Delay in Lodging FIR - Benefit of Doubt to Accused in Rape Charges, Section 376 IPC-1860

JHARKHAND HIGH COURT

Before:- D.G.R. Patnaik, J. Criminal (Jail) Appeal No. 1515 of 2003. 

Chinta Sinku Versus State of Jharkhand D/d. 7.11.2007

For the Appellant:- Ms Bakshi Vibha, Amicus Curiae.
For the State:- A.P.P.

A. Indian Penal Code, 1860, Section 376 - Rape - Delay in lodging FIR - Benefit of doubt - Prosecutrix claims to have informed about occurrence to her sister-in-law and brother-in-law immediately after occurrence but reported to police after 10 days - Explanation that she waited for return of her husband who was away for job and when he did not return on expected date, she went to lodge F.I.R. with her brother-in-law, do not appear to be convincing and satisfactory and makes the case of prosecutrix doubtful - Benefit of doubt given to the accused and held entitled to acquittal. [Para 7]

B. Indian Penal Code, 1860, Section 376 - Rape - Conduct of prosecutrix - Prosecution case that the prosecutrix was subjected to rape by the accused under threats of injury to her person and that she was also threatened not to disclose the incident to anybody - She was allegedly subjected to rape again three days later, again threatening her of injuries to her person and forbidding her from disclosing the same to anybody - However, second time she decided to inform her sister-in-law - She did not raise alarm nor made any resistance although the accused was not armed with any weapon nor had gagged her mouth - Held, that the conduct of the prosecutrix creates doubt as to the trouth of her statement - Benefit of doubt given to the accused and acquitted. [Para 7]

JUDGEMENT
D.G.R. Patnaik, J. - The appellant has preferred the instant appeal against the judgment of conviction and sentence dated 22-09-2003, passed by the Additional Sessions Judge, F.T.C. II, Chaibasa in Sessions Trial No. 07 of 2002, whereby the appellant was convicted for the offence under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for seven year and to pay a fine of Rs. 5,000/-
'2. The case against the appellant was registered on the basis of the Fard Beyan of the prosecutrix (P.W. 9), recorded on 20-09-2001, at 9.00 A.M., at Kumardungi Police Station, for the offence under Section 376 I.P.C. The appellant is named in the F.I.R. As per the Fard Beyan of the informant, who is a married lady, aged 20 years, she used to reside in the house of her husband's brother-in-law, Manki Sinku at village Barusai Tola Maranda, since her husband was away, in course of his employment. It is alleged that in the afternoon of 08-09-2001, (Saturday), she was reclining on a cot inside the room of her house. At that time, the other members of the house had gone for work and finding her alone the accused Chinta Sinku entered her room and by subjecting her to threats of dire consequences, he committed rape on her and had also forbade her from reporting the matter to any person. Again in the afternoon of 11-09-2001, while she was alone in the house, the accused came to her room and committed rape on her by subjecting her to threats of injury to her life and person. Though, this time, he forbade her from informing anybody, yet in disgust, she informed the matter to her sister-in-law, Mukta Kul. who narrated the Incident to her husband, Manki Sinku, She waited thereafter for the return of her husband but when her husband did not return, she went to the Police station, accompanied by her brother-in-law Manki Sinku on 20-09-2001 and lodged the information with the Police. After registering the case, the Police forwarded her for Medical examination to the Hospital, where she was medically examined. On concluding the investigation, the Police submitted chargesheet recommending trial of the appellant for the offence under Section 376 of the I.P.C. The appellant was thereafter put on trial for the aforesaid offence. He had pleaded not guilty to the charge and preferred to be tried. His case in defence was of total denial of the occurrence and of his false implication.
3. Altogether, nine witnesses were examined by the Prosecution at the trial, including the prosecutrix (P.W. 9), the Doctor (P.W. 3) and the Investigating Officer (P.W.4).
4. The trial court after considering and discussing the evidences of the prosecutrix and other witnesses recorded its finding of guilt for the offence under Section 376 of the I.P.C. against the appellant and sentenced him, accordingly. The appellant has assailed the impugned judgment of conviction and sentence on the following grounds:-

(i) That the F.I.R. was lodged after a delay of eleven days and the delay has not been satisfactorily explained by the prosecution.

(ii) That the very conduct of the prosecutrix, of remaining silent about the alleged first occurrence, despite her claim that she was subjected to forcible sexual intercourse against her will is most unnatural.

(iii) That there is no corroborative evidence either from the Medical Report or from any other source to support the case of the prosecutrix.

(iv) That even otherwise, the facts and circumstances of the case would indicate that the prosecutrix was a consenting party to the sexual intercourse.

5. Ms. Bakshi Vibha, learned counsel appearing as amlcus curlae for the appellant argues that the learned trial court has committed grave error in placing reliance on the testimony of the prosecutrix without considering the fact that there are several inconsistencies and contradictions in the testimony of the prosecutrix. Learned counsel explains that whereas in her Fard Beyan the prosecutrix has claimed that she had waited for the return of her husband and when he did not return within expected time, she went to the Police Station accompanied by her brother-in-law and lodged the information with the Police. In her deposition at the trial, however, she claims that her husband returned home 7-8 days after the second date of occurrence and she reported the matter to him, whereafter she went to the Police Station for lodging the complaint. Learned counsel argues that this change in version of the lady is only to offer a futile attempt to explain the delay in lodging the F.I.R. Learned counsel points to yet another ontradiction in the testimony of the prosecutrix and explains that whereas in the Fard beyan, the prosecutrix had stated that she was living in the house of her husband's brother-in-law, since the past one month prior to the alleged date of occurrence but in her evidence at the trial, she says that she has been living in the house of her husband's brother-in-law since about past 4-5 years, prior to the alleged date of occurrence.
6. Learned counsel for the State on the other hand, supports the findings of guilt as recorded by the trial court against the appellant and would claim that the evidence of the prosecutrix is in itself sufficient to draw the inference of guilt against the appellant and the mere fact that the medical evidence does not indicate any sign of rape is of no consequence, since the Medical examination was conducted more than ten days after the alleged date of occurrence and moreover, the prosecutrix was herself a married lady. Learned counsel adds further that the conduct of the prosecutrix cannot be subjected to any criticism, merely because she remained silent after the first act of rape committed on her since it is natural to expect that the lady would suffer a sense of shame and ignominy and invite social stigma and would be hesitant to expose herself. Furthermore, it is in the evidence of the prosecutrix, that she had suffered intimidation on account of the threats of dire consequences, issued by the appellant to her. Learned counsel adds further that the evidence of the prosecutrix finds support from the testimony of the other witnesses including the brother-in-law and the sister-in-law of the prosecutrix, to whom she had revealed the occurrence when she was subjected to rape for the second time by the appellant.
7. On reading the evidences on record, two things stand out prominently. The first thing is the delay in lodging the F.I.R. and the second is the conduct of the prosecutrix herself. The claim of the prosecutrix is that she was subjected to rape by the appellant under threats of injury to her person and that she was also threatened by the appellant not to reveal the matter to anybody. The act of rape was repeated on her three days later. During this interval, admittedly the appellant did not meet her nor was there any occasion for him to extend any threats to her. Her claim is that on the second ocasion also, he had committed rape on her after subjecting her to threats of injuries and he had repeated the same threats forbidding her from informing anybody, yet this time she does not suffer any fear complex from the appellant and decides to inform her sister-in-law. If she was at all aggrieved by the act of the appellant, on the first occasion, then she being a grown up lady and being in the protection of her husband's brother-in-law and sister she could suffer no hesitation or fear to inform the occurrence to her sister-in-law, immediately after the first occurrence.
According to the description of the place of occurrence, given by the prosecutrix and explained by the Investigating Officer, the house of the brother-in-law of the prosecutrix, where she lived, comprised of a single room and it was within this room that the occurrence is alleged to have taken place. The house of the co-villagers is situated almost adjacent to the alleged place of occurrence. The claim of the prosecutrix that she had remained silent on account of the verbal threats of the appellant and had offered no resistance whatsoever is not believable. It is not alleged that the appellant was armed with any weapon or that he had gagged the mouth of the prosecutrix after entering into the room, so as to disable the prosecutrix to raise alarms.
Strangely enough, although the prosecutrix claims to have informed about the occurrence on 11-09-2001 to her sister-in-law and also to her brother-in-law and both of them affirm that they were informed by the prosecutrix about the occurrence, neither the prosecutrix nor her sister-in-law or her brother-in-law chose to report the incident to the Police or even to the village head, namely, P.W.7 or any person of the village. The prosecutrix has tried to explain that she waited for the return, of her husband and when he returned after 7-8 days, she informed him about the occurrence and thereafter went to the Police to lodge her complaint. Significantly, the husband does not accompany her to the Police Station. Furthermore, in her Fardbeyan, she has claimed that after waiting when her husband did not return home within the expected period, she proceeded to the Police Station along with her brother-in-law and lodged the complaint. The explanation for the delay does not appear to be convincing and satisfactory. The delay in lodging the F.I.R. and the conduct of the prosecutrix herself creates a reasonable doubt regarding he veracity of the statements. The benefit of doubt should certainly go to the appellant.
8. The learned trial court appears to have been carried away by the statement of the prosecutrix, on the presumption that a lady is not expected to make false allegations of sexual assault against any person risking her own prestige, inviting social stigma. The trial court has apparently ignored the fact that the testimony of the prosecutrix does not have the intrinsic quality of inspiring confidence for placing exclusive and implicit reliance. The finding of guilt against the appellant is apparently not based on appreciation of the evidences in proper perspective.
9. For the reasons discussed above, I find merit in this appeal. Accordingly, this appeal is allowed. The judgment of conviction and sentence for the offence under Section 376 of the Indian Penal Code is hereby set aside and the appellant is acquitted from the charge in respect of the said offence. The appellant, who is in custody, is directed to be released forthwith, if not wanted in connection with any other case.
Appeal allowed.