Jharkhand High Court
Ganesh Mahto vs State Of Jharkhand on 23 January, 2013
Equivalent citations: 2013 (2) AJR 691
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1 Cr. Appeal (DB) No. 1476 of 2005 (Against the judgment of conviction dated 16 th September, 2005 and order of sentence dated 17th September, 2005 passed by Sri Arun Kumar Datta, Additional Sessions Judge, Ghatsila (East Singhbhum) in Sessions Trial Case No.116 of 2001) Ganesh Mahto ... ... ... ... ... Appellant Versus The State of Jharkhand ... ... ... ... ... Respondent For the Appellant: Mr. P.K. Nayak, A.K. Singh For the Respondent: Mr. A.P.P. PRESENT: HON'BLE MR. JUSTICE D. N. PATEL HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR Per se D.N. Patel, J.
1) The present appeal has been preferred by the appellantaccused against the judgment of conviction dated 16th September, 2005 and order of sentence dated 17th September, 2005 passed by the learned Additional Sessions Judge, at Ghatsila in Sessions Trial Case No.116 of 2001, whereby the present appellantaccused has been punished for an offence under Section 376 of the India Penal Code and sentenced for rigorous imprisonment for fifteen years for committing rape upon the prosecutrix (PW.4).
2) It is case of the prosecution that on 25th November, 2000 at about 17.30 hours, the informant Basanti Mahatian (PW.2) lodged a First Information Report that on 25th November, 2000 at about 8.00 a.m. stating therein that the informant had gone to work in Kulgora brickklin and her husband had also gone to work at Jamshedpur. Her daughter is seven years old. It is further alleged by the informant that when she returned to her house after work at about 12.00 noon from Kulgora brickklin, she heard cry of her daughter who is prosecutrix (PW.4). Upon hearing cry of her daughter, when the informant immediately entered the house, she saw that her daughter was lying on the ground and the accused Ganesh Mahto is lying over her and was committing rape upon her daughter. Her daughter was crying. After seeing the informant, the accused Ganesh Mahto fled away by jumping over the wall. Thereafter the informant 2 found that the blood is coming out from private part of her daughter (PW.4). The informant raised alarm, villagers immediately rushed to the house. Thereafter, the First Information Report was lodged by the informant (PW.2). Upon lodging of the First Information Report, the investigation was carried out, statement of the witnesses were recorded and the statement of the prosecutrix under Section 164 of the Code of Criminal Procedure was also recorded by Sri Dhirendra Rai, Judicial Magistrate, 1st Class, Ghatsila (PW.6). Chargesheet was filed and the case was committed to the Court of Sessions being Sessions Trial Case No.116 of 2001 and on the basis of the deposition by the prosecution witnesses i.e. PW.1 to PW.7 and on the basis of the documents available on record, the learned trial Court has convicted the appellant for an offence punishable under section 376 of the Indian Penal Code and awarded sentence of rigorous imprisonment of fifteen years for committing rape upon the prosecutrix who is PW.4 aged about seven years as on date of incident. Against this judgment of conviction and order of sentence passed by the Additional Sessions Judge, Ghatsila in Sessions Trial Case No.116 of 2001 dated 16th/17th September, 2005, the present appeal has been preferred by the appellant.
3) We have heard the learned counsel for the appellant who has mainly submitted that there are major omissions, contradictions and improvement in the depositions of the prosecution witnesses. There is no independent evidence given by any of the villagers, though it is stated by the informant that hearing the alarm raised by her, several villagers arrived at the spot. It is also contended by the learned counsel for the appellant that clothes of the prosecutrix though seized, but, not sent to Forensic Science Laboratory for getting report. No such report has been presented by the prosecution. Similarly, no medical examination of the accused was made by the prosecution, though he was arrested and presented before the trial Court on 27th November, 2000. Prosecutrix was also examined by two doctors, but no medical report has been presented by the prosecution and the counsel for the appellant has relied upon a decision rendered by Hon'ble Patna High Court in Allauddin Seikh Vs. State of Bihar reported in 2000(1) B.L.J.R. 386 especially upon paragraphs 6 to 9. On the basis of these arguments, it is submitted by the 3 learned counsel for the appellant that the prosecution has failed to prove the offence of rape committed by the appellant beyond all reasonable doubts and, hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside.
4) We have heard the learned A.P.P. appearing on behalf of the State who has vehemently submitted that the prosecution has proved the offence of committing rape by the appellant upon minor girl beyond all reasonable doubts. It is submitted by the A.P.P. that immediate is the F.I.R., the appellant was named in the F.I.R., the deposition of the prosecutrix (PW.4) is explicitly clear and without any exaggeration, omission, contradiction or improvement. Her deposition is also getting further corroboration by deposition of other prosecution witnesses i.e. PW.1, PW.2, PW.6 and PW.7. Their evidences have been properly appreciated by the learned trial Court and hence, this Court may not interfere with the judgment and order of conviction an sentence passed by the learned trial Court.
5) Having heard learned counsel for both the sides and looking to the facts that the incident has taken place on 25.11.2000 at about 5.30 a.m. and the informant Basanti Mahatian (PW.2) lodged a First Information Report that on 25th November, 2000 at about 8.00 a.m. Thus, the informant is an eyewitness who is PW.2 and, the victim, who is PW.4, is the prosecutrix. PW.1 is the father of the victim. PW.6 is the Judicial Magistrate, 1 st Class, Ghatshila, who has recorded the statement of victim under Section 164 of the Code of Criminal Procedure.
6) PW.4 is the prosecutrix who is a minor girl. She has clearly given her deposition before the learned trial Court and stated that when she was at her house, appellant came and he committed rape upon her. In detail she has narrated the whole incident. We have also perused the cross examination. Nothing is coming out in favour of the appellant. On the contrary, during crossexamination also she has clearly stated that the appellant is residing nearby her house and he has committed rape upon her. Though, she is a rustic and a child witness, she has narrated the whole incident of rape in her own language without any exaggeration, omission or contradiction. She is a trustworthy and reliable witness and rightly the learned trial Court has appreciated the evidence given by PW.4.
47) It has been held by Hon'ble Supreme Court in the case of Krishan Lal v. State of Haryana reported in AIR, 1980 S.C. 1252 in paragraphs 3, 4 and 5 as under: "3. Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequate to rest a conviction under Section 376 IPC. He relied on observations of this Court in Gurcharan Singh v. State of Haryana for the proposition that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration "so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated". It is true that old English cases, followed in BritishIndian courts, had led to a tendency on the part of Judgemade law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstances make it safe to dispense with it". Caselaw, even in those days, had clearly spelt out the following propositions:
"The tender years of child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as 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.
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 circumstances of each case and also according to the particular circumstances of the offence charged."
(Emphasis supplied) Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.
54. We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing fingers? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice common sense in favour of an artificial concoction called "Judicial" probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.
5. We are not satisfied that merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, acquit everyone. Reflecting on this case we feel convinced that a socially sensitized Judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it."
(Emphasis supplied)
8) In view of the aforesaid decision, corroboration is rule of prudence but when the prosecutrix is trustworthy and reliable witness, then the accused can be convicted upon her deposition alone, because mostly the rape is not committed on an open ground in presence of several witnesses. It is mostly done in the close premises. In the present case also, the rape was committed at the house of the prosecutrix. Nonetheless, in the facts of the present case, the statement of the prosecutrix was recorded under section 6 164 of the Code of Criminal Procedure before the learned Judicial Magistrate, 1st Class, Ghatsila, who is also examined as PW.6 and the statement under Section 164 Code of Criminal Procedure has also been proved.
9) Looking to the deposition given by PW.6 Sri Dhirendra Roy, Judicial Magistrate, 1st Class, Ghatsila, it appears that he has clearly stated in his deposition that the prosecutrix (PW.4) was brought before him, he has asked categorically the question that whether she is giving the statement voluntarily and she has stated "yes" and thereafter her statement has been recorded. He has proved his signature on the said statement marked as Ext.1/1. He has also proved the signature of victim as Ext.2, because the statement was recorded by him. He is a Judicial Magistrate, 1 st Class, Ghatsila, District - East Singhbhum. We have perused the statement under Section 164 Code of Criminal Procedure proved by PW.6 Sri Dhirendra Roy, Judicial Magistrate, 1st Class, Ghatsila. The statement was recorded on 29th November, 2000 in which she has narrated the whole incident of rape which is committed by the appellant in detail in her own language without any exaggeration and without any contradiction with other evidences on record. We see no reason to disbelieve PW.6 and we see no reason to discard the statement of prosecutrix recorded under Section 164 Code of Criminal Procedure. This aspect of the matter has also been correctly appreciated by the learned trial Court while convicting the present appellant for an offence of rape.
10)Looking to the deposition given by PW.2 who is Basanti Mahatian, who is mother of the prosecutrix and the informant. She has lodged the First Information Report immediately on the same day and she has stated in the First Information Report that when she returned from her work place i.e. Kulgora Brickklin, she heard the cry of her daughter and rushed to her house where she saw her daughter was lying on the ground and the appellant was lying over her and he was committing rape upon the prosecutrix. Looking to her deposition, there is no major omission, contradiction or improvement. Looking to her crossexamination also, her examinationinchief remained intact and as it is. She has also stated in paragraph 2 that from the private part of daughter of the informant (prosecutrix), blood was oozing out. Thereafter she was taken to hospital.
7She has identified the appellantaccused. At the time of offence, her husband had also gone to work at Jamshedpur. She has also stated that there was no inimical term with the appellantaccused. We see no reason to disbelieve this PW.2 who is mother of the prosecutrix.
11)PW.1 and PW.3 are hearsay witnesses. PW. 1 is the father of the prosecutrix. He has also stated that there was swelling at the private parts of the daughter of PW.1 who is prosecutrix. PW.3 is an independent witness and he has also narrated the incident without any exaggeration. Though he is a hearsay witness, he has stated that there was no inimical term with the accused. PW. 5 is a tender witness.
12)Looking to the deposition given by PW.7 Ram Chandra Paswan who is Investigating officer, he has proved the handwriting of Bindeswari Singh who has recorded the statement of the informant (PW.2). He has also proved the First Information Report which is Ext.3. He has also stated before the learned trial Court in his deposition especially paragraph 12 that as the accused was arrested after couple of days of the incident, he was not sent for medical examination and he has also stated in paragraph 14 of his deposition that clothes of the prosecutrix were not given to him and, therefore, they were also not sent to Forensic Science Laboratory.
13)Thus, looking to the depositions of prosecution witnesses especially of PW.4 who is the prosecutrix, to be read with PW.6 who is Judicial Magistrate, 1st Class, Ghatsila, to be read with PW.2 the informant, the prosecution has proved the offence of rape committed by the appellant upon PW.4 prosecutrix beyond all reasonable doubts. Prosecutrix has clearly narrated the whole incident in detail as stated herein above. We see no reason to disbelieve the prosecutrix especially to her cross examination and other corroborative evidences.
14)The contention raised by the appellant is that there is no independent evidence. It ought to have been kept in mind that normally rape is not committed on an open ground in presence of witnesses. Mostly the offence of rape is being committed in close premises and, therefore, the relatives will be giving their evidence and sometimes independent witnesses are available by chance and, therefore, there is no need of further corroboration if the prosecutrix is trustworthy and reliable witness and there is no false implication of the accused. Therefore, we are not 8 accepting the argument of the appellant that independent witnesses ought to have given examined and then only the accused ought to have been convicted. Counsel for the appellant has also submitted that the clothes of the prosecutrix, though were seized, were not sent to Forensic Science Laboratory and no report from Forensic Science Laboratory has been presented before the learned trial Court. This contention is also not accepted by this Court looking to paragraph 14 of the deposition of the Investigating Officer who is PW.7.
15)It is also contended by the learned counsel for the appellant that the accused was not sent for medical examination and no report of the medical examination of the accused was presented before the learned trial Court. This contention is also not accepted by this Court looking to paragraph 12 of the deposition of the Investigating Officer (PW.7). When accused was arrested after couple of days of incident of rape, he was not sent to medical examination. Therefore, there is no question of medical report of the accused whatsoever arises. So far as nonexamination of the prosecutrix by the medical officer is concerned, it is submitted by the counsel for the State that if there is any error in the investigation, the benefit cannot go to the accused. If the Investigating Officer is committing any error, then if there are other clinching evidences on record, the accused must be punished, because doctor is not an eyewitness to the occurrence at all. It is further submitted by the A.P.P. that the medical report, etc is nothing but a corroborative piece of evidence and corroboration is a rule of prudence. We accept the argument canvassed by the learned A.P.P. It happens sometimes that the prosecutrix may come to the police for lodging First Information Report after several days. In such cases, there may not be medical evidence corroborative and, therefore, it has been held by the Hon'ble Supreme Court as stated herein above in a reported decision AIR 1980 S.C. 1252. Therefore, it is held by the Hon'ble Supreme Court that there cannot be a hard & fast rule that corroboration in a case of rape is a must. It all happens on the facts and circumstances of the case. It ha been held by Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983 Crl.L.J. 1096), in paragraphs 7, 8, 9 and 10 as under: "7. It is now time to tackle the pivotal issue as regards the need for 9 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 at p.57), 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 inimitable 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."
8. And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos' and 'ethos', has been necessitated.
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 com- plains of raps or sexual molestation be view-ed 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 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 in 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 turn-key basis and to transplant it on the Indian soil regardless of the altogether 10 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 ex-tract 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, want-ed, 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 allegations of sexual assault on account of any 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 11 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 accept-able 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 innocence. (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, acts as a deterrent."
(Emphasis supplied)
16)In view of the aforesaid decision also, even in absence of corroborative evidence, if the evidence given by the prosecutrix is trustworthy and reliable and in case of no inimical term with the appellantaccused, the conviction can be made on the basis of deposition given by the prosecutrix as stated herein above. Not only here in this case that there is a trustworthy and reliable evidence of prosecutrix PW.4, but there is also enough corroboration by the deposition of PW.6 Sri Dhirendra Roy, Judicial Magistrate, 1st Class, Ghatsila, who has recorded the statement of victim (PW.4) under Section 164 of the Code of Criminal Procedure. In the facts and circumstances of the case, rightly the learned trial Court has convicted the appellantaccused for an offence of rape committed upon prosecutrix and thereafter he sentenced the appellant for rigorous imprisonment of fifteen years.
1217)We see no reason to shake the decision rendered by the learned trial Court. The prosecution has proved the offence beyond all reasonable doubts. There is no substance in this appeal and the same is hereby dismissed. The appellant has been granted bail on 09.01.2007 by suspending the sentence awarded to him by the learned trial Court. The bail bond is hereby cancelled and the appellant is directed to surrender immediately before the trial Court. The State is also directed to take the appellant into judicial custody. The compliance report will be placed before this Court.
(D. N. Patel, J) (Shree Chandrashekhar, J) High Court of Jharkhand at Ranchi Dated, the 23rd day of January, 2013 Manoj/ N.A.F.R.