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2020 DIGILAW 181 (JHR)

Kunu Biriwala v. State of Jharkhand

2020-01-29

RATNAKER BHENGRA, S.CHANDRASHEKHAR

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JUDGMENT : S. Chandrashekhar, J. 1. The sole appellant has suffered the judgment of conviction under section 376 (2) (g), section 452 r/w section 34 of the Indian Penal Code, section 323 r/w section 34 of the Indian Penal Code dated 09.09.2013 and the order of sentence dated 13.09.2013 for the aforesaid offences in Sessions Trial No. 105 of 2009. 2. The informant of this case is the victim lady herself. On the basis of her fard-beyan which was recorded on 05.03.2008 at 14:45 hrs. at Primary Health Center, Chakulia, Chakulia P.S Case No. 13 of 2008 has been lodged against Kunu Biriwala and Chanchal Biriwala under section 376 and section 324 r/w section 34 of the Indian Penal Code. Later on, vide order dated 19.06.2008 the offence under section 376 (2) (g) of the Indian Penal Code has been added in the report. The appellant has faced the trial on the charge under section 452 r/w section 34 of the Indian Penal Code, section 323 r/w section 34 of the Indian Penal Code and section 376 (2) (g) of the Indian Penal Code; co-accused Chanchal Biriwala has absconded. 3. To prove the aforesaid charges against the appellant, the prosecution has examined 8 witnesses; the prosecutrix is P.W 6. 4. In her fard-beyan the prosecutrix has stated that on 03.03.2008 she was at home. She had gone to bed with her minor children at about 9:00 p.m. In the mid-night her neighbours, namely, Kunu Biriwala and Chanchal Biriwala knocked her door, however, when she did not open the door they forced entered her room and sexually ravished her. When she made protest she was assaulted on her leg, elbow and right thigh by a katari. On her raising hullah her neighbours Barku Biriwala and his wife came there and as she was frightened they asked her to sleep in the house of Surju Tanti where she stayed for two days. On 05.03.2008 when her elder sister-in-law visited her she told the entire story to her and thereafter has gone for treatment to the Government Hospital at Chakulia. She has said that in the hospital she met the police before whom she has given her fard-beyan. On 05.03.2008 when her elder sister-in-law visited her she told the entire story to her and thereafter has gone for treatment to the Government Hospital at Chakulia. She has said that in the hospital she met the police before whom she has given her fard-beyan. In the court she has deposed that the accused persons broke opened the door of her house, forced entered her room, committed rape upon her and when she has protested she was assaulted by a katari. She has also spoken about her stay in the house of Surju Tanti, visit of her elder sister-in-law and her treatment. She has identified her signature on the fard-beyan and she has stated that she was medically examined by the doctor after her treatment at Chakulia hospital. She has claimed to have identified both the accused persons and she has identified the appellant in the dock. 5. An accused facing the charge of rape can be convicted on the basis of testimony of the prosecutrix alone and there is no universal rule that before conviction of an accused is recorded under section 376 of the Indian Penal Code the court must insist on corroboration by other independent evidence. Under section 134 of the Indian Evidence Act, 1872 no particular number of witnesses is required for the proof of any fact. Indeed the criminal law in India does not recognize multiple witnesses and conviction of an accused can be recorded on the basis of testimony of a solitary eye-witness, provided his evidence inspires confidence. A rape case is no different from other criminal cases except those in which a statutory presumption in law is raised against the accused. Normally, a woman would not falsely implicate someone for the offence of rape for the simple reason that the incident would bring stigma to the woman but testimony of a rape victim which is treated at par with an injured witness is not like a gospel truth. It has to be examined on the anvil of normal human conduct and the intrinsic probability/improbability in her testimony. It is true that absence of spermatozoa is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 of the Indian Penal Code but what has been observed by the Supreme Court in "State (Govt. of NCT of Delhi) Vs. It is true that absence of spermatozoa is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 of the Indian Penal Code but what has been observed by the Supreme Court in "State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary", has always to be kept in mind. In the said case, the Supreme Court has observed as under: "26. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu alias Undrya v. State of Maharashtra, (2006) 1 SCC 283 ]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State v. N.K. The accused (2000) 5 SCC 30 ]. 6. In the first place, none of the prosecution witnesses has supported the prosecutrix on complicity of the appellant in the crime. P.W 1-Motilal Sundi, P.W 2-Duryodhan Patro, P.W 3-Laxmi Sundi and P.W 4-Sakuntala Patro, who are the next door neighbours, have not supported the prosecution. P.W 1 and P.W 2 have stated that it was about one year ago when in a mid-night the prosecutrix came to their house, however, on enquiry she did not reveal anything to them. Dr. Rajendra Nath Soren-P.W 5 who has examined the victim lady on 05.03.2008 at Primary Health Center, Chakulia has found one abrasion on left knee joint, 2" x 1", skin deep and one abrasion on right knee joint, 1" x 1/2", skin deep. According to P.W 5 the injuries which were caused by hard and blunt substance were caused within 2 to 3 days from clinical examination of the victim lady. After her treatment at the Primary Health Center, Chakulia the victim lady was medically examined by Dr. According to P.W 5 the injuries which were caused by hard and blunt substance were caused within 2 to 3 days from clinical examination of the victim lady. After her treatment at the Primary Health Center, Chakulia the victim lady was medically examined by Dr. Manju Bara-P.W 7 on 06.03.2008 and she has found one injury on the right knee and another on her left knee. She has also detected one bruise, 5" x 6", over the left buttock. However, there was no injury in thigh, perineum, vulva and vagina. From her clinical examination and report on radiological examination, according to P.W 7 no definite opinion on rape can be given. 7. From the aforesaid evidences, a doubt on veracity of testimony of the prosecutrix may arise, but as the law on the subject has developed, the aforesaid findings of P.W 5 and P.W 7 may not be the determinative factors to rule out commission of rape upon the prosecutrix. Therefore, before a final opinion is formed on complicity of the appellant in the crime, it must be examined whether testimony of the prosecutrix is reliable and trustworthy. There is delay of two days in lodging the First Information Report. The delay in lodging a report with the police by itself may not be the ground to discredit the prosecutrix and if delay is explained satisfactorily it would not count against the prosecution. In her fard-beyan the prosecutrix has stated that in the mid-night of 03.03.2008 she was sexually assaulted by the appellant and Chanchal Biriwala, both her neighbours, and thereafter she stayed in the house of Surju Tanti for the next two days and only after Panmuni Soren, her elder sister-in-law, visited her - Panmuni Soren is not examined during the trial - she had gone to the hospital where her statement was recorded by the police. But, there is no explanation by the prosecutrix on the delay in lodging a report with the police. If she was able to go for her treatment at Primary Health Center, Chakulia on 05.03.2008 why she could not lodge a report to the police about the occurrence has not come on record. But, there is no explanation by the prosecutrix on the delay in lodging a report with the police. If she was able to go for her treatment at Primary Health Center, Chakulia on 05.03.2008 why she could not lodge a report to the police about the occurrence has not come on record. In her fard-beyan she has stated that on her raising hullah P.W 1 and P.W 3 came to her house and she slept in the house of Surju Tanti and narrated the story to them, however, P.W 1 and P.W 2 have stated that she did not reveal anything about the occurrence. 8. In "A Textbook of Medical Jurisprudence and Toxicology" by Modi, 26th Edition, it is observed that in case of sexual offence external genital area and perineum is observed carefully for evidence of injury, seminal stains and stray pubic hair; pubic hair is examined for any seminal deposits/stray hair, and combing is done to pick up any stray hair or foreign material and sample of pubic hair and matted public hair is taken and preserved. It is observed in this book that presence of spermatozoa can be identified for 72 hours after assault and clothes of the survivor which she was wearing at the time of sexual violence may provide evidence of sexual assault. It is also mentioned that if there is struggle during the sexual violence with the accused and survivor, epithelial cells of one may be present in the nails of both. For the ultimate analysis, however, each case has to be decided on the facts and its own circumstances and normally how the things have to be perceived is that: during the clinical examination if injury on the private part of the prosecutrix is not detected and there was no sign of physical violence then sexual violence should not be inferred. But in a case like the present one in which presence of physical violence has been seen but any characteristics indicative of sexual violence has not been found and, that too, when the prosecutrix is firm and very sure that two persons have sexually ravished her, a serious doubt is raised on her testimony and in such a case sub-section (1) to section 375 of the Indian Penal Code would not come in aid of the prosecution. 9. 9. Having said so and finding that testimony of the prosecutrix is not supported by any other prosecution witness and not corroborated by the medical evidence, we hold that the prosecution has failed to prove the charges framed against the appellant and therefore, the judgment of conviction of the appellant, namely, Kunu Biriwala @ Kunu Munda dated 09.09.2013 under section 376 (2) (g) of the Indian Penal Code is not sustainable and, accordingly, it is set-aside. His conviction under section 452 r/w section 34 of the Indian Penal Code and under section 323 r/w section 34 of the Indian Penal Code is also set-aside. 10. The appellant, above-named, is acquitted of the criminal charges framed against him in Sessions Trial No. 105 of 2009. 11. Mr. Arun Kumar Pandey, the learned A.P.P states that the appellant is in custody. 12. Accordingly, the appellant, namely, Kunu Biriwala @ Kunu Munda shall be released forthwith, if not required in connection to any other criminal case. 13. Criminal Appeal (D.B) No. 956 of 2013 is allowed. 14. We appreciate the assistance rendered by Mr. Raja Ravi Shekhar Singh, the learned Amicus, who shall be reimbursed as per Notification dated 23.11.2017. 15. Let lower-court records be sent to the court concerned forthwith.