The statement of the prosecutrix inspires confidence, truthfulness and trustworthy, the same may be admitted for the purpose of holding the guilt and conviction even in absence of Medical Corroboration

CHHATTISGARH HIGH COURT

Before :- Chandra Bhushan Bajpai, J.
Criminal Appeal No. 1156 of 1999. D/d. 1.8.2014.

Babla Rai and two others - Petitioner
Versus
State of Chhattisgarh - Respondent


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For the Appellants :- Rakesh Sahu, Advocate.
For the State-Respondent :- Basant Kaiwartya, Advocate.
Cases Referred :
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753.

Chattisgarh High Court, Bilaspur Judgments

JUDGMENT
Chandra Bhushan Bajpai, J. - Challenge in this appeal is to the judgment of conviction and order of sentence dated 06-04-1999 passed by IInd Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.24/95 whereby and where under the learned Additional Sessions Judge after holding guilty the appellants for committing gang rape with prosecutrix (PW-2) (name not mentioned),
convicted them under Section 376(2)(g) of the Indian Penal Code (in short 'the IPC ) and sentenced rigorous imprisonment for 10 years and fine of L 1000/-, in default additional rigorous imprisonment for 1 year to all the appellants.
2. The conviction is impugned on the ground that without there being any iota of evidence the court below convicted and sentenced the appellant as aforementioned and thereby committed illegality.
3. As per the case of prosecution, on 19-10-1994, Smt. Menaka Das (PW-6, mother of the prosecutrix) gave a written complaint (Ex.-P/7) against appellant Babla Rai which was taken for enquiry after writing rojnamcha sanha No. 236 dated 19-10-1994. The enquiry was conducted by Assistant Sub-Inspector K. P. Shukla (PW-9) who after conducting the enquiry upon the application wrote First Information Report (FIR) vide Ex.-P./lO at Police Sahayata Kendra, Dharampura, Police Station Jagdalpur against appellant Babla Rai on 20-10-1994 which was numbered as Crime No. 470/94 under Section 376 of the IPC against appellant Babla vide Ex.-P/13. After registration of the FIR, the Investigating Officer started investigation. Assistant Sub-Inspector K. P. Shukla (PW-9) alter obtaining the necessary permission sent the prosecutrix PW-2) for medical examination vide Ex.-P/11. Doctor Smt. Shanti Pandey (PW-7) examined the prosecutrix (PW-2) and noticed no injury, hymen old healed tear, tihe prosecutrix (PW-2) was habituated to intercourse. The doctor not noticed any mark of forcible intercourse and nothing can be said about earlier pregnancy, she gave her report vide Ex.-P/7. The Investigating Officer seized transfer certificate (Ex.-P./6) and original admission register (Ex.-P/6.A) of the prosecutrix (PW-2) from Smt. Geeta Thakur (PW-5), Head Mistress, vide Ex.-P/9 and collected evidence regarding the date of birth of the prosecutrix (PW-2) which was 19-07-1979. Appellant Babla Rai was medically examined upon the request sent by Assistant Sub-Inspector K. P. Shukla (PW-9) to Medical Hospital, Jagdalpur vide Ex.-P/12. The statement of the prosecutrix (PW-2) was recorded on 28- 10-1994. The Investigating Officer also recorded the statement of other witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The Investigating Officer seized the medical certificate for the abortion of the prosecutrix (PW-2), a few naked photos and some pornography material upon the memorandum (Ex.-P/2) of appellant Babla Rai. Receipt of Mery Talks Clinic, prescription and identity card seized from appellant Babla Rai vide Ex.-P/3. One camera-roll and a few books containing pom material also seized vide Ex.-P/4. Slide from the vaginal swab prepared by Dr. Smt. Shanti Pandey (PW-7) seized in sealed condition vide Ex.-P/5. Register of Hotel Madhu where appellant Babla Rai had taken room was seized vide Ex.-P/8. The statement of the prosecutrix (PW-2) was recorded under Section 164 of the Code on 21- 11-1994 by the Additional Chief Judicial Magistrate Bastar at Jagdalpur. As per the police statement of the prosecutrix (PW-2), appellant Babla Rai committed rape against her will and consent between May 1994 and September 1994 with the help and support of appellants Sonali Rai and Savita Rai.
4. After completion of the investigation, charge-sheet was filed under Sections 363366376292 and 312 of the IPC against appellant Babla Rai on 29-12-1994 before the Chief Judicial Magistrate, Bastar at Jagdalpur, who, in turn, committed the case to the Court of Sessions, Bastar at Jagdalpur, the learned Additional Sessions Judge received the case on transfer on 06-09-1995. The trial Court issued notice under Section 319 of the Code to appellants Sonali Rai and Savita Rai. After appearance of appellants Sonali Rai and Savita Rai, the learned Additional Sessions Judge allowed the application and ordered that trial be also held against appellants Sonali Rai and Savita Rai. Against the said order no revision is preferred by appellants Sonali Rai and Savita Rai. On 01-11-1997, the learned Additional Sessions Judge framed the charges against the appellants under Section 376(2)(g) of the IPC.
5. In order to prove guilt of the appellants, the prosecution examined as many as 10 witnesses. The appellants were examined under Section 313 of the Code wherein they denied the circumstances appearing against them in the prosecution's case and pleaded innocence and false implication in crime in question.
6. After providing opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned.
7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court.
8. Learned counsel for the appellants yehemently argued that the prosecutrix (PW-2) was of bad character. Her statement is not supported by medical evidence, as per statement of Dr. Shanti Pandey (PW-7). The evidence adduced for the age of the prosecutrix (PW-2) is not beyond suspicion, as there was no radiological test in the assessment of age, no other admissible evidence as the issuance of transfer certificate, and the reason is not written in the register vide Ex.-P/6A. The prosecutrix (PW-2) was having illicit relation with Dr. D. Lajras and on account of prohibition from the side of appellant Babla Rai, she levelled false charges for rape. No other witnesses supported the evidence of prosecutrix (PW-2) for any of the act in furtherance of common intention of appellant Sonali Rai and Savita Rai at her police statement which was recorded in same day. The FIR was registered, the prosecutrix (PW-2) not stated any thing against appellants Sonali Rat and Savita Rai for their alleged co-operation for the offence committed by appellant Babla Rai. The written report given by the prosecutrix (PW-2) Is not presented by the prosecution. The statement of the prosecutrix (PW-2) is not reliable. Her statement is improved. There are material omissions and contradictions in her police statement, statement recorded under Section 161 of the Code and the Court statement which inspire no confidence. The prosecutrix's (PW-2) statement is not truthful, reliable and admissible. Whatever she narrated in the statement under Section 164 of the Code at para-4 is not find place in her police statement under Section 161 of the Code. As there are material omissions and contradictions in Ex.D/1, Ex.D/2 and Court statement, it cannot be held without all probable doubt whether the appellants committed the crime. It is prayed that the appellants be acquitted for the offence they charged.
9. Per contra, the learned counsel appearing for the State opposed the appeal also argument advanced on behalf of the appellants and submitted that prosecutrix (PW-2) was below 16 years at time of incident. Her transfer certificate and copy of the admission register, Ex.P/6 and Ex.P6A, are duly proved by Smt. Geeta Thakur (PW-5), her statement remained very firm in her cross-examination where she narrated the date of birth 19-07-1979. As the incident took place between May-94 to September-94, she was about 15 years of age at the time of incident, which is the age for which she was not in a position to even accord her consent by the provisions of Section 375 of the IPC description sixthly as it was prevailed before the Criminal Law (Amendment) Act, 2013 Section 9 (w.e.f. 03-02-2013). It was also submitted on behalf of the State that the prosecutrix (PW-2) in her detailed examination-in-chief and cross-examination narrated about the many incidents when appellant Babla Rai committed rape against her will and consent, also she very specifically narrated regarding the role played by appellants Sonali Rai and Savita Rai for the offence committed by appellant Babla Rai, in furtherance of their common intention. The prosecutrix (PW-2) was cross-examined at length but she remained very firm even after the lengthy cross-examination. She supported her statement under Section 164 of the Code and thereby the prosecution proved that appellant Babla Rai committed rape against will and consent of the prosecutrix (PW-2) many times and appellants Sonali Rai and Savita Rai corporated appellant Babla Rai in furtherance of their common intention. Prosecution is proved that all the appellants are guilty under Section 376(2)(g) of the IPC. The provisions of Section 114A of the Evidence Act is applicable to the facts of this case because as the sexual intercourse by appellant Babla Rai is proved and for assessing that whether it was with the consent of the woman alleged to have been raped, in the present case prosecutrix (PW-2) stated in her evidence before the Court that she did not consent then by the application of provisions of Section 114A of the Evidence Act, Court shall presume that she did not consent. It is also submitted that the trial court has rightly convicted and sentenced the appellants, the appeal filed by the appellants may dismissed.
10. In order to appreciate arguments advance on behalf of the parties, I have examined evidence available on record.
11. As per admitted facts, the prosecutrix (PW-2) is cousin of appellant Babla Rai, Sister-in-law (Nand) of appellant Sonali Rai and niece of appellant Savita Rai and the relevant time was between May to September, 1994, she was living with the appellants in their house.
12. So far as the age of the prosecutrix (PW-2) at the date of incident is concerned, Es.-P/6 and Ex.-P/6A are transfer certificate and school admission register which was issued and provided by Smt. Geeta Thakur (PW-5) In-charge Head Master. As per relevant certificate, the date of birth is 19-07-1979, the incident took place between May-94 to September-94, the seizure memo has also proved by Assistant Sub-Inspector K.P. Shukla (PW-9), only on account of non-mentioning of issuance of transfer certificate in the original admission register, the date of birth cannot be held suspicious. Nothing material was asked with Smt. Geeta Thakur (PW-5) which might elicit something from her statement that could make her evidence unreliable. No Question was asked in the cross-examination from the prosecutrix (PW-2) and Smt. Menaka Das (PW-6, mother of the prosecutrix) regarding the date of birth and age. As the evidence adduced by the prosecution is unshaky, in the absence of ossification test or other test, the evidence adduced on behalf of the prosecution has to be valued on its own strength, I am of the view that the trial Court has rightly held that the prosecutrix (PW-2) was below the age of 16 years at the time of crime, and by which she comes under the provisions of Section 375 description sixthly as sexual intercourse even with the consent of women of under 16 years of age (prevailing at the time of incident) said to be committed rape.
13. In the present case role of appellant Babla Rai is distinct from the role of appellant Sonali Rai and appellant Savita Rai. As per story of the prosecution, appellant Babla Rai committed rape with the prosecutrix (PW-2) against her consent and will for many times and for many occasions, on the other hand, appellants Sonali. Rai and Savita Rai co-operated him for the said rape, in furtherance of their common intention. It would be appropriate if examine the case of appellant Babla Rai separately and the case of appellants Sonali Rai and Savita Rai separately.
14. So far as the case of appellant Babla is concerned, the FIR registered by Assistant Sub-Inspector K.P. Shukla (PW-9) is Ex.-P./10 which is written when the mother of the prosecutrix gave written application vide Ex.-P/7 to the police of Jagdalpur. As per K.P. Shukla (PW-9) recorded this written application (Ex.-P/7) in rojnamcha sanha No.236 on 19-10-1994 and after enquiry he registered the FIR (Ex.-P/lO). The Ex.-P/7 is for the act mainly of appellant Babla and not over the act of appellant Sonali Rai and Savita Rai with a prayer for further action. When K. P. Shukla (PW-9) enquired the matter and interrogated the prosecutrix (PW-2), she specifically narrated the whole story against appellant Babla for the alleged rape many times at Jagdalpur, at Raipur and regarding his other acts of photography, abortion. On 20-10-1994, statement of the prosecutrix (PW-2) was recorded under Section 161 of the Code where she supported the entire incident and corroborated the FIR (Ex.-P/10) which was numbered as Ex.-P/13. Thereafter, the statement of the prosecutrix (PW-2) was recorded under Section 164 of the Code before the Judicial Magistrate where she corroborated her police statement for the offence of rape against her by appellant Babla Rai. The prosecution filed the charge-sheet initially against appellant Babla under different sections of the IPC. The prosecutrix (PW-2) was examined at length, even by a very lengthy cross-examination the prosecutrix (PW-2) remained very firm, nothing could be elicited as to discredit the evidence of the prosecutrix (PW-2) even alter the lengthy cross-examination. There was no eye-witness for the offence. The prosecutrix (PW-2) stated very categorically in descriptive manner regarding the commission of rape against her will and consent by appellant Babla Rai. The prosecutrix (PW-2) was minor, she was below the age of 16 years at the time of incident. If for the sake of argument, it is assumed that the act committed with the consent of the prosecutrix (PW-2), even then as per provisions of Section 375 of the IPC description sixthly, the consent is of no help for appellant Babla. Even otherwise, she had not given her consent. She remained unshaky in her entire examination before the Court. Even for this case, as envisaged under the provisions of Section 114A of the Evidence Act, presumption as to absence of consent may be taken into account in a case of gang rape falling under Section 376(2)(g) that if a woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Only by throwing a suggestion that she was having illicit relation with some Doctor Lajras the evidence of the prosecutrix (PW-2) not becomes false. Divyodham (PW- 1) it was not witness in any relation, he had been declared hostile by the prosecution and thereafter, in cross-examination he is levelling the charges against the prosecutrix (PW-2). It is worthy to note that the prosecutrix (PW-2) and her mother belong to very poor family, after all the prosecutrix's (PW-2) father was earning his bread by rikshaw pulling, after the death of her father due to financial and ottier problems, the appellants those who were in close relation with the prosecutrix (PW-2) put the prosecutrix in their house. It is also came in the Evidence of the prosecutrix (PW-2) that she was living in the house of her cousin brother like a servant performing many house-hold jobs, she was denied for the education, which makes it clear that the appellants are in commanding position over the prosecutrix (PW- 2) for which he had taken the illicit benefit and committed the crime by taking the prosecutrix (PW-2) many times to Raipur and thereby committed rape. Even otherwise, he used to commit rape/intercourse without the consent and will of the prosecutrix (PW-2). There was no scope for false implication, no previous enmity, on account of financial inability, virtually she took shelter in the house of her cousin appellant Babla Rai.
15. Absence of medical corroboration does not make the prosecution's case false, Court has to value the oral evidence and the evidence of the prosecutrix (PW-2). If the statement of the prosecutrix (PW-2) inspires confidence, truthfulness and trustworthy, the same may be admitted for the purpose of holding the guilt and conviction even in absence of medical corroboration. I am of the view that the prosecution proved its case that appellant Babla committed rape against the will and consent of the prosecutrix (PW-2) many times who was below the age of 16 years at the time of incident.
16. While dealing with the question of evidentiary value of statement of prosecutrix, the Hon'ble Supreme Court observed in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, the Hon'ble Supreme Court observed as follows:
    "Corroboration is not the sine qua non for a conviction in a rape case. 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 lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism male dominated society." AIR 1952 SC 54. Rel. on. (Paras 7, 9).
    "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 disbelieved 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 indepen dent 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. 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 levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune." (Para 11)
    "6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. Moreso when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
17. So far as the involvement of appellants Sonali Rai and Savita Rai is concerned, initially charge-sheet was not filed against them. Ex.-D1, statement of the prosecutrix (PW-2) under Section 161 of the Code incorporates nothing against appellants Sonali Rai and Savita Rai for the purpose of Section 376(2) (g) of the IPC. Their involvement comes into picture, after the examination of the prosecutrix (PW-2) under Section 164 of the Code on 21-11-1994 that appellants Sonali Rai and Savita Rai co-operated appellant Babla Rai for the commission of rape many times. After the statement D/2, the learned trial Court gave notice to appellants Sonali Rai and Savita Rai under Section 319 of the Code. The Trial Court allowed the application for making appellant Sonali Rai and Savita Rai as co-accused and charged them along with appellant Babla Rai and the trial was conducted.
18. In the FIR (Ex.-P/IO), there is no mention of the alleged act of co-operation by appellants Sonali Rai and Savita Rai. The same with Ex.-D/l, the statement of the prosecutrix (PW-2) under Section 161 of the Code, even the written application of mother (PW-6) of the statement of the prosecutrix (PW-2) does not indicate any role of appellant Sonali Rai and Savita Rai towards the commission of offence under Section 376(2)(g) of the IPC by appellant Babla Rai. Even otherwise, appellant Sonali Rai is wife of appellant Babla Rai and appellant Savita Rai is mother of appellant Babla Rai. In normal circumstances, wife and the mother will hardly co-operate the main accused who is married and having 3 children living under the same roof, it also appears from the content of Ex.-D./1, her police statement that on 4th October night, appellant Babla Rai and his wife had quarrelled due to illicit relation between appellant Babla Rai and the prosecutrix (PW-2) and thereafter appellants Sonali Rai and Savita Rai both had beaten the prosecutrix (PW-2) on account of such quarrel, it clearly indicates that appellants Sonali Rai and Savita Rai had a serious objection regarding the act of appellant Babla Rai. Thereby on the basis of this piece of evidence appeared in Ex.-D./l, also in the absence of any allegation by the prosecutrix (PW-2) even at Ex.-P/10 (the FIR), I am of the view that since the prosecutrix (PW-2) was of tender age, she might misunderstood the acts of appellants Sonali Rai and Savita Rai as co-operation to appellant Babla or for the reason best known to her, she improved her version and stated against appellants Sonali Rai and Savita Rai for the first time in her statement under Section 164 of the Code. The prosecutrix (PW-2) was cross-examined at para 16 for improvement for the presence of distinct role of appellants Sonali Rai and Savita Rai from the statement she deposed in Ex.-D/I, the police ststement, this further improvement by the prosecutrix is under the cloud of suspicion. But, merely on account of this suspicion, her whole statement does not become false as she categorically stated the role of appellant Babla in her police statement (Ex.-D/l) and also in the FIR (Ex.-P/10). It is duty of the Court to separate the grain of truth from the chaff of falsehood from the evidence of witnesses. I hold the statement of the prosecutrix (PW-2) truthful, admissible and trustworthy against appellant Babla. But on account of further improvement, I hold the narration of the prosecutrix (PW-2) against appellants Sonali Rai and Savita Rai is under cloud of benefit of doubt for which should be given to them as per settled provisions of law. By not observing the above facts and circumstances, I am of the view that, the trial Court has committed illegality.
19. After apprecating the entire evidence adduced by the prosecution, I am of the view that the trial Judge has rightly held appellant Babla Rai guilty for the charges and the appeal needs modification in the order of conviction and sentence against appellants Sonali Rai and Savita Rai. Consequently, the appeal is partly allowed. Conviction and sentence passed against appellants Sonali Rai and Savita Rai are hereby set aside. They are acquitted of the charges of Section 376(2)(g) of the IPC. Appellant Babla Rai is held guilty and convicted under Section 376 (1) of the IPC. So far as the quantum of sentence awarded to appellant Babla Rai is concerned, looking to the act committed by him with his cousin who was minor at the time of incident, helpless and under his shelter and looking to the nature of the act, the appellant Babla Rai does not deserve leniency and thereby appellant Babla Rai is convicted and sentenced rigorous imprisonment for 10 years and fine of L 1000/-, in default, additional rigorous imprisonment for 1 year.
20. Appellants Sonali Rai and Savita Rai are on bail. They be set at liberty forthwith. Their bail bonds shall continue for a further period of 6 months as per requirement of Section 437-A of the Code. Appellant Babla Rai is on bail. He is directed to immediately surrender before the trial Court/before the Sessions Judge if the trial Court IInd Additional Sessions Judge, Bastar at Jagdalpur not functioning, to serve the remaining part of sentence. The trial Court/Sessions Court is also directed to take appropriate step to send back appellant Babla Rai to jail for serving the remainder of the sentence imposed upon him.
Appeal partly allowed.
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