(1) IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/-, in default of payment of fine, to undergo simple imprisonment for 6 months. Under Section 506-B IPC Rigorous imprisonment for 1 year and to pay fine of Rs. 500/-, in default of payment of fine, to undergo simple imprisonment for 1½ month. 2. Case of the prosecution, in brief, is as under: On 11-2-2001, at about 10:00 AM, prosecutrix (PW-1) had gone to forest for collecting wood along with her friends Kalyani Bai (PW-4) and Rukhmani Bai (PW-5). When she was collecting the wood, appellant Jaganu Sahu came there behind prosecutrix (PW-1) and caught her. When she tried to shout, the appellant gagged her mouth with Lungi, caused her to fall down and committed forcible sexual intercourse with her. Having heard her shout, her both friends Kalyani Bai (PW-4) and Rukhmani Bai (PW-5) came there. They witnessed the appellant committing rape on the prosecutrix (PW-l). Having seen them, the appellant fled from there. The appellant threatened the prosecutrix (PW-1), Kalyani Bai (PW-4) and Rukhmani Bai (PW-5) that if they will narrate the incident to anyone, then he will kill them. Prosecutrix (PW-1) narrated the incident to her mother. At that time, her father Bahadur @ Baba Yadav (PW-3) was not present at home. Bahadur @ Baba Yadav (PW-3) came back home at about 4:00 PM. Then, prosecutrix (PW-1) narrated the incident to him also. Prosecutrix (PW-1) lodged First Information Report (Ex.P-1) in Police Station Kunda. Prosecutrix (PW-1) was sent to District (Government) Hospital, Kawardha for medical examination vide Ex.P-7. Dr. Smt. Aparna Bakharu (PW-7) examined prosecutrix (PW-1) and gave her report (Ex.P-8). Two slides of vaginal swab of prosecutrix (PW-1) were prepared. Petticoat of prosecutrix (PW-1) and slides of vaginal swab were seized vide Ex.P-2. The appellant was also sent to Community Health Centre, Kunda for medical examination vide Ex.P-3. Dr. P.L. Kurre (PW-6) examined the appellant and gave his report (Ex.P-4), in which, he found that the appellant could perform the act of sexual intercourse. Petticoat of prosecutrix (PW-1) and slides of vaginal swab were seized vide Ex.P-2. The appellant was also sent to Community Health Centre, Kunda for medical examination vide Ex.P-3. Dr. P.L. Kurre (PW-6) examined the appellant and gave his report (Ex.P-4), in which, he found that the appellant could perform the act of sexual intercourse. In further investigation, spot maps (Ex.P-16 and P-18) were prepared. Underwear of the appellant was also seized vide Ex.P-14. Seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-17. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Mungeli, who, in turn, committed the case to the Court of Session, Bilaspur, from where it was received on transfer by Additional Sessions Judge, Mungeli, District Bilaspur, who, conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri R.K. Sharma, learned counsel for the appellant, argued that the FIR was lodged belatedly. In absence of proper explanation therefor, the prosecution story becomes doubtful. He further argued that the evidence of prosecutrix (PW-1) is full of contradictions. The case of the prosecution is highly improbable. It is impossible for anyone to commit forcible sexual intercourse in presence of other women. On close scrutiny of the evidence available on record, possibility of prosecutrix (PW-1) having being consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable. 4. On the other hand, 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 record of Sessions Trial No. 104/2001. The conviction of the appellant is based on the testimonies of prosecutrix (PW-1), Kalyani Bai (PW-4) and Rukhmani Bai (PW-5) and medical evidence. 6. Now, I shall first deal with question of delay in lodging the FIR. 7. Prosecutrix (PW-1) deposed that on the date of incident, she had gone for collecting the wood along with her friends Kalyani Bai (PW-4) and Rukhmani Bai (PW-5). When she was collecting the wood, the appellant came there behind her, caught her and caused her to fall down. When she tried to shout, the appellant gagged her mouth with Lungi and committed forcible sexual intercourse with her. When she was collecting the wood, the appellant came there behind her, caught her and caused her to fall down. When she tried to shout, the appellant gagged her mouth with Lungi and committed forcible sexual intercourse with her. She raised alarm. Having heard her noise, Kalyani Bai (PW-4) and Rukhmani Bai (PW-5) reached the place of occurrence. Having seen them, the appellant fled from there. She further deposed that she narrated the incident to her mother. At that time, her father Bahadur @ Baba Yadav (PW-3) was not present at home. He came back home at about 4:00 PM. Then, she narrated the incident to him. Bahadur @ Baba Yadav (PW-3) deposed that he reached his home at about 4:00 PM. Then prosecutrix (PW-1) narrated the incident to him. Then he went to the Village Kotwar Shyamdas (PW-2) and narrated the incident to him. He told Shyamdas (PW-2) that the appellant committed rape with his daughter (prosecutrix) and also he narrated the incident to 2-3 other villagers. He further deposed that he took his father from Village Baihasiri and thereafter prosecutrix (PW-1) lodged report in Police Station, Kunda. Prosecutrix (PW-1) deposed that she went to Police Station Kunda along with her material uncle Ishwar, Village Kotwar Shyamdas and her father Bahadur @ Baba Yadav and lodged the FIR (Ex.P-1). 8. Shyamdas (PW-2) deposed that Bahadur @ Baba Yadav (PW-3) came to his house and narrated him the incident. Then Bahadur @ Baba Yadav (PW-3) went to Baihasiri and took his father. Thereafter prosecutrix (PW-1) lodged the FIR (Ex.P-1) in Police Station Kunda. 9. ASI A.R. Sahu (PW-8) deposed that appellant threatened prosecutrix (PW-1) to kill her, therefore, prosecutrix (PW-1) did not lodge the FIR immediately. 10. 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. 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. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or 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." 11. 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." 12. In State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384 , the Hon'ble Supreme Court held thus: “8. ............. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. .........” 13. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. .........” 13. Mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. In the instant case, when Bahadur @ Baba Yadav (PW-3, father of prosecutrix) returned home, then prosecutrix (PW-1) narrated the incident to him. Bahadur @ Baba Yadav (PW-3) went to Village Kotwar Shyamdas. Thereafter, he went to his Village Baihasiri and took his father. Thereafter, the FIR (Ex.P-1) was lodged in Police Station Kunda. Therefore, the explanation offered by the prosecution for delay in lodging the FIR (Ex.P-1) is plausible and reliable and the delay in lodging the FIR (Ex.P-1) is not fatal to the case of the prosecution. 14. Now, I shall examine whether the statement of prosecutrix (PW-1) is sufficient to convict the appellant? 15. Prosecutrix (PW-1) deposed that at about 10:00 AM, she had gone for collecting the wood along with her friends Kalyani Bai (PW-4) and Rukhmani Bai (PW-5). She was collecting the wood. At that time, the appellant came there behind her, caught her and caused her to fall down. When she tried to shout, the appellant gagged her mouth with Lungi and slept over her and committed sexual intercourse with her. Having heard her noise, her both friends Kalyani Bai (PW-4) and Rukhmani Bai (PW-5) came there. They witnessed the appellant committing rape on prosecutrix (PW-1). Having seen them, the appellant fled from there. The appellant threatened them that if they will narrate the incident to anyone, he will kill them. Evidence of Prosecutrix : 16. 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 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. (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). (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." 17. 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 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 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. 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: (SCC p. 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. 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 does 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 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. ...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. 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 for 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 ." 18. Prosecutrix (PW-1) deposed that at about 10:00 AM, she had gone for collecting the wood along with her friends Kalyani Bai (PW-4) and Rukhmini Bai (PW-5). When she was collecting the wood, the appellant came there and caught her. The appellant caused her to fall down and when she tried to raise alarm, the appellant gagged her mouth with Lungi, slept over her and committed forcible sexual intercourse with her. 19. Kalyani Bai (PW-4) deposed that on the date of incident, she had gone for collecting the wood along with the prosecutrix (PW-1) and Rukhmini Bai (PW-5). At that time, the appellant came there, caught the prosecutrix (PW-1), caused her to fall down and committed sexual intercourse with her. She further deposed that the prosecutrix (PW-1) raised alarm. She witnessed the incident that the appellant slept over the prosecutrix (PW -1) and committed sexual intercourse with her. Rukhmini Bai (PW-5) also deposed in similar fashion. 20. Prosecutrix (PW-1) deposed that she was sent for medical examination. Dr. She further deposed that the prosecutrix (PW-1) raised alarm. She witnessed the incident that the appellant slept over the prosecutrix (PW -1) and committed sexual intercourse with her. Rukhmini Bai (PW-5) also deposed in similar fashion. 20. Prosecutrix (PW-1) deposed that she was sent for medical examination. Dr. Smt. Aparna Bakharu (PW-7) examined prosecutrix (PW-1) and gave her report (Ex.P-8), in which she found superficial abrasion on right knee and abrasion on 5 linear superficial abrasion over the inner part of right shoulder, 5X4X3cm. She further deposed that the injuries sustained by the prosecutrix (PW-1) were caused within 3 to 5 days. 21. On examining the instant case in its entirety, I find that the evidence of prosecutrix (PW-1) is cogent, convincing, reliable and trustworthy and is corroborated by the evidence of Kalyani Bai (PW-4) and Rukhmini Bai (PW-5) and medical evidence too. The trial Court has rightly accepted the evidence of the prosecutrix (PW-1) and convicted the appellant. The finding of conviction of the appellant under Sections 376(1) and 506-B IPC does not call for any interference by this Court. 22. Accordingly, the appeal, being without substance, is liable to be and is hereby dismissed. The appellant shall surrender before the trial Court forthwith to serve remaining part of jail sentence, if any. Appeal Dismissed.