Criminal Appeal (SJ) No.131 of 1998 **** Against the judgment, dated 30.07.1997, passed by Sri Subhash Kumar Singh, Additional Sessions Judge, X, Sasaram, in S. Tr. No. 94 of 1997 **** 1. Khurshid Main, son of Md. Chhedi Mian 2. Sagir Ansari, sonof Rahamuddin Mian Both are residents of villge Akasi, P.S. Agrer, district Rohtas .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Syed Alamdar Hussain, Syed Asghar Najmi & Ms Minu Kumari, Advs. For the informant .. M/S Vikramdeo Singh and Pawan Kumar, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellant no. 1 has been convicted under Section 376 of the Penal Code and appellant no. 2 has been convicted under Section 376/34 of the Penal Code and both have been sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged in the complaint, is that 2 about 6-7 months ago Saghir Ansari in association with Khurshid Mian committed rape against the complainant regarding which she reported the matter to the villagers and the meeting was convened and the Panches were chosen and decided that accused, Saghir Ansari, has committed rape against the will of the complainant so he will have to marry and Khurshid Mian since aided so he will have to pay a fine of Rs.20,000/-. On the said complaint, the complainant was examined on oath and after examination of the complainant and two witnesses, Abir Mian and Alimuddin, the process were issued against the accused persons after taking cognizance. On appearance of accused case was committed to the Court of sessions. After commitment, the charges were framed under Section 376 of the Penal Code against Saghir Ansari and under Section 376/34 against both Saghir Ansari and Khrshid Mian. 4. During trial eight witnesses were examined on behalf of the prosecution. 5. However, P.W. 7 is the victim and has stated that she was at her house and her mother was not in the house and has gone out, Saghir Ansari and Khurshid Mian entered into the house and Khurshid Mian showed dagger and then it is alleged that Saghir Ansari committed rape at the point of dagger. She has, further, stated that her mother came on the next day then she disclosed about the occurrence to her mother when her mother reported the matter to others, but, none took any care and after some days and then Panchayati convened and it was decided that Saghir Ansari will marry and Khurshid Mian will pay Rs.20,000/- and when the command of the Panchayati was not respected then she filed the complaint case. However, this witness in her statement on the complaint 3 has stated that Saghir Ansari and Khurshid Mian came to her house and did some wrong to her and committed rape and threatened to kill, if disclosed to any one. She has, further, stated that after one month of the said occurrence she learnt about the pregnancy then she disclosed this fact to her mother and then her mother disclosed the fact to the villagers. However, the mother, P.W. 5, has stated that she had been begging in the morning and she returned in the evening and then the victim disclosed about the occurrence. However, there is some contradiction in the evidence of the complainant in her examination-in-chief as well as in her statement on the complaint at the time of taking cognizance and evidence of her mother. The complainant in her statement stated that the occurrence took place in the night and her mother came next morning and she disclosed to her, however, in the complaint petition she stated that after one month of the occurrence she learnt about the pregnancy and then she disclosed to her mother and the mother says that when she came in the evening then she disclosed. However, no date has been mentioned about the occurrence nor even it has been mentioned that in between the two days nor there is mention about the two dates in between the occurrence, but, the evidence is blatant in the complaint petition. 6. More over, the complaint petition filed has not been proved. The accused persons have been named in the complaint petition and the offence shown to be under Section 376 of the Penal Code, which is triable by a Court of sessions. However, seven witnesses have been named, but, the evidence of all the witnesses have not been recorded and merely on the statement of the complainant and two witnesses the cognizance was taken and the appellants have been convicted. However, 4 it is apparent violation of proviso (2) of Section 202 of the Criminal Procedure Code. Hence, the only evidence regarding the rape is the evidence of the victim, who filed the complaint after 5-6 months of the occurrence. The other witnesses Abit, P.W. 1, and Alimuddin, P.W. 4, have only been examined in the enquiry under Section 202 of the Criminal Procedure Code before the Magistrate. The other witnesses have not been examined and, hence, the appellants got prejudiced as they did not get the opportunity to take contradiction or development or embellishment. However, out of the eight witnesses, P.W. 7 is the complainant, who has stated the prosecution case. P.W. 5, is the mother of the complainant, who has only come to say that after the occurrence the victim disclosed when she came in the evening. However, this evidence of P.W. 5 stands contradicted with the evidence of the victim when she has stated in her statement before the Magistrate on complaint that she disclosed after one month of the occurrence to her mother. However, the rest of the witnesses are only with regard to the Panchayati and it has come in the evidence of the witnesses that the victim is pregnant and then the Panchayati convened. However, the other witnesses, P.Ws. 2 and 7 are on the Panchayati. However, the witnesses, P.Ws. 1, 2, 3, and 4 supported the case of the prosecution that there was Panchayati and in Panchayati it was decided that Saghir Ansari will marry and Khurshid Mian will pay Rs.20,000/-, but, they did not abide the decision of the Panchayati and though it has been stated that the said decision of Panchayati was put in black and white, but, the said paper of Panchayati was not proved though the witnesses stated that about the Panchayati and the decision of the Panchayati. 5 7. The trial Court on consideration of the evidence of the victim who had supported the prosecution case about rape and, further, take into consideration the evidence of the mother of the victim, P.W. 5 that he reported the matter to the elder who suggested that the matter concerns with the village and they tried to suppress. However, when, after some times the victim was found to be pregnant and then the village Panchayat convened and the Panchayat took a decision that Saghir shall marry with Jumrati, the victim, and Khurshid will pay Rs.20,000/- as compensation and the party accepted the decision of the village Panchayati and date was arranged for payment of compensation and marriage, but, on the date the accused refused and, hence, the case. Taking into consideration the evidence of P.W. 5 the victim, her mother and, further, the evidence of P.Ws. 1, 2, 3, 4 and 6, who have supported the prosecution case bout the convening of the Panchayati on the report of Jumrati and though found some contradiction in between the statement of the victim before Magistrate and in Court and contradiction between the evidence of P.Ws. 5 and 7 and, further take into consideration that the date of occurrence has not been specifically mentioned, but, taking into consideration that the victim was rustic and physically and mentally handicapped held that she is not expected to narrate these things in fine detail and, further, held that the order of conviction and sentence can maintain on the sole testimony of the prosecutrix when her evidence inspire confidence and no corroboration is required and held that the birth of a female child itself is sufficient corroboration of rape because it is the only the mother who can say who is the father of the child, hence, the trial Court, convicted and sentenced the appellants, as stated above. 6 8. The learned counsel for the appellants, however, contends that the complaint petition filed has not been proved. The statement of only two witnesses recorded, out of several witnesses mentioned in the complaint petition and, hence, there is violation of proviso (2) of Section 202 of the Criminal Procedure Code and the only evidence of rape against the evidence of the victim and there is no corroboration and there is delay in filing the complaint and there is contradiction between the evidence of P.Ws. 5 and 7 about the reporting of the victim to mother and though there was sufficient opportunity for the prosecution to lodge the case, but, they did not lodge the case and, hence, the delay of lodging the first information report is fatal to the prosecution case and, hence, the prosecution has not been able to prove the charge. 9. The learned counsel for the State, however, submits that the victim has supported the prosecution case about rape and the victim was mentally and physically handicapped and her evidence can not be rejected outright and delay in lodging the first information report has properly been explained that the matter was reported to village elders, but, at first instance they dispelled with a threat as matter concern to the village and when the pregnancy found then village Panchayat, again, took up the matter and took decision that appellant no. 2 will marry the victim and appellant no. 1 will pay Rs.20,000/- and the witnesses supported the prosecution case about Panchayati and, hence, the delay has reasonably been explained and the contradictions pointed out were minor, which does not go to the root of the prosecution case to reject the prosecution story. 10. Taking into consideration the respective submissions, the 7 question for consideration that whether the evidence of the witnesses is acceptable with regard to the rape and the delay has been explained. 11. However, it has come in evidence that the victim is mentally and physically handicapped and she has supported the prosecution case about the rape and the indulgence of the two appellants there is nothing in her evidence to disbelieve except that there is delay in reporting the matter. The victim supported the present case in her evidence that after rape she reported the matter to her mother, P.W. 5, and, thereafter, the mother reported the matter to the villager elders. It has also come in evidence that victim and her mother is extremely poor and, further, the case that on her report she was threatened and when she reported the villager elders about the pregnancy and then the Panchayati convened and the witnesses, P.Ws. 1, 2, 3, 4 and 5 have supported the prosecution case about the convening of the Panchayat calling of the witnesses and the accused and the Panchayati decided that Saghir will marry Jumarati and Khurshid will pay compensation of Rs.20,000/-. P.W. 1 has supported the prosecution case that the mother of Jumarati informed him about rape of Jumarati by Saghir and Khurshid and Jumarati was chided and after some time, again, they raised the question that Jumrati had become pregnant and then Panchayati called, mother of Khurshid and father of Saghir were present and they accepted the decision and the evidence of P.Ws. 2, 3 and 4 and, hence, the witnesses supported the prosecution case and Panchayat and delay in lodging the fardbeyan has been explained by the prosecution case, however, the learned counsel for the appellant contended that the complaint petition ha not been proved and all the witnesses of the complaint were not examined 8 causing violation of proviso (2) of subsection (2) of Section 202 of the Criminal Procedure Code, however, it is well settled that the statement of the witnesses are recorded only for the satisfaction of the Magistrate to find that there is prima facie case. However, the satisfaction of the Magistrate can not be challenged on the ground that all the witnesses have not been examined and the prosecution case can not be rejected on these ground alone unless the appellants could show that they were prejudiced by non-examination of other witnesses. The next question raised that the date of occurrence has not been specifically mentioned, however, having regard to the circumstances that the victim is a rustic lady and mentally and physically handicapped, hence, non-mentioning of the date does not go to the root of the prosecution case to reject the prosecution story about the rape, when the evidence of the victim regarding the rape inspire confidence and it has come in the evidence that the victim got pregnant and blessed with child. However, taking into consideration the fact that the victim is poor and handicapped the lady. There is no reason why she will falsely implicate the appellants. There is nothing in her evidence to disbelieve or to doubt the testimony of the witnesses. In such circumstance no corroboration is required, when the evidence of the witnesses found to be trustworthy and worthy of confidence. The minor discrepancies or contradictions in the evidence regarding reporting the matter to mother or delay in raising the issued under the facts and circumstances of the case when the victim and her mother are extremely poor and reported the matter to the village elders who proceeded for Panchayat and, hence, the delay has properly been explained. However, it is well settled and observed by Apex Court that girls and women in a 9 traditional society extremely reluctant even to admit rape or incidents which reflect their chastity as there is danger of being looked down and in such circumstances in absence of medical evidence or corroboration, the prosecution case can not be rejected when it has come in evidence that the victim is extremely poor and in the present facts and circumstances there is no need to ask for a corroboration and, hence, taking into consideration the entire evidence and submissions, I find and hold that the prosecution has been able to establish the charges. 12. Hence, I do not find any reason to interfere with the order of conviction recorded by the lower Court. However, having regard to the sentence the appellants have remained in jail from 1996 to 16.04.1998 when they were granted bail by the High Court in appeal after conviction and 15 years have already been elapsed from the date of occurrence and the appellants have suffered during the investigation and trial and even after during the pendency of the appeal and, hence, taking into consideration, the entire facts and circumstances the end of justice shall meet by sentencing the appellants for the period already under gone by them. 13. Hence, the appeal is dismissed with the modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 26th day of August 2011, N.A.F.R., S.A.