Criminal Appeal (SJ) No.353 of 1998 ****** Against the judgment of conviction dated 22.7.1998 and order of sentence dated 30.07.1998 passed by Sri Krishna Nand Pandey, learned Additional Sessions Judge 3rd, East Champaran, Motihari in Sessions Trial No. 273/96/76/96. ****** Ramayee Thakur, Son of Banka Thakur, resident of village – Musharwa, P.S. – Nakardei, District – East Champaran. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mrs. Rubi Kumari, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A. P. P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Nobody appears on behalf of the appellant. Mrs. Rubi Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 4. The prosecution case as alleged by the prosecution Malti Devi is that on Wednesday (01.11.1995) at about 2:00 P.M. the victim had gone to take grass and after taking the grass returned at 2:00 P.M. and reached at the orchard of Mohan Thakur. Ramayee Thakur came out 2 from the said orchard and threw the basket of grass from her head and caught hold of her and took her in the field of Jay Karan and committed rape by removing her clothes. Thereafter, victim came to her house and narrated the fact to her mother P. W. 7 as her father P. W. 8 and brother were not at the house and had gone for work. When her father and brother came the mother disclosed about the occurrence then his father and cousin disclosed about the incident of rape in the village for convening Panchayati. The accused learnt about the disclosure of rape in the village. Ramayee Thakur, Shambhu Thakur and Prabhu Thakur having armed with iron rod and Phatii came to the house of prosecution and assaulted Prabhu Sah on back and hand and thereafter Chota Lal Thakur, Acha Lal, Nawal Thakur, Moti Lal Thakur, Vijay Thakur, Banka Thakur came, abused and assaulted with fists and slaps and the witnesses Maku Sah, Maghu Sah have seen the occurrence. The further case is that the villager wanted to resolve the matter by Panchayati and so there is delay in lodging the FIR. However, the occurrence is dated 01.11.1995 but the fardbeyan was recorded on 03.11.1995. 5. After the fardbeyan, the FIR was lodged and after investigation, the charge-sheet was submitted under Sections 147, 341, 447, 323 and 376 of the Indian Penal Code. The charge was framed for offence under Section 376 of the IPC against Ramayee Thakur with regard to the occurrence dated 1st November, 1995 against the ten accused persons 3 named above for the offence under Sections 147, 341, 447 and 324 of the Indian Penal Code. 6. P. W. 6 is the victim. She in her evidence supported the prosecution case about the rape by Ramayee Thakur at sugarcane field while she was returning after cutting grass. She has stated that while she was coming after cutting grass then he was caught hold and dragged in sugarcane filed and was raped. Thereafter she came weeping to her house. She narrated the fact to her mother. The father and brother were not at the home as they had gone to work at different places. The father and brother came at 7:00 P.M. then they were intimated. 7. The father P. W. 7 has supported the prosecution case when he retuned from Virganj from his work at about 7:30 A.M. then his daughter and wife disclosed about the occurrence of rape and then he intimated the villagers for convening Panchayati then Ramayee Thakur assaulted Prabhu Sah by iron rod and then the case was lodged. 8. P. W. 8 is the mother of the victim. She deposed that the victim after the occurrence came weeping and narrated about the rape to her as the father had gone out and when returned he was intimated. 9. P. W. 4 has stated that Malti Devi is his cousin and disclosed about the rape and Panchayati convened in this regard. 10. P. W. 5 has stated that on the next day of the occurrence he learnt about the rape from P. Ws. 7 and 8 and a Panchayati was 4 convened. However, the daughter and the Investigating Officer have not been examined. 11. The defence of the accused person is complete denial of the occurrence and assertion that there is delay in lodging the FIR as well as the victim was of suspicious character. The non-examination of the doctor, I.O. and independent witness left to a conclusion adverse to the prosecution. 12. The trial court after considering the oral and documentary evidence convicted the appellant for the offence under Section 376 of the Indian Penal Code and acquitted the other accused persons. 13. The learned amicus curiae, however, contended that the doctor and I.O. have not been examined in this case and there is no independent corroboration. The victim washed her clothes before examining by the doctor and before reporting the matter to the police. It has further been contended that the victim having armed with sickle and Khurpi did not resist and hence it shall deem to have been a consenting party. 14. However, the point raised before this Court was also raised before the Sessions Judge and Sessions Judge having been satisfied with the evidence of the prosecution and further considered that no family in India will alleged a rape without an occurrence as it effects her character which is most precious to her and hence convicted and 5 sentenced the appellant as stated above. 15. However, I perused the evidence, the prosecutrix in her evidence supported the prosecution case and there is nothing in her evidence to disbelieve her. Her evidence inspires confidence. Just after the occurrence she came to her house weeping and informed her mother about the rape and when her father came from work at Virganj then he was also intimated. The father and mother also in their evidence deposed about the intimation by the victim and the father convened Panchayati and P. Ws. 4 and 5 also supported the prosecution case as disclosed to them after the occurrence and supported the prosecution case about convening a Panchayati and hence, the evidence of the prosecution party and prosecutrix inspire confidence. 16. The criticism is that the victim stated in her evidence that she had gone to cut grass with sickle but she did not use to resist or brave enough to counter the accused with sickle and Khurpi. However, it is a matter of common experience that how a person will behave in an adverse situation will not depend on the wish of the defence. But the behaviour of person varies from man to man. In an adverse situation some persons may become nervous and may not resist at all and merely because a person did not resist it does not mean that he gave consent to the parties for rape. 17. There may be some persons who resist to some extent but 6 succumbed in a situation. However, there may be some persons who are brave enough to counter the accused even in totally adverse situation even when the accused persons armed with deadly weapons. There may be a person who can fight even putting risk of his life and hence the evidence of the victim cannot be rejected on the ground that she did not act in a situation in a particular manner. 18. The further criticism is that the I. O. has not been examined. However, non-examination of the I. O. has not caused any prejudice to the appellant. The prosecutrix cannot be blamed for non-examination of the I. O. as it is beyond her control to produce the I. O. for examination. 19. However, having regard to the fact that the occurrence took place on 01.11.1995 at 2:00 P.M. when the father and brother of the prosecutrix had gone out. They came in the evening and then learnt about the occurrence. On the next day they tried to convene a Panchayati intimating the villager but the accused persons being furious assaulted and not participated in the Panchayati then the case was filed and hence the delay in lodging the FIR and non-examination of I.O. have not caused any prejudice. The prosecution case cannot be rejected on these grounds. 20. It has been contended that the appellant has falsely been implicated. However, having regard to the evidence of the prosecutrix has supported the prosecution case as well as evidence of the other 7 witnesses the probability of the case is in favour of prosecution and there is nothing to suggest that false story has been cooked up for false implication. It is a matter of common experience that a girl in traditional society will not allege rape as it affects her chastity which is most valuable to her and has far reaching consequence. 21. The further criticism is that the medical evidence has not been brought on record to prove corroboration. However, the victim is the girl of lower caste in a remote village. She is not expected to know that she should rush to doctor after the rape for medical examination and she should not take bath or wash cloth till the police seized the cloth. The victim having taken bath after incidence is natural. However, the victim is a married lady and it has come in evidence that she lived five months in Sasural before the occurrence. It is likely that there should be no injury on her private part and in such circumstance the non-examination of the doctor does not prejudice the accused. 22. However, the question for consideration of corroboration is concerned it is well settled that the corroboration is not a sine quo non for conviction in rape case. It is well settled that to ask for corroboration in cases of the sexual assault is adding insult to injury. The girls in traditional society in India are extremely reluctant to admit rape or even incidence which touches her chastity and no woman reports rape falsely as it has consequence of losing her respect in 8 society as well as amongst the most important near and dear even the love and affection of the husband. However, under the present facts and circumstances of the case, the evidence of P. W. 5 the prosecution has been corroborated by the mother P. W. 8 that the prosecutrix immediately after the occurrence reported and disclosed about the occurrence, is admissible under Section 157 of the Evidence Act. 23. Hence, taking into consideration the fact and circumstances, I find and hold that the prosecution has been able to prove the charges beyond reasonable doubt and order of conviction and sentence does not call for any interference and hence this appeal is dismissed. 24. Mrs. Rubi Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 6th September, 2011. N.A.F.R./Kundan.