Patna High Court
Sk. Md. Salim vs State Of Bihar on 4 November, 2009
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
CRIMINAL APPEAL No.12 OF 1998 (S.J.)
Against the judgment dated 16.12.1997 passed in Sessions Trial No.
595/97 by Sri Rajeshwar Pd. Srivastava, 5th Additional Sessions Judge,
Purnea.
SK. MD. SALIM, son of SK. Hamid, resident of village Malobhita
Mahalbai, P.S. Sadar, District- Purnea (Appellant)
Versus
STATE OF BIHAR---------------------------------------------(Respondents)
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For the appellant: Mr. Ranbir Singh (A/C)
For the State : Mr. G.P.Jaiswal, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA
R.K.Datta, J.This appeal has been filed by the sole accused Sk. Md. Salim who was tried and convicted for the offence under Sections 376 and 452 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years under Section 376 of the Indian Penal Code and to rigorous imprisonment for two years for the offence under Section 452 of the Indian Penal Code, both the sentences to run concurrently.
2. The case was originally filed on 28.5.1993 as a complaint case in the Court of the Chief Judicial Magistrate, Purnea which was however, forwarded to the police for instituting the case under Section 156(3) of the Code of Criminal Procedure and to investigate the same on the basis of which Purnea Sadar P.S. Case No. 14/93 dated 8.6.1993 was registered under Sections 452/376 of the Indian Penal Code.
3. The prosecution case as laid out in the said complaint/FIR is that the husband of the complainant Sk. Islamuddin was a rickshaw puller 2 and was not at his house. On 20.5.1993, the date of occurrence, he was at Muradabad and the informant, P.W. 6 Samsa Khatoon was sleeping alone in the Verandah of her house when at 11 P.M. at night the accused Sk. Md. Salim came with a knife and putting her in fear of death committed rape upon her. During the course of occurrence when the informant sought to raise a cry she was again threatened to be killed and for fear of death she remained silent. On the „hulla‟ raised by the complainant, witnesses came who saw the occurrence and she narrated the accident to them and the witnesses and informant saw the accused in the light of the Dibiya which was burning. The informant thereafter informed her husband who came on 26.5.1993 and until then the witnesses had advised not to lodge a case. When the husband came he called for a Panchaiyati which was held twice and in the Panchayati on 27.5.1993 the Punches and the witnesses held the appellant Sk. Salim guilty and advised the complainant to file a case. Thereafter the aforesaid complaint case was lodged.
4. In her evidence in Court the complainant has stated that she recognized the appellant in the light of Dibiya and from his voice since she knew him from before and further stated that she raised a „hulla‟ after the appellant had fled away after committing rape on which the witnesses came to whom she narrated the events. There is no statement that the witnesses saw the appellant, either by the informant P.W. 5 or by the other witnesses examined on behalf of the prosecution, which had examined as many as 9 P.Ws. including Dr. Lata Madhav, P.W.8 who had medically examined her and the I.O. Laxmi Paswan, P.W. 9 and the lawyer Abdul Manan, P.W. 7 who had drafted the complaint. The other four witnesses 3 also claimed to have reached the place of occurrence upon „hulla‟ made by the informant and to have learnt about the occurrence thereafter from the persons present there and the informant.
P.W. 8, the Doctor who examined the informant on 12.6.1995 found her to be having a height of 5‟ 3" and weight 45 kg. She did not find any external injury on any part of the informant nor any internal injury in the private part. Her conclusion on the basis of medical certificate (Ext. 2) was that no definite opinion can be given regarding rape but the possibility of rape could not be denied.
P.Ws. 1 to 4 are the persons who claimed to have reached the place of occurrence on the „hulla‟ of the informant. They have supported the story regarding Panchayati being held although there is discrepancy in their statements as to when it was held starting from 2-3 days after the occurrence to 5-7 days after the occurrence and even 15 days after the occurrence. They have stated that there was nothing in writing and the Punches had imposed a fine upon the appellant which P.W. 3 says was Rs. 250/- and P.W. 1 says was Rs. 1800/-. None of the witnesses stated that they saw the appellant running away. P.W. 2 Sk. Aamad claims to be the own Bhaisur of the Prosecutrix and from him a denial has been taken that they did not say before the police that the prosecutrix woke him up and told of rape having been committed by the appellant, whereas P.W.9, the Investigating Officer stated that he had made such statement before him. Similarly while P.W.3, Uchit Lal had stated before the police that he learnt on the morning after the occurrence about the rape and P.W.9, I.O., has stated that he had made the statement before him that he learnt about the 4 occurrence of rape in the morning, but P.W. 3, in his evidence also claims to have reached the spot because he was keeping vigil over the paddy crops in his field which is near the place of occurrence although he could not give Khata, Khesra number of his plot of land.
5. It is also the admitted position on the basis of the statements of witnesses on either side that the appellant is the son of the step-brother of father-in-law of the prosecutrix and that the houses of both the prosecutrix and the appellant are adjacent to each other and the walls of the two houses touch each other. Both the houses are made of „Tatti‟ coated with mud. The I.O. has also given statement that the house of the prosecutrix did not have any door to close it. It has also come in the evidence of the prosecutrix that the appellant has three daughters and one son and the daughter being eldest is aged about ten years. She has further stated that she also has one daughter and three sons, the eldest being daughter aged about 7-8 years and youngest child is of 9 months.
6. The defence has also examined as many as five D.Ws. From their statements and the trend of the cross-examination it appears that the case of the defence was that there was a pre-existing family dispute and land dispute between the appellant and the prosecutrix in which the bone of contention was a palm tree standing at the boundary of their respective shares and with respect to the said land dispute a Panchaiyati had taken place about 2-3 months before the filing of the case and in the said Panchaiyati their respective areas have been demarcated but still the prosecutrix was trying to encroach upon certain portions of the land of the appellant which was resisted by him as a result of which the present false 5 case was lodged. It is also the defence case that the husband of the informant P.W.5, Islamuddin was not working outside at Muradabad rather he was working with one Laxmi Mukhiya and under a conspiracy the appellant has been falsely implicated as accused in the case. P.W.5, the husband of the prosecutrix has stated that he came to the village after receiving letter from his wife. Thereafter his wife told him regarding the rape having taken place 15-16 days earlier. Subsequently, in his cross- examination he stated that he came back 5-6 days after the occurrence. In his cross-examination he has further admitted that he does mazduri at the place of Laxmi Mukhiya who is a well-to-do person but thereafter he turns around and says that he has never worked at the place of Laxmi Mukhiya. In his cross-examination he admits that the letter which was sent to him by his wife is not with him as he has misplaced it. He further admits that he has no proof that he pulls rickshaw at Muradabad. He also admits that he did not get licence made for pulling rickshaw.
7. The defence witnesses have mainly deposed with regard to the land dispute between the appellant and the family of the prosecutrix and the dispute regarding palm tree. They have also sought to support the case regarding Panchaiyati being held on account of the land dispute and the palm tree having been given in the share of the appellant by the Punches which was not being accepted by the prosecutrix. They have further stated that no Panchayati was ever held regarding rape. Among the defence witnesses D.W.3 Md. Jamaluddin is the Mukhiya of the Gram Panchayat and he has made a categorical statement that all the panchaiyati within the said Panchayat is held under his aegis. He has deposed that the 6 only Panchayati between the parties was relating to the land in which the palm tree was given in the share of the appellant. He has categorically stated that no panchayati was ever held regarding the rape and there was never any application for such panchayati before him.
8. On a consideration of the evidence of the parties, the learned Additional Sessions Judge has accepted the prosecution case as correct and convicted the appellant on both the charges.
9. The question which arises for consideration in the present matter firstly is as to whether the appellant had entered into the house of the prosecutrix in the night of 20.5.1993 and, secondly, whether he had committed rape upon her.
10. It is evident from the consideration of the materials on the record that the only eye witness to the alleged occurrence is the prosecutrix herself and none of the prosecution witness has claimed to have seen the appellant even fleeing away not to speak of having seen him entering the house of the informant. Since the prosecutrix is the only witnesses to the occurrence the question would be as to whether any sort of corroboration would be required of her evidence in a matter of the present nature. In one of the earliest decisions on the point in the case of Rameshwar Vs. State of Rajasthan: AIR 1952 SC 54, the Supreme Court in the relevant part of paragraphs 20 to 24 has held as follows:-
"20.... It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear, 7
21. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction....
22. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime...
23. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to take it safe to dispense with the necessity of corroboration and in those special circumstances conviction so based would not be illegal....
24. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime...."
11. In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat: AIR 1983 SC 753 the Supreme Court after quoting with approval the law laid down in Rameshwar‟s case (supra) held that refusal to act on the testimony of sexual assault in the absence of corroboration as a rule, is adding insult to injury and held that the evidence of a victim of sexual assault stands on par with evidence of injured witness and if such evidence does not suffer from any basic infirmity and the probabilities does not render it unworthy of credence, as a general rule there is no reason to insist 8 on corroboration of the case except from the medical evidence. Para-11 of the said judgment is quoted below:-
"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 Courts 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 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 leveled such an accusation on account of the instinct of self-preservation. Or when the „probabilities-factor‟ is found to be out of tune."
12. The same proposition was reiterated by the Apex Court in the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain:
AIR 1990 SC 658 where it was emphasized that the prosecutrix of a sex-
offence cannot be put on par with an accomplice rather she is a victim of 9 the crime and her evidence must carry the same weight as is attached to an injured who is a victim of violence and the same degree of care and caution must be exercised in the evaluation of her evidence unless there are special circumstance which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
13. In the present case it would also be appropriate to keep in mind the following observations of Modi in his Medical Jurisprudence and Toxicology:
"Under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless, or unless she swoons away from fright or exhaustion after long resistance. The act may be accomplished if more than one man are concerned in the crime, or if the woman is too feeble to resist. In giving a definite opinion, it is necessary to take into consideration the relative strength of the parties and the community to which particularly the woman belongs. Obvious that a woman belonging to a labouring class who is accustomed to hard and rough work will be able to offer a good deal of resistance and to deal blows on her assailant and will, thus, succeed in frustrating his attempts at violation."
14. Considering the matter in the light of the aforesaid propositions, it is noteworthy that the allegations of rape in the present matter relates to a son of a step brother of her father-in-law in which the admitted position is that both the parties reside in two mud built houses whose walls touch each other. It would also be relevant to keep in mind what has come on the basis of evidence on the record that there was no 10 door for locking the house of the prosecutrix. It is also the admitted position that a large number of persons were living in their houses in the vicinity. It is evident from the prosecution case itself that when „hulla‟ was raised by the prosecutrix after the appellant had fled away a fairly large number of persons immediately came and collected at her house. There is also allegation from the side of the defence that there was some dispute regarding the boundary of the land of the two families and in the context of the social environment prevalent, the same cannot be held to be improbable or unbelievable. The appellant is an adult male having four children including three daughters and the prosecutrix also has four children. Both the appellant and the prosecutrix are well known to each other. The appellant has also not been reported to have any criminal antecedent.
15. In the said circumstances, it is not a case where the allegation of rape ought to be believed on the mere oral statement of the prosecutrix without looking at some evidence which may lend assurance to the Court that it is not a case of false implication.
16. Considering the circumstance that the prosecutrix, a woman belonging to the labour class is accustomed to hard and rough work, it cannot be easily accepted that she would not make any resistance at all and not even raise a cry and hulla when she was being raped by her own Bhainsur merely because he is alleged to have been carrying a knife with him particularly when there was no door in her house to prevent her shouts and cries from reaching the neighborhood in which a large number of persons belonging to her family and others would have come forward to her assistance as they had come forward, according to her, when 11 subsequently she raised cries after the appellant had allegedly fled away. It is not a case where she was dragged and put in a helpless position so as to be unable to make any resistance with her hands and feet or raise alarm.
17. The other aspect of the matter is the contradictory statement made by her husband P.W.5, Md. Islamuddin in his evidence in Court. In his examination-in-chief he states that he was residing at Moradabad and on receiving a letter from his wife he came back and then was told by his wife that she had been subjected to rape 15-16 days prior to that date. The said statement is stated to have been given on 26.5.1993 which falsifies the factum of the occurrence having taken place on 20.5.1993. His attempt to correct the same in his cross-examination casts a shadow of doubt upon the said statement. The said shadow is not removed by his failure to produce the letter on the basis of which he returned home. In the circumstances of the case, the said letter would have been a strong piece of evidence to show that something untoward had happened which even though not stated in the said letter yet something serious enough in the tone and tenor of the letter was there to immediately lead to the coming back of the husband of the prosecutrix from Moradabad on receipt of the said letter. There is also the admission of P.W. 5, her husband, that he was working as labour at the house of Laxmi Mukhiya which he subsequently recants realizing that the statement would completely damage the case of rape because if he had been working locally in the house of Laxmi Mukhiya then he would himself be present in the house and then there would be no question of rape having taken place against the wife taking advantage of the absence of her husband. P.W. 5, the husband has also 12 failed to bring on record any proof in support of the stand that he was working as a rickshaw puller at Moradabad.
18. The medical evidence can be of little help in a matter involving a woman having four children when the same was conducted nearly 23 days after the alleged occurrence. It can neither be used in support of the prosecution nor of the defence. Any piece of evidence which would have been relevant in the facts of the present matter would have been the clothes which she was wearing when the alleged crime was committed. It is stated that the clothes had been soiled on account of rape committed on her. In the Court she has come forward with the explanation that she had only one pair of clothes and she had washed it and did not hand it over to the police.
19. The defence has also sought to rely upon the fact that the Dibiya in the light of which identification is alleged to have been made was not shown to the I.O. or handed over to him as a material exhibit of the case. However, nothing much would turn upon it since the identification is alleged to have been made not only in the light of the Dibiya but also from the voice of the appellant who admittedly was well known to the prosecutrix.
20. In a case of rape the Court would not disbelieve the prosecutrix merely because there is no eye witness to the occurrence, as is common in many of such cases, yet it cannot be accepted that no matter what other evidence ought to be brought on the record to lend some assurance to the Court in convicting a person accused of rape on the said charge all that the prosecution has to do is to rely upon the oral statement 13 of the prosecutrix. In certain cases depending upon the age, manner of occurrence and surrounding environment in which the act was committed it would be safe to act upon the sole testimony of the prosecutrix in a sex assault case. However, in a matter like the present one, where some shadow of internal dispute in the family with regard to boundary of the land and palm tree standing on the same have been raised from the side of the defence, the Court would like to be assured that there are some other circumstances, which though not strong evidence of corroboration but lend assurance to the charge of rape. The delay in reporting the matter, when the prosecutrix herself states that Panchayati was held on the very next day although not supported by any of the other witnesses, even if explained would lead to the destruction of the very crucial piece of evidence which could have been evident on immediate medical examination of the alleged victim as also of the accused if he could have been arrested immediately. It is not a case where the matter was hushed up and action started to be taken only after the husband of the prosecutrix had come back, as is evident from the statement of the prosecutrix regarding the Panchayati and the witnesses having come on hulla having been narrated the incident. If she has acted on the advice of such witnesses and Punches to wait until the husband comes, then even if the same is not to be taken against her but it certainly does not add to the veracity of the case. Similarly the failure to keep the soiled clothes as evidence in such a heinous crime or to produce the letter by which the husband of the prosecutrix was asked to immediately rush back to the village and his failure to produce anything to show that he was working as a rickshaw puller at Moradabad, all these are not facts of which 14 benefit can be derived by the prosecution. The same has to be seen also in the context of admission made by the husband of the prosecutrix that he was working locally as labourer in the house of Laxmi Mukhiya and the contradiction in his statement regarding the actual time from the date of his personal arrival on which the occurrence took place, 15-16 days or 5-6 days, the benefit of all these facts can only go to the defence. It is a basic principle of the criminal jurisprudence that it is for the prosecution to establish its case beyond all reasonable doubts.
21. Considering the facts and circumstances of the case this Court does not think that the prosecution has succeeded in proving its case beyond reasonable doubt since its case rests entirely on the sole evidence of the prosecutrix which in the facts and circumstances of the present case as discussed above ought not to be relied upon for recording the conviction against the appellant. For the aforesaid reasons, the appeal is allowed and the judgment of conviction and the order of sentence passed against the appellant is set aside. The appellant is acquitted and will now be discharged from the liabilities of his bail bond.
(Ramesh Kumar Datta,J.) PATNA HIGH COURT Dated 5.11.2009 NAFR/ S. Pandey.