CRIMINAL APPEAL No.9 OF 1998 (S.J.) (Against the judgment dated 3-12-1997 and order of conviction dated 05-12-1997 passed by Additional Sessions Judge- Ist, Samastipur in Sessions Trial No. 276/4 of 1996/1997 and Sessions Trial No. 389/27 of 1996/1997) 1. Laxman Singh 2. Umesh Singh ( Both sons of Late Nandu Singh, Resident of Village, Berai, Police Station Sarai, District Vaishali --------- (Appellants) Versus State of Bihar --------- (Respondent) CR. APP (SJ) No. 24 of 1998(S.J.) Jaleshwar Singh S/o Late Sukhi Chand Singh Resident of village Berai, Police Station Sarai, Dist. Vaishali ---------- (Appellant) Versus State of Bihar -------- (Respondent) For the Appellants: Sri Birendra Kumar Sinha, Sr. Advocate Sri B.J.Oja, Advocate For the State: Sri S.N.Prasad,A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K.Mandal,J. Both these appeals arise out of judgment dated 3rd December, 1997 and order of conviction dated 05-12-1997 passed by Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 276/4 of 1996/1997 and Sessions Trial No. 389/27 of 1996/1997. The appeals have been heard together. 2 The present order shall govern both the appeals. 2. By the judgment under challenge appellant Umesh Singh and Laxman Singh (Cr. App. (S.J.).No. 9/1998) have been convicted under Sections 344, 366 of the Penal Code and sentenced to undergo R.I. for 02 years and 04 years respectively. Appellant Jaleshwar Singh (Cr. App. (S.J.) No. 24/1998) has been convicted under Sections 344, 366 and 376 of the Penal Code and sentenced to undergo R.I. for 02 years, 04 years and 08 years respectively. 3. Background facts in a nut shell are as follows:- The present trial germinates out of G.R.P.S. Samastipur case no. 66/95 lodged on 22.09.1995 (Ext.4) by one ‘Nirmala Devi’ (P.W.3) alleging therein that on 21.08.1995, in the early morning she left her ‘sasural’ in a village and reached Samastipur town in connection with her treatment. She went to the clinic of Dr. N.Tigga. She left the clinic of Dr. Tigga at about 06 P.M. and came to the Samastipur bus stand for taking a bus in order to reach her matrimonial home. There was no bus available at the bus stand and as such she went to the Samastipur Railway Station at about 08.00 P.M. in the night. She went towards the extreme eastern 3 portion of the platform no.1 for easing herself. As she was about to leave after easing herself she was captivated at the said place by three persons. Her mouth and eyes were tied by ‘gamacha’. Her hands were also tied. She wanted to raise ‘halla’ but was unable as her mouth was muffled. All the three accused persons forced/ dragged her and then made her to sit on a motorcycle on the road and thereafter all of them traveled thereon up to the house of appellant Jaleshwar Singh. It appears they travelled for about 02 to 2 ½ hours to reach the house of appellant Jaleshwar Singh. At the house of this appellant she was kept confined by the three accuseds persons (appellants herein). The house of appellant Jaleshwar Singh was in Village Berai, under Sarai P.S. of Vaishali District. On 22.09.1995 she escaped from the confinement on the pretext of attending call of nature and met one Nilam Sinha (P.W.1). She narrated the entire episode to her whereafter she brought her to the police station where the F.I.R. was lodged on 22.09.1995 giving rise to the said case. A positive allegation therefore was made that accused/appellant Jaleshwar Singh had under threat to life committed rape on her for about 10 days before she escaped on 22.09.1995 from the unlawful confinement. The 4 matter was thereafter investigated by PW-4 Ganesh Paswan (Investigating Officer), who upon conclusion of investigation, submitted charge sheet against all the three appellants under various Sections of the Penal Code including Sections 366, 376 and 344 of the Penal Code. It appears that appellants Laxman Singh and Umesh Singh were committed to the court of Sessions first on 08.07.1996 giving rise to Sessions case no. 389/1996. Subsequently, appellant Jaleshwar Singh was also committed to the court of Sessions for facing trial which gave rise to Sessions Trial No. 276/4 of 1996/1997. Under the orders of the court dated 03.04.1997 passed in Sessions Case No. 276/1996 both the Sessions cases were amalgamated for hearing and thereafter they were heard together. 4. The charges were framed under different Sections/heads as noticed above which were read over and explained to the appellants. The appellants abjured their guilt and thus claimed to be tried. The defence of the accuseds/appellants was total denial of the occurrence. 5. The prosecution in order to bring home the charges examined altogether 05 witnesses. P.W.1 Nilam Sinha is a stranger who met the victim on her way back home after escape from her alleged 5 confinement at the house of appellant Jaleshwar Singh and brought her (victim) to the police station for recording the F.I.R. She has proved her signature on the written statement (Exhibit-1). P.W.2 Dr. Srigdha Sinha is the doctor who examined the victim/prosecutrix and submitted injury report (Ext.2). P.W.3 Nirmala Devi is victim/prosecutrix of the present case. P.W.4 Ganesh Paswan is the Investigating Officer of the case who made investigation and having found the charges prima- facie true submitted charge-sheet against the appellants. P.W.5 Bhola Singh is own brother of the informant/victim. It is to be noted here that this witness has neither been named in the F.I.R. nor cited in the charge-sheet. 6. Mr. B.K. Sinha, learned senior counsel appearing on behalf of all the appellants, made elaborate submissions in order to assail the judgment and order of conviction recorded by the learned trial court. The submissions advanced by him shall be considered at the later part of the judgment. Per contra, learned A.P.P. appearing on behalf of the State, supported the judgment and order 6 of conviction. According to him, prosecution has been able to prove the case beyond all reasonable doubts and as such order under appeal merits no interference. 7. Before this court proceeds to delineate and consider the evidence brought on record, it is considered apposite to first refer to the submissions advanced on behalf of the parties regarding the yardstick(s) to be applied by court in cases of rape while appraising the evidence of the prosecutrix who is the victim of sexual assault. Learned counsel for the appellants referred to and relied upon few decisions of the Supreme Court. They are as follows:- (i) 2007 AIR SCW 2732 Naravan @ Naran Versus State of Rajasthan, (ii) AIR 2003 SCC 818 Vimal Suresh Kamble Versus Chaluverapinake Apal S.P. and another. (iii) (2007)12 SCC page 57 Radhu Versus State of Madhya Pradesh. (iv) (2008) 10 SCC page 69 Lalliram and another versus State of Madhya Pradesh. Learned A.P.P. on the other hand, placed reliance on the following judgments:- 7 (i) (2006)1 CRI. L.J., page 562, equivalent to AIR 2006 SCC 747 Parbata Versus State of Rajasthan. (ii) AIR 1999 SC 3916 State of Himachal Pradesh Versus Lekh Raj and another. 8. This court proceeds to consider the judgments cited on behalf of the parties in order to decipher what is the law and/ or the yardstick to be applied by a court of law while appreciating the evidence of a prosecutrix who is a victim of sexual assault in our society. In Radhu Versus State of Madhya Pradesh (supra) this court on appreciating the rival submissions in paragraph no.6 of the report ( at page 60) held as under: “6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires 8 drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a “ rape”, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financially liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.” In Lalliram and another versus State of Madhya Pradesh (Supra) the Supreme Court was considering a case where the lady was gang raped. 9 While appreciating the evidence on record the Supreme Court held that injury sustained in course of such ravaging although is not a sine quo non for deciding whether rape had been committed. But has to be decided on the factual matrix of each case. If the allegation of rape by many persons and on several occasion/times but no injury is noticed then certainly is an important factor to be borne in mind. Summarizing the position in law the Supreme Court in paragraph no.12 of the report (at page 72, SCC) held as under:- “12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar Case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if 10 the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial.” In Vimal Suresh Kamble Versus Chalu Verapinake Apal S.P. and anothers (Supra) it was held that the evidence of the prosecutrix if does not inspire confidence then the court has to look for corroboration which can lend assurance to the evidence of the victim. The overall appreciation of the evidence of the prosecutrix and her conduct can always persuade court of law to look for corroborative evidence in order to assure itself that what the prosecutrix is deposing in court is nothing but truth. This is what the Supreme Court has to say in paragraph no.21 of the report: “21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that P.W.1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and 11 truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed.” Learned APP appearing on behalf of the State, on the other hand, referred to few decisions in order to buttress his submission that in a case of rape in our society the court should normally and generally accept evidence/version of a prosecutrix as she has suffered condemnation of the society both physically and psychologically. In this connection he referred to a judgment rendered in the case of Perbata Vrs. State of Rajashtan (supra). This was a case in which the prosecutrix while picking up cow-dung in a ‘jungle’ was overpowered by the accused and thereafter rape was committed. The prosecutrix raised alarm which attracted few witnesses to the occurrence. The case of the prosecutrix was that out of fear she could not do anything since the appellant was carrying an axe and 12 threatened her. The doctor on examination of the victim, found injuries on her person displaying violence/struggle. The said fact can be gathered from paragraph no.3 of the judgment. In that factual scenario, the Supreme Court in paragraph no.7 of the report held as under:- “7.The prosecutrix has fully supported the case of the prosecution. Much was sought to be made of the fact that no blood was found., We do not think in a case of this nature there could be possibility of any bleeding. The fact that the broken bangles were not found at the place of occurrence has been unduly exaggerated by the trial court to disbelieve the witness. We find no good reason to disbelieve the prosecutrix when she was fully supported the case against the appellant. It is not suggested that she had any enmity with the appellant or there was any particular reason for her to involve the appellant in this offence. Some far-fetched disputes were sought to be highlighted, but there is nothing on record to suggest that the prosecutrix or her husband had any motive to falsely implicate the appellant.” In the case of State of Himachal Pradesh Versus Lekh Raj and another (Supra) a widow (prosecutrix) aged about 55 years was criminally 13 assaulted and subjected to forcible intercourse by the accused (respondents) near her village. On medical examination various injuries were found on her person. The medical report opined that the injuries reflected the signs of struggle. The trial court convicted the appellant for the offence punishable under Sections 376 (2)(g) )and 323 of the Penal Code. In appeal preferred by the accused/appellant the High Court took some what different view and acquitted the accused of the charges framed against them. In the appeal preferred against the said judgment the Supreme Court on appraisal of the evidence appearing from the record in paragraph no.5 of the report ( at page 3918) held as under: “5. We are, however, of the opinion that the High Court was not justified in holding that the prosecutrix had not been subjected to forcibly sexual intercourse or the prosecution had failed to prove the case against the respondent No.1 also. To hold that the prosecution had not proved the case against the respondent, beyond reasonable doubt, the High Court mainly relied upon the medical evidence and finding that “no dead or alive spermatozoa were seen. Absence of such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the 14 possibility of the prosecutrix having been subjected to sexual intercourse on the date and time alleged by the prosecution”. Such a conclusion is not referable to any evidence on record. No such suggestion was put to the doctor nor any medical authority referred to in support of the conclusions arrived at by the High Court.” 9. This court thoughtfully reflected over the rival submissions advanced on behalf of the parties and carefully perused the judgment cited in support thereof. In my considered view, the position in law emerging therefrom are that normally findings of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix if found truthful and trustworthy. Such evidence should not be rejected on the basis of minor discrepancies and contradictions unless the material on record requires drawing of an inference that there was consent or that the entire incident is improbable and imaginary. However, if the evidence of the prosecutrix is not found above board and is open to question based on attending factual circumstances of the case and the court has doubts in mind that the evidence appears to be artificial then the court shall definitely be within its bounds to look for corroboration in order to assure itself that whatever prosecutrix is deposing is true and 15 conviction can be recorded safely on her deposition. It is always the duty of the prosecution to bring the offence home by reliable evidence dispelling the possibility of reasonable doubts on the basis of legal evidence and material on the record. 10. Having considered the yardstick to be applied in such cases and keeping those yardsticks in focus, this court now proceeds to examine the evidences which have been brought on record by the prosecution to prove the case as unfolded in the F.I.R. and during trial. 11. P.W.3 is the prosecutrix. According to the F.I.R. (Ext.4) she has disclosed her age as 23. Admittedly she is a married woman and as per the prosecution case on the date of occurrence in wee hours she left her matrimonial home all alone in order to visit a lady doctor called ‘N.Tigga’, in connection with her ailment. At the time of deposition, the trial court has assessed her aged about 28 years. In her deposition, she has stated that on the date of occurrence she left her matrimonial home very early in the morning and reached the dispensary/clinic of the doctor where she was detained till evening but could not be medically examined. Thereafter she went to the bus stand but as there was no bus available at the 16 Bus stand, she went to the Samastipur Railway Station where she reached at about 08 P.M. She kept waiting for the train on the platform no.1 when she felt the call of nature and in order to relieve herself she went to the eastern side of the Railway platform but in the meanwhile, three miscreants captivated her, muffled her face including eyes. The hands were also tied with the help of ‘gamchha’ and thereafter she was dragged to some distance and loaded on a motorcycle and all the three miscreants sat on the said motorcycle and drove for about 02 to 2 ½ hours. She reached the house of appellant Jaleshwar Singh where she was untied and thereafter all the three appellants committed rape on her. They ravaged her for about 10 days. She was confined there under threat to her life for about 30 days. On 22.09.1995 she escaped from that place/house on the pretence of attending call of nature and thereafter reached the main road where some person made her sit on a bus and from there she reached Mahuwa from where she boarded on another bus destined for Samastipur. While travelling on the said bus, she met a lady called ‘Nilam Sinha’ (PW-1) to whom she disclosed the painful happenings that had occurred with her. Aforesaid Nilam Sinha (PW-1) took her to the Town 17 police Station and from there she was re-directed to Rail police station where her ‘fardbeyan’ was recorded. She has proved her signature on the ‘fardbeyan’ (Ext. 1/1). In her cross-examination she admits that in her matrimonial home there are altogether three adult male and four female members. However on the date of occurrence there was no male member present in matrimonial house and as such for the first time she left the home and went to Samastipur on her own. She left her ‘sasural’ at about 04 A.M. in the morning and as soon as she reached Samastipur and consulted the compounder of the doctor she was made to know within an hour that the doctor was busy enough and she was not going to be treated on that particular day. The evidence indicates that the distance of Samastipur and her matrimonial home can be covered within 02 hours. She is emphatic in stating that the only purpose of her visit on that day to Samastipur was to consult the doctor and there was absolutely no other work. In order to return home she went to the bus stand and thereafter to the Railway Station where she could not find any train and as such she decided on waiting for the train as somebody disclosed her that at about 09 P.M. a train will arrive on the platform. However, in the 18 subsequent paragraph, this witness has categorically admitted that her home is not connected with Railway line/route and as such for reaching her home or her ‘naihar’ she always used to travel on bus. She has gone to the extent of saying that, for the first time, she had gone to the Railway Station in order to catch a train where she felt a call of nature. She did not enquire about the lavatory/bath rooms available on the platform no.1 but went to the extreme eastern side of the Railway Station in order to ease herself. However, it appears that this witness subsequently stated that she in fact, looked for the lavatory/bath room on the platform but did not find any on platform no.1. The place where she visited for easing herself was dark but subsequently she says that there was bulb light which continued till the entire occurrence of captivating her by the three miscreants (appellants) was over. In paragraph no.5 of her deposition the prosecutrix states that after being captivated she was dragged up to the main road adjacent to the Railway Station. She was dragged up to 1 ‘lagga’. One of the appellants commanded her at pistol point and made her to sit on the motorcycle at the road whereon the accuseds /appellants also sat and thereafter she was driven to the house of the appellant Jaleshwar 19 Singh. This witness has further deposed that she could not identify as to who amongst the appellants dragged and lifted her and thereafter made her to sit on the motorcycle. At the house of appellant Jaleshwar Singh she was untied. Paragraph no.6 of her deposition would show the factual scenario which prevailed at the place (house of appellant Jaleshwar Singh) where she was captivated for 30 days and in the meanwhile ravaged on several occasions by all the three appellants. According to her, the wife, mother and a girl (10 years old daughter) of appellant Jaleshwar Singh were other inmates of the house. They did not enquire about her. The house in which she was confined was thatched house which were made of bamboo clumps/tatti. The room in which she was kept was also used as a room for cooking and eating food. On the day of occurrence while going to consult the doctor she had put on all the jewelleries, details whereof have been set out in the said paragraph which include necklace, golden ear rings, golden bangles, lockets, nose pins, pajeb, silver pajeb, Silver belt (jerkin) etc. She was, however, relieved of all her belongings including ornaments/jewelleries at the house of appellant Jaleshwar Singh and was offered only one sari which she used to wear all through her 20 stay for 30 days in the said house. She made efforts to