l CF0000063172 BEPOR&'Tfla HIGH eOUKE OE JUDICA.TURE AT t&BA-LPOR. M.P. III:'W s '^. c v ApPSLlant ( IN ^.IL) v^ ^,: s ^•'^^-X CRIMINA.L A.PPE&L SO. &3'/ OF 2000. .• ^f Vistinu Kuaap-^S/0 Kaualifas Dhrfffiahre, fIJ .agea afcout 22 years ,-resident of vlllage Kutela,, P.S. Hasturi, District /• Bilaspur. /- . ! .?' v ^ ^ p* . fl ''•i! fv/r 'y // RESPOMDSN'T ( Versus ) , ' / - ' THE STATE OF mDHYA. PPAHESH, [iT'f ttirougfa P.S. Masturi, Dis-tt. Biiaspur. jr'K C&IMINA.L &PESAL WQB.S. SECTION 574( 2)_ OFTtIE CODE OF CRIMIN&L. paOCEOURE. ^Su'kUIWKW .•^?a HI6H CWKT OF CHHATTIS6ARH. BILASPUR Criminal gpDeal No.637/2000 • Vlshnu Kunfiar State cf Madhya Pradesh (Now Chhatf'i^arh) JUD6MENT ^/ tsys^: Postfor (7.01.2006 Sd/- Suni! Kuniar Sinha Judge '^ ^:^ HI6H COURT OP CHHATTISfiARH. BILASPUR Crinninul aDiwal No.637/2000 Vishnu Kunar Vs. State of Mddhya Pradesh (Now Chhffttisgorh) Aimeewnce'- Shri Mhia Kasar Bo(g, cwinsel for the appeUmit. Shri Vinod Shrivastwa. 6ovt. Advocate for the State, ^r»viys ^ JUD6EMENT (^.01.2006) Sunil Kumar Sinha. J. (1) The appellant calls in question the legality of the judgment of convictiori ond prder of sentence dated 3.1.2000 passed by the Sessions Judge, Bikxq»ur,in Sessions Trial No.5C®/98,convicting the dppellont u/s 376 of the I.P.C. ouid sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.20,000/- ond in defoult of payment of fine to undergo additional RJ. for two years. (2) The brief facts are that the prosecutrix Srat. Mcnju (P.W.4), a young girl cged about 19 years was married to younger brolher of the accused just one month prior to the date of incident. She was the resident of village Lariya and the husband and in-laws were the residents of viltage Kutela. Aft-er •the marrioge, she was residing in her jn laws ptace in village Kutela. On 23.7.1998 die was not feeling well anidTfor this reason she was asked by her mo'riier-in-law and other family members to sleep in a different room separately and not to close the doors from in side. On this, she had gone to sleep in a different room separately and the other family merabers, like father- in-law, mother-in-law, brother-in-taw (Oecw) and the husband were sleeping in the nearby Verundah. At about 12 in the mid night, she K:; '• :'i • i-^'^Se* found that some body had come to her bed. She could recognize that he was the brother in law (Jeifi, the present oppellant) ond she at once resisted his action on which he gagyd her mou'th ond uh'imately after over-powering her committed forceful sexual intercourse against her. It has coiiie in the prosecution cose -that when she had cried, her mother-in-hw could notice it ond she had said "/4A Vishnu DeW. On this the oppellant had scolded her mother-in-lcnv soiying •^n<i^"^iup£JiapJakar Sojtt",w\d no bodycould come to rescue her. Even after the sexual intercourse, dte was forcefully detained there and when she found that the oppellant hos slept, she ran cwwy from the house oind went to the house of -the neighbour namely Ram Boi (P.W.5) at 4 a.m. ond narrated the story to her. On the next moming there w<xs a village Panchoyat in which two of •the witnesses namely Malik Ram (P.W.l), Jhhaptan (P.W.6) were present. Before them also, •the prosecutrix nar'mtBd the entire story and she denied to go to the house of the husband. However, on the next ctay of the Panchcyat, the mother-in-law and the husband alongwi'th the present appelbnt (Je-lfi} went to the house of Ram Bai (P.W.5) and forcibly took the prosecutrix to their house. The allegations are that on the said night also, the cypellant tried to sexually aasoult the prosecutrix and on her hueond cry, Malik Rom (P.W.l), Rcun Bai, (P;W.5) and Jhhoptan (P.W.6) went there and saved her and thereafter only, the prosecutrix went to the Police 5'hation on 26.7.1998 i.e., on the next moming at about 9.15 a.m. end lodged Ihe F.I.R. vide Ex.P.8. The police station is at a distance of 20 Kms., from the vilhge where the incident took place. The prosecutrix was medically examined by t)r. Smt. Shaila Milton (P.W.8); who found Ihat thece waa a cut injury admeaairing 1" x i" x i" at Ihe back portion of the left' writ of •the prosecutrb<. Her vaginal examination was vepy painful as she was comptaining severe pain extending upto thighs. On local examination, hymen was found H'ni ^rf;s:i 3 •^,. rup-hjred and there was swelling ond the vagina was admitting two fingers w'rth a 9reat difficulty. The petty coat of the prosecutrix was also hming blood like and semen like stains which were shown by her to (P.W.5) Smt. Ram Bai, at the first instance on 24.7.1998 when she was narrating the story to her and the same was also sent to the doctor for its examination ouid the doctor on her examination also marked blood like and semen like stains on the petty-coat which wos 1<. advised for its chemical examination. The accused appelkint wcxs arrested on 27.7.1998 at about 12.30 p.m. He was also sent for medical examination. E)r. Hemant bixit, (P.W.2),exnmined him who found two bluidi marks (Neelcngu Nishcn) adm«isuring2cm x 1 cm and 3cm x lcm on the back of the appellant. (3) At •the'trial, the charges were franned u/s 376 of I.P.C. Relying on the testimony of the prosecutrix (P.W.4) supported by the testimony of (P.W.5) Ram Bai and the Doctor (P.W.8) Smt. Shaila AAilton, tiie learned sessions judge held the appellcuit guilty of the aforesaid offence and convicted and sen-tenced him as afore- mentioned. (4) Leamed counsel for the appellont roised 3 points. His first submission was that there is delay of tWo ctays in lodging the F.I.R. and the same is fatnl to the prosecution, The second submission was that the version of the prosecutrix is not reliable being unnatural. Al'hematively, he also argued that the sentence awarded to the appellant is too harshond if Itie conviction is upheld, the same requires a consideration by this Court'. ^ p) So far as first point regarding detay in lodging the FJ.R. is concemed, it would appear that the alleged offence has been .•s^^ -4. ^ ^'"'- :v' 1-> commirted at about 12.00 in the night of 23.7.1998. and the F.I.R. has been lodged at about 9.15 a.m. on 26.7.1998 in police stirt-ion, Masturi, which is at a distnnce of 20 kms from the village. Leamed counsel submitted that if the prosecutrix was in fact, victim of •the crime, she should have lodged the report earlier and the cfelay in lodging the report' makes the story doubtful. I/f, (6) It has been held by the Apex Court- in the matter of Srt Naravem Salw and mothw -Vs- State of Triowwi.(S004) 7 SCC 775-Awt mere delay in lodging the FIR is really of no consequence,if the reason is exptained. Dealing the point of detay in the said cases, the Apex Court further held that in our country if the prosecutrix ..);; happened to be a married person, die will not do anything wilhout informing her husbond. The Apex Court- also held that merely because the complaint was lodged less than promptly, does not raise the question thoit the coroplaint was false. The reluctance to go to the police is becouse of societ/s att-itude towards such women. It casts doubt cnd diame upon her ralher than comfort' and sympathy. Therefore, the detay in lodging complaint in such cases does not necesairily indicate that her version is false. (7) In the motter of 5ftnte af Puniab -Vs- Ramdw Smah. (2004) J SCC 421. the Apex Gourt- taid down that delay in lodging •ttie FIR cannot be used as a ritualistic formuld for doubting the prosecution caseand discarding the same solely on the ground of delay in lodging the first information reporf'. Delay has the effect of putt'ing the court- on its 9uard to search if any explonation has been offered for the delay.ond if offered, whfether it is satisfactory or not. If the prosecution fails to satisfoctorily explain •the delay cnd there is possibility of embellishment in the prosecution version on account of ^--f ll'l'li' ssii SES'Ssissii^saK's'.'.s:'';;'::":-:. ^ '•SSSiS- "i i li Ys. such detay, the sarae would be fatal to the prosecution. However, if the clelay is explained to -the satisfaction of -the court, the sarae cannot by itself be a ground for disbelieving and discarding the entire prosecution version. (8) Therefore, the situation emerges that if -there is some dekiy in lodging the FIR <nid reasons for the delay are explained in the case, the detay would be of no cpnsequence. If we examine the scenario of the present case, it would appear on the evidence of •the proacutrix that ewn affer performing the forceful sexual intercourse at about 12.00 hrs on 23.7.98, •the appetlant did not allow the prosecutrix to move from her bed ond he constrained her to steep with him but when he slept at about 4.00 a.m., •the prosecutrix ran awoy from •the room and went to +he house of her neighbour namely Rambai (P.W. 5) <md rwrrated her entire story. It has come in •the evidence of Rambai that they were sfeeping in the house at about 4.00 OLHI., when the prosecutrix came over there and got -them cwoken and had narrated •the stor^ to atl the family members who kept her with them. She has also deposed •that the prosecutrix has shown her petty-coat to this witness which w<xs blood stain. Looking to -the situation, she kept the prosecutrix with her for a ctay and ultimately on the next doy, the proseaitrix wois forcefully taken by the husband and the <q»pellantto +heir house. TTie altegations are •tfiat in the night of -this dcy also, the appellcnt again tried to molest the prosecutrix on which she made hue and cry and •thereafter, she could be saved by the villogers ond ultimately a village /'ancAayCT/'was conducted and -then only the report' wtis lodgsd in the moming of 26.7.98. It has also come in the evidence of prosecutrix that the husband of -Hie prosecutrix was stoppmg her to lodge a report' and was saymg that she is making fatse altegoitions. If we see the sequence of the events which took place since 12.00 in the night of 23.7.98 till the moming at 9.15 a.m. of f-t;1 y^". ,!\ ^ 26.7.98, it would appear that the delay in lodging the report was caused due to the fact that the husband of the prosecutrix was not believing her story and was constraining her for not lodging the report against his brother and ultimately when the second attempt was made by the appellcint on the next day, the prosecutrix, even without taking assistance of her husband went to the police station ond lodged the Iff, report. The conduct of tiie prosecutrix appears to be normal. In a lower middle closs society, where all the family members including the husbond are hostile to the normQl conduct of the daughter-in-law, a newly wedded daughter-in-law can do nothing more in a remote new village, thon what has been reofionably done by the prosecutrix at the earliest opporturiity after the incident. On the basis of evidence of the prosecutrix (P.W. 4), Rambai y.W. 5) ouid AAalik Ram (P.W. 1), and in the scenarioof sequence of events the delay in lodging the FJ.R., is exptained and the same is of no conseqyence. (9) Now coming to the second point otoout the relkibility of the prosecution case, it has been held by the Apex Court in the matt-er of Ramdev Sawfi fStffra) that if •the prosecution has succeeded in making out a convincing case for recording a finding os to the accused being guitty, -the cpurt diould not leanin favour of acquit+al by givin9 weight to irrelevant or insignificant circumstances or by resorting to technicalities or by (Ksuming doubts ouid giving benefit thereof where none reasonably exists. A doubt. os . understood in criminal jurisgrudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wotves in the society being on the prowl for easy prey, more so when the victims of crime are-helpless females or minor chiJdren. The courts have to displdy a greater sense pf reqsonsibility and to be more sensitive while dealing with charges of sexual assault on women, particukirly oftender age and children. m -7- 'A V.\. (10) In the niatter of Sri Natwyen Saha CSiyw), the Apex Court- held that the prosecutrix of the sex offence cannot be put on a par with accomplice. 5he is'in fact, a victim of the crime ond her evidence must receive the same.weight <ss is attached to on injured witness. It can be occepted without corroboration if the court', keeping in mind that it is dealing with the evidence of a person who is interested in •Hie outcome of the chargp/levelled by her, is satisfied that it can act on her evidence. (11) In the matter of Slvte af M.P. -«?- t)aval Sahu. 20<S AJK SCW 4839. the Apex Courf while dealing with the matter under Section 376 of the I.P.C. held that once the statement of prosecutrix in^pires confidence and accepted by the Courts assuch, conviction can be passed only on the solitai^ evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court's for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for j^dicial reliance is not a requirement of bw but a guickmce of prudence under the given facts oaid circumstonces. (M.) Leamed counsel for the appellant assaited tiie testimony of the prosecutrix on the ground that her version appears to be unnatural. His contention was that the story set-forth about the rope by the appetlant is false because normatty it would not be possible for a man to^comroit forcefulsexual intercourse in •the hours where -rtie mother- in-lqw, father-in-law and the husbond are also present cnd are sleeping in anearby Vamndofi of the room, where the rape is alleged to have been committ'ed. If we 90 through the evidence of the prosecutrix, it would appear that when for -Hie first tiine, she could recognize that her brother-in-law hnd entered into the room and he has started over powering her for sexual mtercourse, she.had made a cry which was 1-1 Y .^s' noticed by her mother-in-law and then the mother-in-law asked the appellant, but she was scolded by him dnct the appellant said her ''Chup Oiap Jakcr So Ja' caid thereafter the sexual intercoura was committ'ed. This version of the prosecutrix would show as to how helplessly she WdS reading in the house of her in-laws. This also goes to aiggest that in fact, ever/one in -the fomily was dominated by the appellant cnd no one was daring to oppose the dctions of the appeltant *!. even of rape by him agamst his younger brother's wife. Though the husband, mo'ther-in-law ahd father-in-fciw have not been examined in this case, merely on account of this, the prosecutrix cannot be disbelieved. Why she will make a false report against the brother-in- faw (Jeth) is unanswerable. Moreover, if everything was normal, then the prosecutrix was having no reason to 90 to the house of her neighbour in the moming at 4 'O" clock and to proy for a Aelter therein and to narrate the entire story to them. Even otherwise also, if we look into the medicat report of the prosecutrix as well as the oppellont in which injuries were noticed by the Doctors,that too along wfth the immediate disclosure of •the story to her neighbour also rules out a possibility of her being a consenting party. The facts and circumstances of the case woukl show thnt the appellant was enjoying a dominant position in the family and nobody could dare to stop him for the acts committed by him and -the prosecutrix, when not rescued by her mother-in-law or husband or father-in-law on the date of incident, even after the mother-in-law has noticed the incident, in a very ncttural manner, she went to her neighbour and there she took dielter for a doy. But she was ogain forcefully brought back by the appellant and her husband to their house ond the appelhnt had ogain tried to molest her for the second time ond when hue and cr/ were made, the persons of the village came over there to save the prosecutrix and then only the FJ.R. was lodged. The conduct 6f the J ^ prosecutrix is normal and her evidence in^iires confidence <md acceptance by a courl' of law. The trial Court has rightty believed the testimony of the prosecutrix, though taking corroboration by the statement of P.W. 5, P.W. 1 and the boctor. Therefore, this second argument advonced by the leamed counsel for the appelhnt cannot be dccepted. (13) Now coming to the hst point re9ardin9 the quantum of sentence, the provisions.of'&ib-section (1) of Section 376 I.P.C. provides that whoever, except in the cases provided for by sub- section (2), commits rape. diall be punished with imprisonment of either description for a term which shall not be less tban 7 years but which moy be for life or for a term which nwiy extend to 10 years and ..1. • . . . • . . shall also be liable to fine. In the category of cases covered under sub-section (2) of Section 376, the sentence cannot be less than 10 years but whidi may be for life ouid shall also be liable to fine. The proviso aippended to sub-section (1) lays down -rtiat the Court may for adequate <md special r«xsonsto be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a simitar proviso to sub-section (2) which empowers the Court- to award a sentence of tess than 10 y«xrsfor adequate and special reasons to be mentioned in the judgment. .0' '"^ (14) The leamed Sessions Judgs after considering the over-all situation ond after placing full reliance on the testimony of the prosecytrix has awarded a -term of 10 years R.L along with fine of Rs 20,000/-. It is a cose in which.d newly wedded 19 years old girl within one month of the marriage, has been aibjected to rope by her brother-in-law (,Jetfi} that too in the matrimonial house where she was residing with the mother-in-law, father-in-luw ond the husband in a ,^/ joint family but she coutd not be resaied at the time of commission of -/o rope by her brother-in-law ond had to 90 for shelter to the house of the neighbour. In the said circumstance, if the aforesaid punishment has been awarded by the Sessions Court, it does not call for ouiy interference by this Court. (15) I do not find ony merit in the appeal. The appeat is dismissed and the conviction and sentence awarded to the appellant are hereby confirmed. ' , i . Sd/- ..:. ! Sunii Kumar Sinha Judge , \,