@ ./1"’ $5ng1¢a Beach 1N THE HIGH COURT OF JUDICATURE AT BILASPUR(C.G.) CRIMINAL APPEAL N0. 3(Ki/0F 2006 Durga Lodhi, aged about 32 years S/o Shiv Prasad Lodhi, Occupation — Hamali R/o. Village — Nandani Khundani; Thana Nandani, District Durg (CG). VERSUS ESPONDEN State of Chhattisgarh: through District 'Magistrate Durg, Distt. — Durg (CG). a f MEMORANDUM OF CRIMINAL APPEAL U/S. 37 OF Cr.P. C. 1974 RT @ HIGH COURT OF cHHATTlSGARH : BILASPUR SINGLE BENCH: N’BLE SHRI MANINDRA MOHAN SHRNASTAVA J.‘ Criminal AQQeal NO_305 of 2006 A ellant In Jan Durga yodhi Versus Resgori‘aént ‘ State ofChhattisgarh $ POST FOR JgDGMENT ON 3%?EBRUARY, 2011 M’j ”€317 dra MOha“ shriva$tavm A x Mam“ Judgg 9h HO HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan ShrivastavgLJ. Criminal AQQeaI NO.305 of 2006 Appellant(_|n Jail) Durga Lodhi Versus State of Chhattisgarh Responden' Memorandum of Criminal Appeal under Section 374 of the Code of Criminal Procedure Present:- Smt. Indira Tripathi, counsel for the appellant. Shri A. K. Shukla, Panel Lawyer for the State. ~' JUDGMENT (Delivered on g -02-2o11) $ This appeal is directed against judgment of conviction and order of sentence dated 27-08-2005 passed by the 7th Additional Sessions Judge,- (F.T.C.), Durg in Sessions Trial No.130/2004, by which, the Court below after holding the appellant guilty for commission of offence punishable under Section 376(2)(g) and 392 of the i.P.C. and has sentenced to undergo R.l. for 1O years and fine of Rs.5,000/—, in default of payment of tine, additional R.l. for one year under Section 376(2)(g) of the i.P.C. and to undergo R.l. for 5 years and fine of Rs.500/-, in default of payment of fine, additional R.l. for six months under Section 392 of the i.P.C. Both sentences were ordered to run concurrently. 2. Case of the prosecution is that the prosecutrix. P.W.5, Rajo Bai resides in Village-Sonesara and is widow of one Anand Ram Kewat, working as labour. On 25-10~2003, while the prosecutrix was returning to her village after attending 10‘“ day ritual upon death of her elder brother, resident of Village Medesara, at about 2 PM. in the day, when she was collecting sticks, appeHant—Durga Lodhi along with Baldau @ Ballu, resident of Village-Nandini-Khundini arrived at the spot and caught hoid‘of her and committed rape repeatedly on her one after the other. It is further alieged that after committing rape, the appeiiants also looted goiden locket worn by the prosecutrix. After the incident‘ the prosecutrix reached her village in the cycle of one Lavkush, P.W.11. As she has badly ravished, she became sick and report could not be lodged immediately. After eight ~ days of the incident, the prosecutrix lodged report on 03-1 1—2003, Ex.P—9 recordedt‘by Anil .Sharma, Station House Officer, P.W.16. The prosecutrix ‘ was sent for medical examination. She was examined by Dr. Padmini Singh, P.Wf13, who gaVe report EXP-15. Wearing apparel were also sent for medical examination. The appellant Was also medically examined by Dr. S. K. Jamgade, P.W.9, who gave report Ex.P-14. On a memorandum given by the appellant vide Ex.P-10, a golden locket was seized vide EXP-11 in the presence of seizure witnesses-Gendlal and Ganesh Ram. Seized Articles were identified _by the prosecutrix in the presence of Executive Magistrate, J. S. Rajput, P.W.4 and the proceedings were recorded in report Ex.P-16(B). After conducting usual investigation and recording case diary statement of prosecution witnesses, who were said to be acquainted with the case, the Police filed charge sheet alleging commission of offence under Section 376(2)(g) and 392 of the l.P.C. against the appellant and co-accused-Baldau @ Ballu. Ballu has throughout remained absconding. The Magistrate committed the case to the Sessions Judge, Durg and was received on transfer by 7th Additional Sessions Judge, Durg for trial in Sessions Trial No.130/2004.' (m 3. The learned trial Court framed charges against the appellant alleging commission of offence stated hereinabove. The appellant abjured guilt. In order to prove its case, the prosecution examined prosecution witnesses namely Ram Avtar Chouhan, P.W.1, Smt. Dulari Bai, P.W.2, Sanat Kumar Soni, P.W.3, J. S. Rajput, P.W.4, Rajo Bai, P.W.5, Dhanesh Kumar, P.W.6, Meghnath, P.W.7, Sukhbati, P.W.8, Dr. S. K. Jamgade, P.W.9, Dineshwar Singh, P.W.10, Lavkush, P.W.11, Kewaldas Manikpuri, P.W.12, Dr. Padmini Singh, P.W.13, Bhagwat, P.W.14, Netram, P.W.15 and Anil Sharma, P.W.16. ‘ 4. In his examination under Section 313 of the Cr.P.C., the appellant 3 denied the incriminating evidence and circumstances appearing against him. He admitted that Ganga Ram was his father-in-law but he did not have good relations with him. He stated that he is not in good terms with his father-in—law—Ganga Ram. He has no dispute with prosecutrix—Rajo Bai and does not know why Rajo Bai lodged report against him. 5. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant strenuously argued that conviction of the appellant is not sustainable in law, as the prosecution has failed to prove beyond reasonable doubt that the alleged rape was committed by the appellant. Learned counsel for the appellant argued that the prosecutrix Rajo Bai,P.W.5 has stated in her evidence that she never saw the appellant before the date of incident and she did not know him even by name. Therefore, on what basis, name of the appellant was disclosed by the prosecutrix while lodging F.l.R. is quite vague. Learned counsel further argues that though the prosecutrix say 4 @ that Ganga Ram told her that the offence of rape was committed by the appellant-Durga Lodhi and Baldau @ Ballu, the same is highly improbable and not at all reiiable because it has nowhere been stated by her as to on what basis Ganga Ram stated that the offence was committed by the appellant when there is no evidence that Ganga Ram had seen the appeiiant‘ at the place of incident or soon before or thereafter and particularly when, Ganga Ram has not been examined by the prosecution, s the very involvement of the appellant in the offences, irrespective of whethertath‘e prosecutrix was subjected to rape or not, becomes highly doUbtful and the benefit of doubt must be given to the appellant. Next submissiongof learned Counsel for the appellant is that 7-8 days delay in lodging the FIR and the conduct of the prosecutrix itself is doubtful because for 3-4 days, she did not speak about the incident to anybody. Next submission of learned counsel for the appellant is that the main prosecution witnesses, who are alleged to be approached by the prosecutrix and to whom the prosecutrix is said to have disclosed commission of offence, have not supported the case of the prosecution and turned hostile. Learned counsel further submits that in the absence of any identification of the appellant, very conviction of the appellant is not sustainable in law. it has also been argued that the prosecutrix has been tutored which has come in her evidence. Further submission of learned counsel is that the witnesses of various proceedings particularly memorandum, seizure witness namely Dhanesh Kumar, P.W.6 have not supported the case of the prosecution and other witness namely Gendlal has not been examined by the prosecution. Therefore, even the allegation r of commission of offence under Section 392 of the l.P.C. is not made out. It was lastly contended by the learned counsel that appellant has already undergone more than seven years R.l., considering his age, conviction of sentence be reduced to the period already undergone. In support of her contention, learned counsel for the appellant relied upon decision in the case of Dilip and another v. State of M.P., AIR 2001 Supreme Court 3049, Sanjay Pathak vs. State of C.G., 2006(1) C.G.L.J. 375 and Devinder Singh and others v. State of Himachal Pradesh, AIR 2003 Suprem“e‘Court 3365. 6. On the. other hand, learned State counsel supported the impugned $ judgment of conviction and order of sentence and argued that the prosecution has proved that the prosecutrix lodged the FIR‘ Ex.P-13, in which. the prosecutrix clearly stated the name of the appellant. lt is further argued that the prosecutrix in her examination, has clearly stated that while she was feturning to her village on way,. she was caught hold by the appellant and other accused—Ballu and after covering her face by cloth, she was picked up and taken to nearby field and was badly ravished by two accused persons including the appellant more than once. It is also argued that though there are certain discrepancies in the testimony of the prosecutrix that by itself is not so material as to disbelieve her testimony. Further submission of learned State Counsel is that the where the ' testimony of the prosecutrix, who is an injured witness, is found reliable and trustworthy, it is not necessary to look for any corroboration. lt is also argued that otherwise also, the circumstances and the evidence on record do not warrant any need to look for corroboration for the version of the‘ prosecutrix. It is further submitted that the medical evidence which has come on record shows that the prosecutrix, who was an old aged lady of 66 years was ravished by the appenant and other accused more than once and was subjected to very forceful and violent sexual assault resulting in injury on the private parts of the prosecutrix and it was bleeding and torn. The prosecutrix, according to him, was an old lady of 66 years of age, and the manner in which, she was raped, gave her great shock in addition to agony and pain due to injury on her private parts, because‘kjt which, she could not immediately disclose about the incident x to other persons but delay in lodging the FIR has been fully explained by the proseCLftriX herself, 'which is quite probable, and therefore‘ mere delay would not discredit the case of the prosecutrix. ‘ 7. Present is a case of rape on an old aged woman of 66 years and the medical evidence which has come on record shows that the old lady; was subjected to brutal act of ravishing her both in mind and body. The principles which are required to be applied while scrutinizing the evidence of the prosecutrix in the case of commission of offence of rape, have been succinctly laid down by the Supreme Court in'plethora of decisions. In the case of State of Punjab v. Gurmit Singh & Others, 1996(2) SCC 384 while allowing the State’s appeal against acquittal and convicting the accused under Section 376(2)(g) of the l.P.C., the Supreme Court observed thus:- “Of late, crime against women in general and rape in particular is on the increase. lt is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her 7 W honour. It is a sad reflection on the attitude of indifference of the society toWards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim‘s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity The courts should examine the broader probabilities of a. case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. lf evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. “ u c 8. The Court in that case also observed that the alarming frequency of crimes against women had led Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matter. The observations in, Gurmit Singh case (supra) were reiterated in Ranjit Hazarfka vs. State of Assam (1998) 8 SCC 635, in following terms:- uThe courts must, while eVamating evidence, remain alive to .the fact that in a case of rape, no self—respecting woman would come fonNard in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. ln cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowedrto throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should no‘tuqverlook. The testimony of the victim in such @633cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no diffictflty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self—inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every caSe of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the I victim of sex crime strikes the judicial mind as probable. “ Highlighting the aforesaid principles laid down in the judgments cited abovefln the cas'e‘of Raju vs. State of M.P., (2008) 15 SCC 133, the supreme Court held:- “The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. lt cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. lt must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct $9. W7 or without any embellishment or exaggeration. Reference has been made in Gurmit Singh case1 to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114- A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised,against the accused. These two sections, thus, raise a clear presumption in favour of the pgosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114—A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement-can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that these cases, and others such as this one, need to be examined." 10. This Court would now proceed to examine the circumstances and the evidence which has come on record led by the prosecution to examine the veracity of the case of the prosecution in the light of the principles as laid down by the Supreme Court in various decisions. According to the case of the prosecution, the FIR was lodged on 03—11-2003 at 09.30 in Ex.P-9 by the prosecutrix. ln the F.l.R., it has'been recorded that while the prosecutrix was returning from house of her elder brother on 25-10-2003, she was intercepted by the appellant and one Ballu. The prosecutrix was “ collecting sticks'and at that time, she was picked up and taken to the field of Bisambhar Sahu where she was made to lie on the ground and her mouth was gagged with cioth (sari) and thereafter, she was intimidated, her clothes were removed and after that the appellant committed rape followed by Ballu Sahu. Thereafter, one after the other, the appellant and the other accused committed rape on her three times each in a very cruel manner, and thereafter, looted golden locket. As she was badly ravished, she fainted and her private part was bleeding. When she regained consciodshess, she came on the main road and asked for lift from one Rohit, who did not stop and thereafter, Lavkush, P.W.11, who was crossing on his cycle, stopped and along with that boy, she came to her house. Because of her bad condition and to save her from insult in the village, initially, she did not disclose about the incident and after about 2-3 days, she informed to other persons whereafter report was lodged. The prosecutrix—Rajo Bai, P.W.5, in her testimony deposed that she had gone to Dhamdha Police Station along with Ram Avtar (Kotwar) to lodge the report and that she is an illiterate lady, uses her thumb impression. She has further deposed that Dulari Bai had also accompanied her to the Police Station. The contents of the FIR were read over to her in the Court and she verified that she got the report Ex.P-9 written. Ram Avtar Chouhan, P.W.1 states that he had also gone along with Rajo Bai in the' Police Station, Dhamdha. 11. Meghnath; P.W.7 has deposed that Rajo Bai had gone to the Police Station, Dhamdha for lodging the report and after returning from Police Station, this was told to him by Ram Avtar, P.W.1. Sukhbati, P.W.8 has s .4 i a . @ also deposed that 2—3 days after the incident, Sarpanch and Kotwar had gone to the Police Station for Iodging the report. Bhagwat, P.W.14 has stated that the prosecutrix is her grandmother and she stated in the Police Station that she was subjected to rape and her locket was looted. investigating Officer, Anil Sharma, P.W.16 has also deposed that he had written the FIR in EXP-9, as was stated to him by the prosecutrix-Rajo Bai. Thus, from the aforesaid evidence which has come on record, it is s proved that the‘FIR was lodged by the prosecutrix alleging commission of offence offrape on her by naming the appellant and other co-accused ‘ Ballu. £ 12. The 'Prosecutrix‘Rajo Bai, P.W.5 has deposed that while she was returning from village-Medesara and going to her village Sonesara and on way collecting sticks, she was caught hold by the appellant present in the Court and one Balla and was taken to the field of Bisambhar Sahu. Her face was covered with Sari, as a result of which, she could not see the appellant and other co-accused. Thereafter, each of the, accused committed rape on her on three occasions on after the other. She deposed that the appellant first committed rape and when she used to cry for help, she was threatened that she would be killed and there were no other persons nearby. She has further deposed that from the place of incident, Sonesara Basti is about 20 miles away. The prosecutrix has stated that she was subjected to sexual intercourse against her wishes. ln her cross-examination she has also stated about the details of the , incident. @ 13. Meghnath, P.W.7 has deposed that after the prosecutrix returned from her daughter’s village, four days after the date of incident, she told him that she was subjected to rape by two boys but did not tell their name. The prosecutrix has also stated that she was suffering from pain and thereafter she was sent to Poiice Station along with Kotwar. Sukhbati, P.W.8, who is the daughter—invlaw, states that when the prosecutrix after returning from her village Medesara, kept lying at home then she had gone to see her as to what was the cause, she was found suffering from pain buttdi‘d not say anything, then, Kotwar was called. The Kotwar asked the prosecutrix then she disclosed that two persons raped her. She has s further stated that she herself witnessed that the private part of the prosecutrix was bleeding. Dineshwar Singh, P.W.1O has deposed that Rajo Bai told him that while’returning to her village Medesara, she was intercepted by two boys, who arrived at the spot on cycle and gagged her mouth. Thereafter, she was taken towards the field and