Jharkhand High Court
Ram Chandra Yadav Son Of Faljeet Yadav vs The State Of Jharkhand on 23 August, 2018
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
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CRIMINAL APPEAL(SJ) NO. 298 OF 2001
Against the judgment of conviction and order of sentence
dated 23rd July, 2001 passed in S.T. No. 50 of 1991 by 5th
Additional Sessions Judge, Dhanbad
Ram Chandra Yadav son of Faljeet Yadav, resident of
Digwadih No. 12, Old Tata Quarter, P.S.- Jorapokhar,
District- Dhanbad .......Appellant
Vs.
The State of Jharkhand ........Respondent
For the Appellant :Mr.Babban Kumar Sinha, Sr. Advocate
Mr. Ashok Kumar Sinha, Advocate
For the Respondent : Mr. Awnish Shankar, APP
PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
C.A.V. ON 13.12.2017 DELIVERED ON 23 / 08 /2018
Ratnaker Bhengra,J: The present appeal is directed against the judgment
of conviction and order of sentence dated 23.07.2001 passed by the, 5th
Additional Sessions Judge, Dhanbad in S.T. No. 50 of 1991 whereby and
whereunder the original appellant, namely, Awadh Raj Yadav was
convicted under section 376, 456 and 323 of the Indian Penal Code and
sentenced to undergo R.I. of 7 years along with fine of Rs. 5000/- and in
default of payment of fine to undergo further R.I. of one year under
section 376 I.P.C. in addition to above seven years. The appellant has
further been sentenced to undergo one year R.I. under section 456 I.P.C.
along with a fine of Rs. 2000/- and in default of payment of fine to
undergo one year R.I. in addition to the aforesaid sentence of R.I.
Appellant was further sentenced to undergo six months simple
imprisonment under section 323 I.P.C. All the aforesaid sentence of
rigorous imprisonment was ordered to run concurrently except the
respective period of sentence of imprisonment passed in default of
payment of fine which shall run consecutively in addition to the aforesaid
period of sentence of R.I. of seven years under section 376 of the IPC
and RI for one year under section 456 IPC as well as S.I. for six months
under section 323 of the IPC.
2. Before going forward, here it is pertinent to mention that original
appellant, namely, Awadh Raj Yadav died during pendency of this
criminal appeal. Therefore, this court by order dated 20.07.2012 allowed
the elder broth of the original appellant, namely, Ram Chandra Yadav to
pursue this appeal.
3. The prosecution case in brief as per the fardbeyan of the informant,
victim P.W. 4 (name concealed), a widow lady is that her husband died
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four years ago. The accused Awadh Raj yadav taking advantage of her
husband's death was behind her. Accused did dirty work to her
continuously finding the widow alone in her house. The informant to save
her image in the society did not disclose the aforesaid illegal act of the
accused. The accused continued his said bad affairs and even the
accused used to commit house trespass by scaling over the wall of the
informant's house and made intercourse with her. After some time the
people of the locality knew about the illegal act of forceful intercourse by
accused. She raised hulla several times and said to her neighbours that
the accused forcibly did bad acts with her. The local people said to
accused why he was doing bad act and told the accused to marry with the
informant. On this, accused said that he would not marry and keep the
informant as his kept. Accused always used to inter into the house and
under threat of death, forcibly did dirty act with her. To counter this,
informant kept a student of BIT Sindri, namely, Narender Kumar Singh as
tenant in her house to keep herself saved. In the night of 25/26 April 1990
at about 11 p.m. the accused came in the courtyard by scaling over the
wall of the house of the informant for committing rape. When the accused
found Narender Kumar Singh studying inside the house, he enquired as to
who he was and there after started assaulting Narender Kr. Singh by foot,
slaps and fists. The informant lady protested then she was also assaulted
by the accused. When informant raised hulla then accused fled away from
the place of occurrence.
4. On the basis of fardbeyan of the informant, FIR was registered as
Jorapokar P.S. Case No. 126/90 under section 323, 456 and 376 I.P.C.
After investigation, charge sheet was submitted against the accused.
Cognizance of the offence was taken and case has committed to the court
of sessions. Charge under section 376, 456, 323 and 342 IPC were
framed to which the accused pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution examined altogether 4
prosecution witnesses. P.W. 1 Kalam Khan, P.W. 2 Dev Raj Shukla and
P.W. 3 Jitendra Kumar Singh were declared hostile. P.W. 4 is the
informant victim. At the conclusion of the trial, the original appellant
Awadh Raj Yadav was convicted as aforesaid. Hence, this appeal.
6. P.W. 4 is the informant victim of this case. She deposed that her
husband passed away 14 years ago. On the date of the occurrence,
around 11 p.m. accused scaled boundary wall and entered her home for
outraging her modesty. She further deposed that Narender Singh lived in
her house and he used to study and gave tuition to the students. On the
day of the incident accused Awadh Raj Yadav assaulted Narender Singh
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saying 'Saala' why did you make alarm, I will do what I want. In the
assault, Narender Singh and she were injured. Accused inflicted slaps.
Narendra Wingh was injured. Even prior to this incident, the accused had
outraged her modesty and raped her. These incidents were known to the
people in the locality. She further deposed in para 5 that she used to keep
the door of her residence closed. Awadh Raj Yadav used to scale her
boundary wall to enter her house. In para 7 she deposed that even on the
day of the incident she had raised alarm and people from the locality had
gathered. She had informed the police about the incident at 2.30 A.M. on
the same night. Daroga Ji had sent Narendra Singh to the hospital. The
police had taken her statement, and the statement was read out to her and
after understanding it, she put her thumb imprint on it. In her cross
examination, she deposed that police had taken her statement to which
she put her thumb imprint. She further deposed that the information about
the previous outraging of her modesty and rape was told to Gorakh
Mukhiya. She had given the information to the Mukhiya by getting it written
by Narendra Singh. She further deposed in para 19 that even before, a
case was lodged 6-7 years ago, but she does not remember the case
number because she is not literate.
7. P.W. 1 Kalam Khan deposed in his examination in chief that he had
no knowledge about the incident and was declared hostile.
8. P.W. 2 is Dev Raj Shukla is the student of said Narendra Kumar
Singh. He had deposed that he knew Narendra Kumar Singh and that he
used to go to his house for tuition in the morning. When he went to take
tuition, then he was returned by Narendra. He was declared hostile.
9. P.W. 3 is Jitender Kumar Singh is another student of said narendra
Singh. He deposed that he knew Narender Singh and that he was his
teacher. He was declared hostile.
ARGUMENTS ON BEHALF OF APPELLANT
10. Learned counsel for the appellant submitted that this is a case
which rests on the sole testimony of single witness the informant with
serious allegation of rape apart from other offences and therefore
conviction shall not be sustained on the sole testimony of a single witness.
He further said that there are only four witnesses in this case and out of
them three witnesses P.W. 1 or Kalam Khan, P.W. 2 or Dev Raj Shukla
and P.W. 3 or Jitender Kr. Singh have been declared hostile. No doctor or
I.O. was examined by the prosecution. The non-examination of doctor and
I.O. in this case of rape seriously prejudices the case against the
appellant. Therefore, accused should not be convicted. He has also
submitted that one of the key persons whose name was referred to in the
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fardbeyan, namely, Narender Kumar Singh was not examined and
therefore, the failure of his examination also does not help the case of the
prosecution against the appellant.
11. Learned counsel for the appellant further submitted that no other
person apart from the prosecutrix has come forward as witness, even no
member or relative of the prosecutrix has come forward to support the
allegations, hence the case against the appellant is based on the
allegation and without evidence. He also submitted that the prosecutrix
has made vague, outdated and undated allegations of almost four years
ago or that allegedly sexual offence or nonconsensual relationship has
been taking place for four years ,which itself raise serious doubt regarding
her allegation. He has referred to the judgment of Narender Kumar V.
State (NCT of Delhi) reported in (2012)7SCC 171, Para 20, 21, 24 and
25. Counsel submits that vague, outdated or antedated allegations
therefore cannot be sustained. Learned counsel also referred to the
judgment of Manoharlal V. State of Madhya Pradesh reported in (2014)
15 SCC 587 wherein at para 8 and para 9 Apex court held as follows:
"8. Though as a matter of law the sole testimony of the prosecutrix
can sufficiently be relied upon to bring home the case against the
accused, in the instant case we find her version to be improbable
and difficult to accept on its face value. The law on the point is very
succinctly stated in Narender Kumar V. State ( NCT of Delhi)
reported in (2012) 7 SCC 171: to which one of use ( Dipal Misra,J).
was a party, in following terms: (SCC 178, Paras 20 and 21)
"20. It is a settled legal proposition that once the statement of
the prosecutrix inspires confidence and is accepted by the court as
such, conviction can be based only on the solitary evidence of the
prosecutrix and no corroboration would be required unless there are
compelling reasons which necessitate the court for corroboration of
her statement. Corroboration of testimony of the prosecutrix as a
condition for judicial reliance is not a requirement of law but a
guidance of prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies should not be a
ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime. Her testimony
has to be appreciated on the principle of probabilities just as the
testimony of any other witness: a high degree of probability having
been shown to exist in view of the subject matter being a criminal
charge. However, if the court finds it difficult to accept the version of
the prosecutrix on its face value, it may search for evidence, direct
or circumstantial which may lend assurance to her testimony."
9. Having found it difficult to accept her testimony on its face value,
we searched for support from other material but find complete lack
of corroboration on material particulars. First, the medical
examination of the victim did not result in any definite opinion that
she was subjected to rape. Secondly, Riyaz who was like a brother
to the victim and thus a close confidant, has not supported the case
of the prosecution and has completely denied having met her when
she allegedly narrated the incident to him. Thirdly the person who
was suffering from fever and to whose house she was first taken by
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the appellant was not examined at all. Fourthly, the policeman who
the victim met during the night was also not examined. Fifthly,
neither the brother nor any of the parents of the victim were
examined to corroborate the version that she had come from the
village of her brother and alighted around 10:00 p.m. at Bajna bus
stand. Lastly, the sequence of events as narrated would show that
she had allegedly accompanied the appellant to various places. In
the circumstances, we find extreme difficulty in relying upon the
version of the victim alone to bring home the charge against the
appellant. We are inclined to give benefit of doubt to the appellant."
12. Learned counsel for the appellant then submitted that the conviction
has to be done on the basis of findings being beyond reasonable doubt
and in this case, there are enough circumstances to cloud the allegations
and therefore the allegation under section 323, 456 as well as section 376
of the IPC cannot be sustained. Counsel for the appellant has also argued
that even the formal FIR has not been proved and in such circumstances,
the charges cannot be sustained and it be set aside.
ARGUMENTS ON BEHALF OF STATE
13. Learned counsel for the State, learned APP, on the other hand, has
argued that prosecutrix has fully supported her case and even the
evidence of this sole witness or a single witness is sufficient to prove the
allegations, provided it inspires confidence. Counsel for the State, learned
APP in reference to the formal FIR not being proved has argued that in the
cross examination of the evidence of the prosecutrix P.W. 4, she has
deposed that the police had come at 2 'O' Clock in the night and taken her
thumb imprint. He has then referred to FIR which was recorded at 2.30
a.m. in the night and thus argued so even though formal FIR has not been
marked as an Exhibit but this is not a grave lacuna on the part of the
prosecution case. Learned Counsel further submitted that it is clear from
the fard beyan of the prosecutrix and as supported by the evidence of the
prosecutrix that she was a widow lady, living in single circumstances and
the appellant taking advantage of her loneliness and her vulnerability and
being of a criminal bent of mind fully exploited the situation and outraged
her modesty over a long period of time. Counsel submits that he used to
regularly enter into the house against the wishes of the informant which is
itself a criminal offence and then sexually harassed her due to which she
was compelled to keep a tenant in her house by the name of Narender
Kumar Singh, who used to give tuition to students and the students P.W.
2 and P.W. 3 have not denied that they took tuition from the said tenant
Narender Kumar Singh. The appellant was able to exploit the situation
because he was a forceful person with criminal nature and fully exploited
the widow in her vulnerable and lonely situation. Counsel further submits
that the testimony of the prosecutrix fully inspires confidence and there is
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no reason apparent as to why she will falsely entrap herself. Being a
widow she would be conscious of the fact that she would need to live
uprightly and maintain good relations with all her neighbours and she
would only be able to do that by living a chaste and upright life. So, there
is no reason why she would lead a disreputable life in the neighbourhood,
and nowhere has it come that she was willingly allowing the appellant into
her house and consenting to a relationship of sexual nature. In fact, she
has deposed that she was opposed to the sexual advances from the
inception rather she was exploited by him in a vulnerable situation and
therefore her evidence is consistent with the allegations. Counsel has
referred to the judgment Bharwada Bhoginbhai Hirjibhai V. State of
Gujarat reported in (1983) 3 SCC 217 and cited Para 7 & 9, which is as
follows:
7. It is now time to tackle the pivotal issue as regards the need for
insisting on corroboration to the testimony of the prosecutrix in sex-
offences. This Court , in Rameshwar V. State of Rajasthan, (1952)
3 SCR 377 at P. 386: ( AIR 1952 SC 54 ), has declared that
corroboration is not the sine qua non for a conviction in a rape case.
The utterance of the Court in Rameshwar may be replayed, across
the time gap of three decades which have whistled past, in the
intimitable voice of Vivian Bose, J. who spoke for the Court:
"The rule, which according to the cases has hardened into one of
law, is not that corroboration is essential before there can be a
conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense
with it, must be present to the mind of the Judge, .... ... ...The only
rule of law is that this rule of prudence must be present to the mind
of the Judge or the Jury us the case may be and be understood and
appreciated by him or them. There is no rule of practice that there
must, in every case, be corroboration before a conviction can be
allowed to stand."
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9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with tenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential in establishing a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is 7 conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:-
(1) The female may be a 'good digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.
14. Learned APP further argued that even in absence of medical report rape can be made out if the testimony of the prosecutrix inspires confidence. He has then referred to the judgment passed in Dhanaj Singh alias Shera and others V. State of Punjab reported in (2004)3SCC 654 wherein at Para 5, Apex Court held as follows:
"5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. (See karnel Singh v. State of M.P. [1995(5) SCC 518]."
15. Learned counsel for the State then submits that even on account of defect in FIR or lack of medical report or even the non-examination of I.O. if the prosecutrix supports the FIR with no blemishes then the allegations made by the prosecutrix can be sustained. Hence, in the case in hand, the allegations of forceful entering into the house or the offence 456 of the IPC as well as the allegation of rape for section 376 of the IPC is fully sustained. The offence of section 323 IPC is also sustained. Counsel has also referred to the examination under section 313 of the Cr.P.C. and submitted that the appellant has simply made a simple denial. He has then referred to section 114 of the Indian Evidence Act, which read as follows:
"114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and 8 private business, in their relation to the facts of the particular case."
16. Learned counsel has then submitted that the prosecutrix has made a categorical assertion of rape for the offence under section 376 of the Indian Penal Code and this is apparent from what she has narrated in both her fardbeyan as well as in her evidence and therefore, the offence of rape is fully made out. Lastly, learned counsel submitted that the judgment of conviction by the learned court below is proper and requires no interference.
FINDINGS
17. Having heard both counsels, having gone through the records of the case, the evidences; I find that one of the first thing to be noted is that this is a case of single witness or based on the sole solitary witness, the informant P.W 4, who is the victim and prosecutrix in this case. The accused has been convicted under sections 323, 456 and 376 of the Indian Penal Code, the last one being a particularly, grave section because it is an offence which entails severe punishment and therefore the allegations and the evidences must be weighed with a lot of thought and consideration. The offence is of the year 1990 and the victim is herself the prosecutrix. In the nut shell, the case is that the victim who is a widow who used to reside alone in the house. The accused taking advantage of her loneliness, used to tease and chase her with an illegal motive. The victim to prevent such advances from the accused had kept one Narender Kumar Singh, as a tenant in her house who was an student in Sindri, who used to give tuition to the students. But even his presence did not deter the accused from finding opportunity to sexually harass and he even regularly scaled the informant's boundary. Victim alleged that this was continued for long despite her protest and even the people in the neighbourhood had come to know about these things and they also tried to make him understand. However, he was obstinate and said he would do what he wants and would not marry her but rather keep her as a concubine or kept woman. Thereafter, on the specific night of 25/26.04.1990 at around at 11 p.m., he committed house trespass and scaled the wall of the house of the prosecutrix. However, he found Narender Kumar Singh, studying inside who enquired as to who the intruder was on which the accused assaulted him by foot, slaps and fists. The victim protested against this upon which she was also assaulted and then the accused fled away from the place of occurrence. According to the informant, she had filed the FIR on 26.04.1990 in the night itself at about 2.30 a.m. 9
18. Learned counsel for the appellant has himself cited the judgment in Manohar Lal ( supra) in which the Apex Court relying to the judgment of Narender Kumar ( supra) said that the sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused if it inspires confidence. It is also pointed out in the cited judgment that the testimony of a victim has to be appreciated on the principle of probabilities, just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge.
19. There are certain aspects of her allegations taken along with her evidence that need to be noted. At the time of incident, her husband had died a few year ago and she was a sole single lady residing alone. The circumstances for her was difficult and this is not too difficult to imagine in our country. The character of the accused as alleged in her deposition seems to be that of a headstrong personality and who after she had become a widow, began stalking her and lurking around her residence. He has also, as per evidence, said that he will do what he wants to do and when people in the neighbourhood tried to make him to understand , he responded no body should tell him to do anything. So the accused appear to be a willful headstrong man and does not heed the protestation of the victim or the advice of the people in the neighbourhood. Narendra Kumar Singh used to live in the residence of victim and give tuitions to the children and fact of taking tuition by the said Narendra Kumar Singh has been deposed by P.W. 2 and P.W. 3 who said in their deposition that they took tuition from Narendra Kumar Singh though P.W. 2 and P.W. 3 were declared hostile. So in the night of 25/26.4.1990, Narendra Kumar Singh was also very much there and when the appellant had scaled the wall and made intrusion in the residence of the victim, then, he had enquired as to who was there and accused being disturbed, assaulted Narendra Kumar Singh. Subsequent to which the victim also had protested and she was also assaulted, after which the accused had fled away. These aspects have been corroborated in her evidence by the victim and supports the prosecution case and there is no particular reason to disbelieve this.
20. It will be good at this juncture also to refer to the judgment cited by the counsel for the State i.e. Dhanaj Singh alias Shera (supra). In this case, Apex Court said regarding defective investigation that the court would not be right in acquitting the accused persons, solely on the grounds of defect; to do so would be tantamount to playing into the hands of the Investigating Officer. I, therefore, agree with the learned APP that in the given facts and circumstances of the case, the defects in the FIR or 10 absence of the medical report or even the non-examination of the I.O. does not totally subtract from the prosecution case. These are short comings of the prosecution and the investigation. In this case the character of the accused is well made out from the evidence of the prosecutrix and therefore to disbelieve the prosecutrix fully would be playing into the hands of the faulty investigation.
21. Therefore, looking into the facts and circumstances of the case, I am inclined to hold that the original appellant was fully guilty of scaling the boundary wall of the victim forcefully entering into the house of the prosecutrix and therefore, he is guilty of the offence under section 456 of the IPC. The offence under section 323 of the IPC is not proved. Regarding conviction under section 376 of the Indian Penal Code, I find that the informant in her deposition said that she was raped earlier by the accused, but there is no legal evidence to support the charge of rape. So, regarding the offence under section 376 of the Indian Penal Code, the benefit of doubt is extended. But the original appellant was definitely guilty of outraging the modesty of the informant because on the penultimate date, accused, as per para 2 of her deposition scaled wall of the informant with ulterior motive and assaulted the informant but because of the alarm made, he could not succeed in his motive. Hence, I hold accused is convicted for the offence under section 354 of the Indian Penal Code.
22. Therefore, for the aforesaid reasoning, the order of conviction dated 23.07.2001 for the offence under section 456 of the Indian Penal Code is upheld. The conviction of the original appellant under section 323 and section 376 IPC is not made out and is set aside. However, I convict him for the offence under section 354 IPC.
23. Since the original appellant is no more and passed away, the sentence of course, cannot be applied in this case but the conviction remains.
24. Accordingly, this criminal appeal is dismissed with above modification in conviction.
( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated 23/ 08 /2018 Sharda/NAFR