EEGH COURT OF CHHATTISGARH BILAS?UR mammal 9Qgem mo. 1a23moe3 ’ APPELLANT Motilal, s/O Latg ?arma11a11c1 Da3156na, aged about 5O years, Agriculturist, R/o village Jorapali, RS. ‘Kotala Road, Distt. Raigarh, (CG) ‘ Eiersus v State of Chhattisgarh Through-The Staiioil House. Offlca Kotara Road, Raigarh, Distt. Raigarh (CG). .3 RESP§KDEHT k t‘ 1x AEEeaxance: Shift J.’K. Shéstvi, counsd for tht appallazlt. i 8111i V‘VS. Murthy, Deputy Advocats Ge11€1jal, with Shzi 3' Sushi} Dubey, GovtAdvocate, for the Stato. em JUDGMENT (24.05.2007) SI3§HL KUMAR SIHHA, J. Hoard. ‘1. This appeal is directed agajn$t the judgment of conviction axld order of sentence dated 20~11—2003 passed in Sessions Trial No.73] 2003 by the 2nd Additioual Sessiotts Judge, Raigarh, Disuict Raigarh (0G), whereby the said. Com‘t after holding the appellant guihy of the oifenee punishable under $ection 376 IRS” sentenced him to undergo R.L for 7 years and to pay a fme of Rs.500/-, 3'11 default of payment of line, to further aundergo RI. for 3 months. However, the present appellant and his son namely Robitlal (accused) both were acquitted u/ s 498—A ofl.P.C. i . 1 ‘ Q 2 C3'AA.N0. 1328/2003 2, ‘ r u Th6 case of the prosecution is That thé prosecutn'x n9m61y Gouri Bai (P.W‘15), Was-married to accused no.1 Rohitlal on 30.6.2001‘ Since then, she was residilig with her husband and father-in—law (hem the accused persons) in their house at village Jorapah' which is at a distance of 5 KMS. from vitlage Am‘ada, which is the Eative place of the prosecutrix Where her parents mSide. She lodged a First Inf01matjon Report {Ex.P.8) 011 O8.0‘8?2003 that just after 6—7 moiiths of the maniage; the accused sei‘soxls were treating her with cnie‘lty on account of deman‘d of dowry. They were demanding a Cooler, T.V. and Motorcycle arid on such pretext, some times, she was beaten by the husband. She also made allegations that on a particular day (on some Thursrlay), when her husband had gone for his Works and she was all alone in the house and was cooking food, her father-—in—law (present appellant) came to her and forcibly threw her on the floor by overpoweriiig'her and thereafter he removed her Saree and petticoat, gagged her mouth and committed forcible sexual intercourse against her: When her husband came back, she narrated the story to him, who said that she is making false allegations on his father. She also mentioned in the FIR. that she had narrated this story to the Villagers. She further mentioned that on the last Thursday i:e., 27th Feh.2003 when her mother came to her Villageior meeting her, then, she narrated the incident. to her, thereafter, she Went hack to her own village, informed the incident to the father and some persons from her parents place came to Village Jorapali and a Panchayat was convened. When nothing was resolved in 3 Cr.A.N0. 132812§03 r *, ?anchayat, sh€ lodgad the repoxt on 30.032003. 011 this mport, ,the investigation commcnmd, the prosecutn’x was sexlt for medical ’ examination by EX.P.10. “She was exammed by DrJvEkka 4P.W.18), who prepared her report Ex.P.10—A. Accorcling to the report, evely Thing was normal. She opined that no defmite opinion can be given regarding rape. The petticoat of the prosecutrix was seized on 03.03.2003 under Exf??12. ‘The appeijant was arrested. He was also sent for medical examination under EX.P.14 and wa’s examined by D1“. Anil s Gupta (P7W.19), who erepared his report Ex. P14-A. According to his report, the appellant was capable of performing sexnal intercourse. The site plan of the place of occurrence was prepared by the LO. under EX.P.7. During the course of investigation, many big and small utensils, household articles, plastic Chairs, Portable T.V. Set alongwitli Bicycle etc, were ”i seized showing them to be the Sm’ Dhcm and after completion of usual investigation, the charge sheet was iiled against the appellant. and co-accused Roliit Kninar in the Court of C.J.M., Raigarh, who committed the case to the Court of Sessions, from where it was received on transfer by the Court of 2nd Addl. Sessions Judge, Raigarh. 13} The learned Sessions Judge framed charges u/s.-fi-98¥A l.P.C. against both the accused persons alongwith an additional charge of section 376 I.P.C. against the present appellant. On judgment, both the accused persons were acquitted u] s 498—A MQ 3 g ; k I IPC. However, the present appellant was convicted uj s 3?6 and was sentenced as aforementioned It is against this judgment of 4 Cr.A.No. 1328/2003 conviction a11d ord51‘ of sentence, the appeHant has filed this criminal appeal. {4-) The conviction of the appellallt is based upon the testimony of the prosecutrix Goun‘bai (P.W.15). The Sessions Court recorded a fixuling that she is a fully reliable witness and the stOIy set forth by her is proved beyond reasonable doubt so as to pass a judgment of convicting against the appellant '4. f {5) Learned: counsel for the appellant? argues that ’{he pi‘osegutrix is 331 unreliable witness and no conviction can be based upon her‘testimony. His submission is that, in fact, the prosecutrix does not want to reside with her father-in-law and since the husband was not paying any heed to her request, the relations between them were strained, merefore, a false report has been lodged by the prosecutrix against her husband as well as the father—in-law. He also argues that according the evidence of P.W.5 Sandhya Koka, a reconciliation proceeding between the husband and wife had taken place in Pan'wan'k Saiaha. Kendra; Raigarh, which shows about the strained relation between the ,paities, particularly, between the husband and Wife and even after reconciliation, when they could not unite and the relations could not resume to cordial and better, this report has been lodged. i6} On the other hand, learned Deputy Advocate General opposes these arguments. His submission is that on account of strained relationship between the parties, the prosecutrix was being treated with cruelty by the husband and her father-in—law A! l l 1 J l J i 5 " Cr.A.N0.1328/2003 and ultimately the father—in-1aw committed sexual intercourse agajnSt the prosecutrix; due to which, she had to lodge the report. His submission is that the. ‘juiigment based upon the testimony of the prosecutrix, is sustainable and it does not require any interference by this Court. {7) I have heard learned couiisel for the parties at length and have also perused the records of the Sessions Case‘ a f i8} So far‘as the evideiice of the prosecutxix (P.W.15) is conceined, she‘ deposed Vide para 2 that on some Thursday, in the month of Fagun, at about 9 a.m., when she was preparing food in the house, and as her husballd had gone to his work, the fa‘drer—in—law came to her, removed her Saree and threw her on the floor. Thereafter, he removed her petti—coat and committed forcible irrtemourse against her. She has deposed that he continued like this for half an hour arid thereafter she was released. She further deposed that when her husband came to the house at about 1 — 1.30 p.m., she narrated the story to him, but he did not believe her, He said that he will ask his father arid if he denies, then, he will turn out her from his house. She has also deposed vide Para 4 that she has disclosed this story to, one lady, who resides near their house. She further deposed that when her mother came to her village before Shit!“ Ratri festival, she narrated the story to her and then her mother went hack and told all this to her father, who had come to her house alongwith marry villagers for organizing a Panchayat and ' ultimately, a Panchayat was orgahized but. when nothing could 6 Cr.A.N0. 1328/2003 he. decided in the Panchayat, the report EXP8 was lodged by ' her 1'11 the Po1ice Station. She has been put to a lengthy cross examma’tion on many points and ultimatsly it comes vide ?ara 15 8n 22 that two other inmates were also residing in the house, they were her sister in law {Nanad) and her husband. But the outcome is that they were not present in the house on the fateful (hay, as they had gone on their usual work. ,Vide page 17 of the cro‘ss 1 4‘ exammatlon she had made a new statement 1.6., n Whlle 1 committing sexual intercourse by the appellant, he had put the clothes ‘ i in her’inouth. When she was asked about missing of such averments in the ELR. and the police statement, she stated that she had told all these things to the police and if they are missing from the F.I.R. or the statement she cannot tell the reasons for them. t9) The mother 0t: the prosecutn‘x namely Hembai has also been examined as P.W. 7. She has deposed that Motorcycle, T.V., Cooler and Fan etc., were being demanded by the accused persons from her daughter which was told to her. In para 3, she has stated that the story regarding commission of rape by the appellantwas also toid to her by her daughter when she had visited her house two days prior to Shiv Ratri. She has also made statements regarding the manner of commission of sexual intercourse and has specifically mentioned that while committing sexual intercourse, appellant had put clothes in the mouth of the prosecutrix. . we” f 7 Cn-.A.No. 132812003 (10} The father 0f the prosecu’uix name1y Shyamlal has been gxamined as P.W,6, who silpported the story narrated to him by his wife Hembai [P.W.7) and has alsé'deposed that he had gone to Village Jorapaii where a Panchayat was cenvened 1'11 which the Saipallch etc, were also called. He was accompanied by his Wfe alid P.W.1 edram and P.W.2 Bhola Shankar in the said anchayat, but when nothing finitful came ou’i. in the Pahghayat, the report was lodged. hese two Witnesses i.e., edram and Bhola Shankar have also sted that they have ne t to the saia village and a Panchayat was orgamzed. P.W.2 Bhol {Shkar deposed that in the said Pahchayat, they asked Gowri Bai, 011 which, she stated that her-father—in-law was committing forcible ihtercourse agains her. According to him, the prosecutrix specifically mentioned that on the fateful day, her faQier—in—law 1emoved her clothes ahd sat on the cot and thereafter committed forcible intercours. The oter witness e h P.W.2 has not stated about the specific averments made in thi regard by the prosecutlix, but he supported the story to the extent that the prosecutrix had narrated in the Panchaya that her father—in—law had committed sexual intercourse against her. i B v P ’ (11) Now the question arises as to Whether on this evidence, referred to above, a inding peitaining to commissionv-f an offence of rape can be recorded ? {12} In the matter of State ofPunjab —vs- Jagir 3inqh, Baliit Simm and Karam Sing}: {1974) 3 SCC 2?7, the apex Court held that a criminal trial is not like a fairy tale wherein one is T B at go ‘ n ja an t s t ‘ f o 8 Cr.A.No.1328!2003 fme to give fight to 0116’s imagination and phantasy. It concerns itsalf with the question as to whether the accused arraigned at the trial is guilty of the mime with wliioh he’is charged. Cn'me is ail event in real life and is fhe product of interplay of diEerent human emotions. In aniving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court ‘ r has to judge the evidence by the yardstick of the probabilities, its‘ln‘trinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Althoéigh the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which ex—facie msuvortliy on grounds which are fanciful or in the nature of conjectures. {13) Referring to this decision, the Apex Court further held in the matter of State of H.P. -vs- Lekh Rai and another (2000) l $CC 247 that the Criminal trial cannot be equated with a mock scene from a stunt iilm. The legal trial is conducted to asceitain the guilt or innocence of the accused airaigned. In arriving at a conclusion about the truth, the courts are required ‘to adopt a rational approach and judge the evidence by its inninsic worth and the animus of the Witnesses. The hyper- technicalities or figment of imagination should not be allowed to 1 divest the court of its responsibility of sifting and weighing the 1 evidence to arrive at the conclusion regarding the existence or i l otherwise of a particular circumstance keeping in View the peculiar facts of each case, the social position of the victim and *6. l l l i the accused, the larger interests of the society particularly the 9 Cr.A.No. 1328/2003 law and order problem axld d€grading values of 11'1'6 inherent m the prevalent system. The realities of life have to be kept in mind while appreciau‘ng the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper—teclmical approach has to be replaced by a rational, realistic and genuiite approach for ut‘ administering . . . pistice . . in . a criminal . . trial. . Cnmmal . . jurispiuclence cannot be considered to be a ntopian thought but have s to be considered as pait and parcel of the human ‘ civilization and the realities of life. The Courts cannot ignore the erosion in values of life which is a oommOn‘ feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind. (14) So far as the. victim of rape is concerned, the settled principle is that when the version of prosecutrix inspires contidence of the Court and the Court feels it proper to depend on testimony of the prosecutrix, a conviction can well be based upon the sole testimony of the prosecutiix needing no corroboration thereof. The principle pertaining to testimony of a solitary witness equally applies in case of a rape victim that neither the legislature nor the judiciary mandates that there must be particular number of Witnesses to record an order of conviction against the accused, as the Apex Court has observed many times‘that our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of Witnesses. That is to say that before r 10 Cr.A.No. 1328/2003 r depending on ths t€stimony of thé prosecunix and basing convictiori 011 h6r testimony, it must mspire the c011fic1enc€ of g th€ Court and if $uch a confidence fsr gainsd by th6 Court after going through hsr evidence and her conduct, the conviction is possible even Without con‘oboration. Per contra, if she does not inspire confidence of the Court‘and even by supporting evidence, such confidence cannot reasonably be gained, conviction on her evidence even with the aid of the supporting evidence would not ‘ be possible. A . {15) In the present case, if we examine the, conduct of the prosecutrix, it would appear that for an incident which had taken place much prior to the lodging of First Information Report, as stated by her, no report was lodged by her for a long time. Even for such a big incident, no message was sent by herself to the parents vvho were residing at a distance of 5 K.Ms. from her in-laws’ place. The prosecutrix deposes and also mentions in the F.I.R. that on the very same day of the incident; she has narrated the story to a lady, who was resident of the same locality but the said lady has not been examined by the prosecution nor any step was taken by‘ the Investigating Officer to find out the whereabouts of that lady to whom the story was first narrated. In this regard, the prosecution has examined'one Yashoda Bai (P.W.17) who has completely turned hostile and ”has not supported the version of prosecutnix. She has deposed vide para‘l that there is single Boring Hand-Pump in the village which is situated in the Courtyard of her house and nearly all the villagers including prosecutrix used £0 collie to fetch water t i 11 Cl'.A.No. 1328/2003 from the said pump, but th5 prose'cutrix haS I16V€r disclosal anything regarding th€- alleged incident to her. In the cross examination by the State Counsel, inany questions have been put to her but She denied all the questions including the disclosure about the factum of commission of sexual intemourse by the father-in-law of the prosecutiix. This is one part of the conduct of the prosecutrix. The other part would bef that if she ivh§ 1%a11y ravished by the father-in-law in his house at about 9 i — Q30 a.m., nothing had prevented her to make hue and cly at once. s It is notthe case of prosecution that she was threatened t by the father—in—law or by any other person, due to which, she kept mum and even after compietion of sexual intercourse she did not raise any alarm. This conduct also appears to be unnatural so far as the matter between the father-in-law and daughter-in-law is concerned. in our society, particularly, lower middle class, the father—in-law assumes the status of the father and if such a big even had taken place in a family like present appellant, in the normal and natural manner it should have bzen x resisted by the victim at once and a positive reaction from the victim side should have come on ‘the same clay making allegations. against the father-in-law, if in tact the incident had taken place. Apart from the said evidence or conduct, ifwelook into the manner of commission of sexual intercourse, there are r l U many contradictions. Initially, the prosecutiix has stated that the sexual intercourse was committed in the Kitchen room gwhere she was cooking food and was forcibly thrown on the floor her clothes were removed and intercourse was done. This l 7 I Cr.A.No. 1328/2003 is what which was mentioned in the F.1.R., but i3 her court statement (para 1’7) she developed the story of putting the clothes in the mouth which is Completely, missing in the F.1.R., and accbrcling to the contentS of the F.1.R., her mouth was gaggecl by hand. Apart from this also, a big difference is about the place of occurrence, which she nan‘ated in her own evidence \ ’ an‘cl the F.l.R. and ultimately which is said to be disclosed by her iii uf the As stated above, the place of occurrence was the kitchen room according. to the pmsecutrix, yillage Panchayat‘ Whereas it comes in the evidence of RW. 1, Who was one of the 4 Ponchos and resident of village of her father that the father~in- law committed sexual intercourse on the cot. ‘ {16) This court is conscious about the principle of law which says that overmuch importance cannot be given to discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, minor cannot be annexed with undue importance. More so, when all the important “probabilities— factof’ echoes in favour of the version narrated by the witnesses. But in the present case, I ain‘- constrained to say that these are not the minor discrepancies, which may be ignored for the reason that the prosecutrix is an alleged rape victim and her evidence should be given adequate weightage. in a case like present one, when an allegation against the father-in-law is being made after a very long period, for which there is no explanation on record, and the supporting t evidence tried to he set forth by the prosecution are not i corroborating the prosecutrix, such discrepancies Would be 13 Cr..A.No. 1328/2003 u m€a11ingful at—kast to judge the mstimony of the prosecutrix whether she is making a-true or false statement. In fhis regard, the version of the village Sarpanch Na‘g‘endra Negi, who has been examfmed as P.W.4, is also meaningful. He has been declared hostile by the prosecution, but he has deposed that in fact, he wais called in the village Panchayat saying that there is some family dispute between the family of the appellant arid family of dieanfrose‘cutiix, which has to be resolved. He has stated vide para 2 that the father of the prosecutiix has’stated that. in fact, he wanted 4 to take his son—in-law with him, but nothing was resolved and ultimately the Panchayat had to be suspended. He has not deposed anything like this that the prosecutrix was complaining about the commission of sexual intercourse by her father—in—law, Another important aspect of the case, which is quite surprising, is that during the course of investigation on 04.3.2003, many house-hold articles like big and small utensils, furniture, T.V. etc., along—With bicycle, contained in EXP. 1 were seized by the police which were seized by writing one line note at the bottom of the seizure memo that all these were Sm‘ Dhan and the seizure is being made on this count. it is not only surpiising but shocking that when the Police was investigating a 3 crime for an offence punishable u/s 876 LRC. and the other offence i.e., 498—A was secondary for the mvestigation, they completely left the line of investigation u/ s 376‘ and went upon ‘making investigation on the line of section 498-A, and in all t their wisdom, such seizures etc., were necessary. The learned V Deputy Advocate Generaliappearing for the State) also noticed 14 Cl'.A.N0. 1328/2003 11113 fact 6Xp1‘essi11g surprise 0x1 th€ action taken by ths LO. making no explanation as, to why such seizum was required. This all goes to suggest that in fact, ihere appears to be some dispute between the husband and Wife, may be the usual dispute in a lower mitidle class family, due to which the parties had taken recourse to the Pan‘wcm'k Sahayata Kendra, Raigarh, and it was once resolved as is evident from the version of P.W.5 Sai‘tcgiya Koka, but when such dispute could not finally be resolved that. has resulted into lodging of? the ELR. by the prosdcutrix making such allegations against the father in law. {17) In the above facts and circumstances, the version of the prosecutn'x set forth by her in this matter, in fact, does not inspire confidence of this Court. so as to record the conviction on her sole testimony and to hold the appellant guilty of the offence punishable u/s 376 LRC. ln the opinion of this Conn, the Sessions Court committed an error ‘of law in believing the testimony of the prosecutn'x and convicting the appellant on her such testimony u] s 376 of LP‘C. {18) In the result the appeal is allowed. The conviction and sentence awarded to the appellant‘are hereby set aside, The appellant is acquitted of the charges framed against him. The appellant is reported to be in jail since 04.3.2003; He be set at liberty if not required in any other ,r case. u Rae anger» ~v .ggw a i ///