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2023 DIGILAW 411 (JHR)

Deben Kayam v. State of Jharkhand

2023-03-27

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence, both dated 20.09.2003 & 23.09.2003 respectively, passed by the learned 3rd Additional Sessions Judge, Chaibasa, Singhbhum West in Sessions Trial No. 101 of 2001, whereby the appellant was convicted for the offence punishable under sections 376 IPC and sentenced to undergo R.I. for 5 years under section 376 IPC. 3. The prosecution case as according to the written report of the informant is that on 09.11.2000 at about 3 P.M while prosecutrix was returning from cattle grazing, the appellant who was also cutting paddy crop nearby caught hold of her and dragged her forcibly into nearby bush and raped her. Though she raised alarm but no one came to rescue her. Thereafter, she came to her house and informed her husband and family members. xxxx 5. Mr. Bharat Kumar, learned Amicus assails the impugned judgment on following grounds; (i) Neither F.I.R. has been exhibited nor the I.O. has been examined. (ii) The seized petticoat has not been exhibited. (iii) The statement of the prosecutrix is not reliable and contrary to the medical report for following reason:- (a) The place of occurrence is nearby village which is a cultivable area and the time of occurrence is 3 P.M. in the afternoon, so the statement of the victim that no one came to rescue her despite of having raised hula is not believable. (b) No injury is present on the back or private part of prosecutrix despite being dragged into bushes and raped twice, which is not possible looking to the alleged place & manner of occurrence. (c) She has stated that she was pregnant of 2-3 months which is contrary to the medical report which says that she was 7 months pregnant. (d) It is impossible to drag and rape 7-month pregnant women without causing any injury or mark when she was raped on the ground in a hilly area. Relying upon the aforesaid submissions, learned Amicus contended that the victim herself appears to be non-trustworthy. 6. Learned Addl. P.P. submits that no error has been committed by the learned trial court and the deposition of prosecution witnesses fully supports the prosecution case, as such no interference is required. However, he fairly admits that as per the available record there is no criminal antecedent of the appellant. 7. 6. Learned Addl. P.P. submits that no error has been committed by the learned trial court and the deposition of prosecution witnesses fully supports the prosecution case, as such no interference is required. However, he fairly admits that as per the available record there is no criminal antecedent of the appellant. 7. Having heard learned counsel for the parties and after going through the judgment and the lower court records it emerges that on 09.11.2000 at about 3 p.m, while the prosecutrix was returning from cattle grazing, the appellant who was cutting paddy crop nearby caught hold of her and dragged her forcibly into nearby bush and raped her twice. Though, she raised alarm but no one came to her rescue. On returning home she informed her husband and family members, thereafter on the next day F.I.R. was lodged and the charges were framed on 18.10.2001 under section 376 IPC. The victim states that she came to police station next day and her statement was recorded. She also handed over the petticoat she was wearing to the Daroga and thereafter she was taken for medical examination in hospital. The victim in para 3 of her deposition has admitted that she was pregnant of 2-3 months at the time of occurrence. In para 4 she has admitted that the area was hilly. She in para 7 has stated that at the time of occurrence the appellant had no weapon. She did not receive any injury when she was dragged. She was raped at a place which had soil. In para 8 she admits that she knew the appellant and she denied the suggestion that she falsely implicated the appellant due to enmity. P.W.-6 is the doctor, who examined victim on 11.11.2000 has stated that there was no injury on the private parts and/or any parts of body, no spermatozoa either dead or alive found. She was found to be pregnant of 28 weeks. She opined that sexual intercourse took place and she was 7 months pregnant. She in cross-examination has stated that no foreign material was found in private part. 8. Thus, prima facie it appears that the deposition of the prosecutrix is not reliable, inasmuch as, though she stated that she was pregnant for 2 to 3 months, but actually as per the doctor’s report she was pregnant for 7 months. She in cross-examination has stated that no foreign material was found in private part. 8. Thus, prima facie it appears that the deposition of the prosecutrix is not reliable, inasmuch as, though she stated that she was pregnant for 2 to 3 months, but actually as per the doctor’s report she was pregnant for 7 months. It further transpires that the time of occurrence was 3 P.M. and as alleged, she was dragged from the paddy filed and she shouted but no one came to her rescue. This statement appears to be unreliable, inasmuch as, normally in the village area at 3 P.M. the agricultural filed is full of farmers doing their daily job. The deposition of the prosecutrix further becomes unreliable with respect to manner of occurrence as she said that she was dragged from the field through bushes but the doctor has opined that there was no injury on the private parts of the body and no scratches have been found anywhere. It is true that the evidence of the victim must be given foremost consideration, but the Court should be conscious in convicting the appellant solely on her version if the same appears to be unconvincing. In this regard reference may be made to the case Tameezuddin @ Tammu Versus State (NCT of Delhi), reported in (2009) 15 SCC 566 ; wherein at para 9 the Hon’ble Apex Court has held as under:- “9. It is true that in a case of rape the evidence of the prosecutirx must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.” Further, on the manner of occurrence and the report of the doctor reference may be made to the case of Pratap Misra and others versus State of Orissa, reported in (1977) 3 SCC 41 ; wherein the Hon’ble Apex Court at paragraph 8 has laid down the law as under:- “8. In the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. In the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. It is true that the learned Sessions Judge was impressed with the demeanour of this witness, but that by itself is not sufficient to prove the case if the allegation of the prosecution suffers from inherent improbabilities. The opinions of medical experts show that it is very difficult for any person to rape single-handed a grown up and an experienced woman without meeting stiffest possible resistance from her. In the instant case, according to the evidence given by PW 1, A-1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so, we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by PW 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape. The prosecutrix knew full well that the appellant had entered the room with evil intention from the fact that her husband was dragged away to the verandah and the door was bolted by A-1. In these circumstances we fail to see why the prosecutrix should have silently abided to have the intercourse with the appellant without putting up any resistance, except shouting, particularly when the prosecutrix was a fully grown up lady and experienced not only in sexual intercourse but also in the art of midwifery. She knew that she was pregnant and if any violence was caused to her it may lead to abortion. This circumstance would naturally impel her to put up the stiffest possible resistance against A-1 who was single-handed and was not armed with any weapon which may have silenced the prosecutrix. The theory propounded by the learned Sessions Judge was that as the appellants were NCC students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. The theory propounded by the learned Sessions Judge was that as the appellants were NCC students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like PW 1. Taylor in the Principles and Practice of Medical Jurisprudence, Vol. II, dealing with the cases of rape on a grown up woman observes as follows : “Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in Vol. 1, a matter of some uncertainty in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused for. similar marks of bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely. Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman — hairs, vaginal secretion or blood, and, though of less significance, seminal stains. “The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. The clothing may bear some contact traces of the woman — hairs, vaginal secretion or blood, and, though of less significance, seminal stains. “The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter.” 9. At this stage, it is also relevant to mention here that from the order sheet it appears that since the bail was rejected by this court, as such he must have completed the sentence and the learned Amicus submits that though the appellant has completed the sentence, but since it is a case of 376 IPC, as such the same should be heard on merit. Thus, this case is being decided on merit. In this regard para 9 of the judgment passed in the case of Tameezuddin @ Tamu (Supra) be profitably mentioned herein para-14. “14. In normal circumstances we would not have passed a detailed order in this background but as an allegation of rape is one of the most stigmatic of crimes, it calls for intervention at any stage.” 10. At the cost of repetition, the deposition of the victim herself transpires that it is not reliable and the entire allegation is also improbable as there was no external or internal injury on any part of the body of the victim and sexual intercourse has been admitted by the doctor as she has opined that sexual intercourse took place, but she was 7 months pregnant. This clearly goes to show that there might be a sexual intercourse but that was not by force, inasmuch as, the specific case of the prosecutrix is that the appellant caught her from behind and dragged her towards bushes and raped her twice so had there been a rape or force imposed on a 7-month pregnant lady, the medical report would have been different. This all goes to so that the statement of the victim itself is not reliable. 11. This all goes to so that the statement of the victim itself is not reliable. 11. Apart from the aforesaid observations on the reliability of the deposition of the victim and the improbability of the occurrence due the manner and place of occurrence as alleged by her, it also transpires that the F.I.R. has not been exhibited in this case nor the I.O has been examined to substantiate the place and manner of occurrence. 12. The learned trial court has miserably failed to appreciate all these facets and misdirected itself in convicting the appellant only by looking to the nature/gravity of the charge which makes the judgment perverse. Consequently, the instant appeal stands allowed and judgment of conviction and order of sentence dated 20.09.2003 and 23.09.2003, respectively, is hereby, quashed and set aside. 13. Let a copy of this order be communicated to the court below. 14. Let the lower court record be sent to the court concerned forthwith.