Jharkhand High Court
Haradhan Singh Son Of Late Nepali Singh vs The State Of Jharkhand on 16 July, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr.App.48 of 2006
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.48 of 2006
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(Against the Judgment of conviction dated 28.07.2003 and Order of Sentence dated 29.07.2003 passed by the 7th Additional Sessions Judge, Dhanbad in Sessions Trial No.221 of 2001)
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Haradhan Singh son of Late Nepali Singh, of village Kasiatand P.S. Barwadda district Dhanbad .... .... .... Appellant Versus The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Sanjay Prasad, Advocate
For the State : Addl.P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: Heard the parties.
2. This appeal has been preferred against the Judgment of conviction dated 28.07.2003 and Order of Sentence dated 29.07.2003 passed by the 7th Additional Sessions Judge, Dhanbad in Sessions Trial No.221 of 2001 whereby and where under the learned court below held the appellant guilty and convicted him for the offence punishable under Section 376 I.P.C. and sentenced him to undergo rigorous imprisonment for seven years and further convicted him for the offence punishable under Section 379 I.P.C. and sentenced him for two years and ordered that both the sentences shall run concurrently.
3. The case of the prosecution in brief as unfolded in the written report is that on 07.02.2001 at about 6 p.m. while the prosecutrix after attending the call of nature was returning to her house, suddenly the accused accosted her and told her that he has earned money which he will give to her and told her to satisfy him. The prosecutrix protested to the same but the appellant caught hold of the prosecutrix from the back side and thrashed her on the ground and after lifting her saree and petticoat ravished her. After committing rape on the point of dagger, the appellant 1 Cr.App.48 of 2006 told the prosecutrix not to tell about the occurrence to anybody in her house or else the appellant will murder her son and husband. The appellant also took away the gold ear-ring and chain and silver Payal and tore the saree and blouse of the prosecutrix. The prosecutrix after returning home intimated the occurrence to her mother-in-law. Her mother-in-law went to the house of the appellant and the appellant abused her under the influence of liquor and told her to do whatever she likes.
4. On the basis of the written report submitted by the prosecutrix, Police registered Barwadda P.S. Case No.27 of 2001 and took up the investigation of the case. After completion of the investigation, the police submitted the charge-sheet in the case and upon commitment of the case to the Court of Session, charges were framed against the appellant- accused person for the offence punishable under Section 376(1) of the Indian Penal Code as well as under Section 379 of the Indian Penal Code and upon the accused person pleading not guilty to the charges and claiming to be tried, he was put to trial.
5. In course of trial, the prosecution altogether examined seven witnesses and proved documents and material exhibits. No evidence was adduced on behalf of the defence.
6. Out of the witnesses examined by the prosecution, P.W.5 is the prosecutrix herself. She has stated that the occurrence took place about one and half years before her deposing in the court. She has stated that when she was returning after attending the call of the nature, the appellant met her and showing the money told her to satisfy him. Thereafter, the appellant-accused thrashed the prosecutrix and committed wrong with her. After commission of rape, the appellant accused snatched away the gold ear-ring and chain as well as the Payal of the prosecutrix and tore her blouse and saree. After the occurrence, the prosecutrix came back to her house and disclosed about the occurrence to her mother-in- law. Her mother-in-law went to the house of the appellant-accused person. The appellant-accused person abused the mother-in-law of the prosecutrix and drove her away by telling her that she can do whatever 2 Cr.App.48 of 2006 she likes. As it was night by that time the matter was not reported to the police on the date of occurrence but on the next day the prosecutrix reported the matter to police. The prosecutrix identified the appellant accused person in the court who committed wrong act with her. In her cross-examination, P.W.5 has stated that her husband returned to their house at 8:00 p.m. on the date of occurrence after finishing his duty and she disclosed about the occurrence to her husband also. On the next day, her husband went to his duty and when her husband returned she reached the police station at 2:00 pm. She stated that she went towards the South of her house to attend the call of nature. When the prosecutrix tried to raise hue and cry the appellant-accused person grabbed her mouth and thrashed on an uneven land due to which she sustained injury on her waist and on head. The appellant-accused person did not bite her. She protested by hitting the appellant-accused person with her leg and then scratched the appellant-accused person. The liquid matters also fell on her petticoat and her petticoat was stained. Police recorded her statement. She could not say how much time it took to commit rape. She denied the suggestion that the appellant-accused person did not commit rape on her.
7. P.W.6- Dr. Laxmi Pandey, is the lady medical officer who examined the prosecutrix on 08.02.2001 at 4:30 p.m. She opined that she did not find any external injury. The prosecutrix had a full term normal delivery child of three years of age. On internal examination she found that the hymen was ruptured, vagina was admitting two fingers and laxity of vagina was present. She did not find any spermatozoa in the vagina swab. According to the radiologist, the age of the prosecutrix was 19 years and above. On being proved by P.W.6 the injury-report which was in her handwriting and under signature was marked Ext.1. In her cross-examination, she has stated that the injury report does not show any defensive injury and the injury report does not suggest any rape committed on the victim. The victim may be above 20 years.
8. P.W.1- Gurhiya Devi is the sister-in-law (Nanad) of the prosecutrix, P.W.2- Shanti Devi is the mother-in-law of the prosecutrix, P.W.3- Chhote Karmkar is the brother-in-law of the prosecutrix and P.W.4- Etwari 3 Cr.App.48 of 2006 Karmakar is the husband of the prosecutrix. All these four witnesses have stated that the prosecutrix disclosed to them that the appellant committed rape upon her by telling the prosecutrix to satisfy her so that the appellant-accused person will give all the money he has earned to the prosecutrix which was protested by the prosecutrix. They have also stated about the appellant-accused person snatching away the gold ear ring, chain as well as the silver Payal of the prosecutrix. All the four witnesses have stated that they are not the eye-witness to the occurrence.
9. P.W.7- Anjani Kumar is the Investigating Officer of the case. He has stated that on being entrusted with the investigation, he inspected the place of occurrence and described the place of occurrence with its boundary. He recorded the re-statement of the prosecutrix and sent her to Sadar Hospital, Dhanbad for medical treatment and arrested the appellant accused person. He identified the appellant-accused person in the court. On being proved by him, the F.I.R. was marked as Ext.2 and endorsement on F.I.R. was marked as Ext.3. After completion of the investigation, he submitted the charge-sheet. In his cross-examination he has stated that the place of occurrence is at a distance of 200 to 300 metres from the house of the prosecutrix.
10. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused person was recorded regarding the circumstances appearing in evidence against him wherein he denied the allegations against him and pleaded innocence.
11. Learned court below after considering the evidence, in record, convicted and sentenced the accused-appellant as already indicated above.
12. Mr. Sanjay Prasad, learned counsel for the appellant submitted that the medical report does not suggest commission of any rape upon the prosecutrix. He further submitted that the fact that no external injury was detected on the person of the prosecutrix falsifies the case of the prosecution. It is further submitted by the learned counsel for the appellant that the conduct of the husband in not immediately reporting the matter to police and on the next morning, his husband going to duty 4 Cr.App.48 of 2006 and only after returning from his duty, the prosecutrix at about 2 p.m., reached the police station, also falsifies the case of the prosecution. It is also submitted by the learned counsel for the appellant that the wearing apparels of the prosecutrix having not been seized by the Investigating Officer also raise doubt about the case of the prosecution. Learned counsel for the appellant further submitted that the learned court below could not properly appreciate the evidence in the record in its proper perspective and erroneously convicted and sentenced the appellant. In support of his contention, the learned counsel relied upon the judgment of Hon'ble Supreme Court of India in the case of Joseph v. State of Kerala reported in AIR 2000 SC 1608 wherein in a case of murder and rape, the Hon'ble Supreme Court has held in para-15 as under:-
15. "The charge under Section 376, IPC, is mainly fastened upon the appellant on the 'last seen together' theory. The factum of rape of the deceased is sought to be proved from Ex. P20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex. P21, chemical report, also showed that semen was detected in one of the under-skirts found on the body of the deceased. Ex. P8, certificate issued by PW-15, the doctor, also showed that the accused-appellant was potent. But in the Report, Ex. P21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grown up lady and in the process, some injuries would have been found on the vagina/private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside." (Emphasis Supplied) It is lastly submitted by the learned counsel for the appellant-
accused person that the appellant-accused person be acquitted by at least giving him the benefit of doubt.
13. Learned Addl. P.P. on the other hand defended the impugned 5 Cr.App.48 of 2006 judgment of conviction and order of sentence and submitted that absence of any external injury in the person of the prosecutrix do not cast a cloud on the case of the prosecution in view of the fact that the prosecutrix was aged about 19 years and the accused-appellant was armed with a dagger. It is further submitted that in the absence of any ill will or motive for false implication ordinarily a rustic women like the prosecutrix will not falsely implicate a co-villager with such an offence. It is further submitted that the evidence of medical expert cannot override the trustworthy ocular testimony of the witnesses examined in court and also nothing has been elicited in the cross-examination of the prosecutrix to disbelieve or discredit her testimony in any manner hence her sole testimony is sufficient to establish the charge for both the offences punishable under Section 376 and 379 of the Indian Penal Code, for which the appellant- accused person has rightly been convicted and sentenced. It is further submitted that there is absolutely no cross-examination of P.W.5 regarding snatching of jewelries of the prosecutrix by the appellant- accused and in the absence of the cross-examination, the same is to be accepted. It is lastly submitted that the learned court below having rightly convicted and sentenced the appellant-accused person, this appeal being without any merit be dismissed. The prosecutrix being a woman who had given birth to a child it was likely that there would not have been any injuries on her private parts.
14. Having heard the rival submissions made at the Bar and the perusal of the record before adverting to the facts of the case let me refer to the principle of law related to the case.
15. It is settled principle of law that 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, unless her evidence suffers from any basic infirmity or improbability as has been held by the Hon'ble Supreme Court in paragraph 9, 10 and 11 in the case of B.B. Hirjibhai vs. State of Gujarat AIR 1983 SC 753.
"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 6 Cr.App.48 of 2006 molestation be viewed with the aid of spectacles fitted with lenses 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 opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed 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 to establish 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 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 'gold 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 see 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.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false 7 Cr.App.48 of 2006 allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours, (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocent. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the-risk of being disbelieved, act as a deterrent.
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Court's in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the 8 Cr.App.48 of 2006 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 the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune. (Emphasis Supplied)
16. It is also settled principle of law that if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. 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 the cases of sexual molestation as has been held in paragraph - 21 of the case of State of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384, which reads as under:-
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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 9 Cr.App.48 of 2006 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." (Emphasis Supplied)
17. It is also a settled principle of law that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting the accused solely on account of the defect. To do so would be tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. The Hon'ble Supreme Court of India has held thus in this respect in paragraphs 5, and 6 in the case of Karnel Singh vs. State of M.P. reported in (1995) 5 SCC 518, which reads as under:-
"5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of 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. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the 'chaddi'. That is the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury.
18. Now coming to the facts of the case, the testimony of P.W.5 is trustworthy and reliable. Nothing has been elicited in her cross-
10Cr.App.48 of 2006 examination to disbelieve or discard her testimony. Further there is absolutely no cross-examination of her so far as her testimony regarding snatching away of her gold and silver ornaments by the appellant-accused person, hence in the absence of any cross- examination the said testimony of the prosecutrix regarding snatching away of her gold and silver ornaments by the appellant-accused person, the same is to be accepted. A prosecutrix would not level a false charge against the accused person especially when no bad blood exists between her family and the family of the accused. Undisputedly, the prosecutrix had a full term normal delivery of a child. So absence of injury in her private part certainly cannot falsify the case of prosecution. It is a settled principle of law that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory. Keeping in view that the alleged occurrence took place at 6.00 pm in a village and the husband of the prosecutrix was not present in their house at the time of occurrence the delay of less than twenty four hours in reporting the matter to the police in a case of rape is satisfactory. Unlike the case of Joseph v. State of Kerala (supra) relied upon by the appellant this is not a case of brutal rape and murder. So the injuries expected in a case of brutal rape and murder cannot be expected in a case of this nature. There is no evidence in the record that the prosecutrix was having any bad blood against the family of the accused-appellant. No motive for false implication has even been suggested to the prosecutrix. Considering the aforesaid facts and circumstances of the case, this Court is of the considered view that the evidence in record is sufficient to establish the charge for the offence under Section 376 (1) as well as 379 of the Indian Penal Code against the accused-appellant beyond all reasonable doubt. The sentence imposed appears to be proper in the facts of the case.
19. In view of the aforesaid facts, the conviction and sentence of the accused-appellant is confirmed and this appeal being without any merit is 11 Cr.App.48 of 2006 dismissed.
20. Perusal of the record reveals that the appellant has been in custody since 04.06.2018. Let the Lower Court Records be sent back to the court below along with a copy of this Judgment forthwith.
21. In the result, this appeal is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th of July, 2018 AFR/ Animesh 12