Criminal Appeal (SJ) No. 334 of 1999 WITH Criminal Appeal (SJ) No. 08 of 2000 ~~~~~~ Against the judgment of conviction and order of sentence dated 03.12.1999 respectively passed by Shri Asharfi Sah, learned Additional Sessions Judge – 7th, Gaya in S. Tr. No. 20 / 99 / 358 / 97. ~~~~~~ Dr. Narayan Yadav @ Ram Narayan Prasad, Son of Basudeo Yadav, resident of village – Manni Chak, Police Station – Deep Nagar, District – Nalanda. .... .... Appellant. (In Cr. Appeal (SJ) No. 334 of 1999). ~~~~~~ Dayanand Mahto, Son of Ramji Mahto, resident of village – Bathani, P. S. – Atri, District – Gaya. …. …. Appellant. (In Cr. Appeal (SJ) No. 08 of 2000. Versus The State Of Bihar .... .... Respondent. ~~~~~~ For the Appellants : Sharvshri Kanhaiya Prasad Singh, Sr. Advocate. Ram Suresh Roy, Advocate. Binod Kumar Singh, Advocate. Arvind Kumar Singh, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. These two appeals are being heard together and being disposed of by the common order and judgment as both arise out of the judgment and order dated 03.12.1999 passed by Shri Asharfi Sah, learned Additional Sessions Judge – 7th, Gaya in S. Tr. No. 20 / 99 / 358 / 97 arising out of Atari P. S. Case No. 07 of 1996. 2. The appellants had been charged for the offence under Sections 363, 366(A) and 376/34 of the Indian Penal Code for the alleged kidnapping and rape of the victim Pinki Kumari and have been convicted and sentenced to undergo rigorous imprisonment for seven years for the offence under Section 363 of the Indian Penal 2 Code, ten years for the offence under Section 366(A) of the Indian Penal Code and ten years for the offence under Section 376/34 of the Indian Penal Code. However, it has been ordered that all the sentences shall run concurrently. 3. The fact of the case is that the victim Pinki Kumari (P.W. 5) along with her sister Rubi Kumari (P. W. 3) and maternal grand mother (Nani) P. W. 6 went to attend the call of nature at Bathani Karbala near Bargad tree. While they sat for attending the call of nature, five accused persons, namely, Dayanand Mahto, Dr. Narayan Yadav, co-accused Nawal Thakur, Naresh Weldar, Umesh Thathera reached there. The victim, her Nani and others got up. Out of them Dayanand Mahto caught hold of the hand of Pinki Kumari twisted her hand and when Pinki Kumari made a cry then her mouth was gagged with a towel. When the maternal grand mother P. W. 6 Raj Kumari Devi protested then Nawal Thakur pointed his gun to Raj Kumari Devi. When Rubi Kumari came to rescue then she was slapped by Nawal Thakur who hold them at the point of gun. The other accused persons took Pinki Kumari towards north and when they became out of sight then Nawal Thakur fled away toward north leaving Rubi Kumari and Raj Kishori Devi. The informant (P. W. 6) Raj Kumari Devi along with Rubi Kumari (P.W. 3) proceeded to the house of her son-in-law Mithilesh Kumar Sinha (P. W. 1). The son-in-law was not at his house, as he had gone to market. When P. W. 1 came from the market he found Raj Kumari Devi and Rubi Kumari weeping. On inquiry they disclosed the fact about kidnapping. Mithilesh Kumar Sinha made out a search about her daughter but in vain and at last they went to Bathani Police Station. The fardbeyan (Ext. 3) of Raj Kumari Devi P. W. 6 was recorded at 10:15 P.M. on 03.02.1996 by A.S.I., Jaiswant Prasad Singh P. W. 8 on which Raj Kumari Devi signed (Ext. 2). The said fardbeyan was forwarded to Officer-In-Charge, Atari for registration of the case (Ext. 5) and on the basis of the said fardbeyan the FIR was lodged (Ext. 5). 3 The investigation proceeded to make out a search and victim was apprehended along with two accused persons to the north of the place of occurrence while waiting for a Bus. The victim was sent to Lady Elgin Janana Hospital, Gaya for examination. The victim along with the accused persons were sent to hospital for their examination and injury report taken (Ext. 6 and 6/1). The statement of the victim was recorded. 4. The police after investigation, submitted charge-sheet, cognizance was taken and the case was committed to the court of Sessions. After commitment the charge was framed. 5. During trial eight witnesses were examined on behalf of the prosecution to support the prosecution case. P. Ws. 3, 5 and 6 supported the prosecution case as alleged in the fardbeyan. The victim (P.W. 5) further deposed that five persons kidnapped her and took to the north of the first place of occurrence and then brought in a field of Khesari crop. Nawal Thakur came running. Dayanand Mahto caught hold of the waist of the victim and took her to sugarcane field and thrown her on the ground and Dayanand Mahto first raped her, followed with the other four miscreants had also raped her causing injury and blood oozing out from the private part. During the occurrence she became unconscious and the rape continued for whole night thereafter she was taken from the sugarcane field to a pitch road and while they were waiting for a bus, a bus came stopped there but from the bus the police personnel and her father came out and arrested the accused Dayanand Mahto and Dr. Narayan Yadav and thereafter she was examined by the police who recorded her statement. The maid came and changed her cloths, for which the production cum seizure list of her cloths (Ext. 1) were prepared which is under the pen and signature of Mishri Lal, Officer-In-Charge which has been marked as Ext. 1, the report from Lady Elgin Janana Hospital, Gaya has been procured. The doctor 4 P. W. 7 found the age of the victim 14 to 15 years. The doctor also found that the pubic hair present, not matted, no marks of violence present on her private parts, no foreign hair present on her private parts, vaginal orifice congested and admits one finger with pain. Hymen lacerated and torned, bleed on examination, high vaginal swab taken and sent for examination, spermatozoa not seen either dead or alive and the doctor’s opinion based on above physical and X-ray findings, that the rape had been committed and the age of the girls is between 14 to 15 years. 6. P. W. 8 is the Investigating Officer. During investigation he found two place of occurrence. The first is the field of Ramjee Mahto having Dhaniya crop and to the adjoining west of the place of occurrence there is Karwala and to the east there is potato field of Arjun Ram and to the north and south there is Kacchi road leading towards Bathani bus stand and the place of occurrence is a lonely place. The second place of occurrence is the sugarcane field of Sattar Mian which is at a distance of about half kilometer from Bathani and he found Ketari field trampled and fallen on the ground which is middle place of the field and to the east of the place of occurrence. 7. P. W. 1 Mithilesh Kumar Sinha is the father of the victim, P. W. 2 Sanjay Kumar is Mama of the victim, P. W. 4 Smt. Mina Kumari is the mother of the victim who is the hearsay witness as she was not present at the time of occurrence, P. W. 5 Pinki Kumari is the victim who is a witness on the point of kidnapping and rape, P. W. 3 Rubi Kumari is the sister of the victim girl who is a witness on the point of kidnapping, P. W. 6 Raj Kumari Devi is the informant and also an eye witness on the point of kidnapping. 8. The defence of the accused persons is that no occurrence as alleged occurred and has falsely been implicated in this case. The appellant Dayanand Mahto was arrested from his shop and the appellant Dr. Narayan Yadav @ Ram 5 Narayan Prasad was arrested from his house. Since the area is dominated by Yadavs, the public representative for the Assembly is also a Yadav so the appellants have falsely been implicated. The father of the victim in collusion with the Nani (grandmother), politicians and police have falsely been implicated the appellants for the reasons that the father of the victim saw the victim writing love letter and the love has gone to the extent that they were ready to marry with each other so the mother of the victim a nurse with due deliberation with the help of the local M.L.A lodged the false case so that the marriage of Dayanand Mahto and Pinki Kumari be not solemnized. 9. The defence has adduced both oral and documentary evidence and has examined four witnesses as D. W. 1 to 4. D. W. 1 is the hand writing and finger print expert who has come to prove the alleged love letters marked as Ext. X series for identification and has proved his report marked as Ext. A on the love letters. Ext. A/1 is juxtapose chart. Ext. B and C series signatures on the photographs. D. Ws. 2 and 4 have come to prove the defence of the accused that the accused appellants were arrested from their shop and dispensary respectively. The further case of defence is that the accused persons have falsely been implicated by obtaining false report from the hospital about rape as the mother of the victim is a nurse and had got training of nurse in Lady Elgin Janana Hospital hence prepared the favourable report of rape. The further defence is that there is delay in sending the First Information Report to the Magistrate caused prejudice and indicates that the delay was due to deliberation to lodge a false case as the First Information Report is dated 03.02.1996 whereas it has been received by the Magistrate on 06.02.1996. 10. The trial court taking into consideration the evidence of P. Ws. 3, 5 and 6 held that there is nothing in their evidence to disbelieve them to hold that they went 6 to Karbala to attend the call of nature where P. W. 5 was kidnapped. She was kidnapped by the five persons who gagged her mouth and abducted her by force from Karbala. The first place of occurrence at Karbala established. On the evidence of P. W. 5 held that the second place of occurrence is to the north of first place of occurrence in Khasari filed and thereafter to sugarcane field where appellants committed rape on the person of P. W. 5. P. W. 5 the victim is the solitary witness on rape. P. W. 7 the doctor who examined the victim and has found her age 14-15 years old. Hymen lacerated and torned blood oozing out through vagina on examination and considering the facts and circumstances of the case convicted the appellants holding that the prosecution has been able to prove the charge beyond reasonable doubt. 11. Learned counsel for the appellants pointed out to the various contradictions and discrepancies about the manner of kidnapping by gagging her mouth by towel, taking her to Khesari field and then to sugarcane field and subsequently raped at a distance of about one kilometer and further raped by five persons and contradictions recorded paras 51, 52, 53, 54 and 55 of the evidence of the I.O. Further the doctor did not find the sign of violence. The clothes of the victim was neither exhibited and produced nor sent for chemical examination. The midwife was not examined and the doctor did not find any matting on private part or swelling and their evidence about the exchange of letters and false implication at the instruction of the M.L.A. has pointed out the evidence at paras 43 to 49 regarding conduct of the mother having not visiting the hospital. 12. Learned counsel for the appellants, however, contended that it has come in the finding recorded by the learned lower court that there was latrine in the house of the father of the victim and only the roof was not constructed and hence the prosecution story is improbable when the latrine was in the house of the victim 7 then what was the occasion for the prosecution party to go to field to attend the call of nature. 13. Learned counsel for the State contended that the evidence pointed out that there is nothing in the evidence to disbelieve the testimony of the witnesses and the prosecution story is neither suffered from any contradiction nor suffered from any improbability to discard and disbelieve. The prosecution has proved its case with sufficient corroboration to lend assurance to the prosecution case on material particular. 14. However, it is well settled that the evidence of prosecutrix is not an evidence of accomplice to require corroboration and if the evidence of witness inspire confidence then the conviction can be recorded on the sole testimony of the victim. However, it is true that no corroboration is required for the evidence of prosecution. However, the only requirement is the admissibility of corroboration in the mind of the Court. The evidence of P. Ws. 3, 6 and 7 lend sufficient corroboration to support the prosecution case as stated in the evidence of P. W. 4. 15. P. Ws. 3, 5 and 6 are witnesses on kidnapping who have supported the case of prosecution about kidnapping at Karbala, a place where they went to meet the call of nature. The victim P. W. 6 has supported the prosecution case that after kidnapping she was taken towards north in Khasari field and thereafter to sugarcane field where she was raped by the appellants. 16. The criticism is that P. W. 6 has stated that the said Karbala is about 1/2 K.M. from her house. The argument is that no person will go to attend call of nature to 1/2 K.M. However, P. W. 1 has stated that Karbala is at a distance of 40 yards and P. W. 3 has stated that to the west of the house there is field and then there is a road and to the west of that road there is Karbala. Hence the witnesses have given the description of a place of occurrence and distance. The distance stated by the 8 witness is on the basis of their estimation of approximate distance. However, this estimation may vary from man to man and the prosecution story cannot be disbelieved on this count about variation in estimation and their assessment about the distance. It is matter of common experience that the witness described the distance in term of their estimation which may vary from person to person. 17. The learned counsel for the appellants has drawn the attention on the evidence of I.O. P. W. 8 who in his evidence in paras 51 to 55 has stated that the witnesses have not stated before him the fact mentioned in their examination in chief and hence their evidence suffer from contradiction. However, contradiction is a mode of discrediting a witness. For impeaching the credit of a witness it has to be proved that the former statement of the witness before police is inconsistent with part of the evidence adduced in the case. Section 145 of the Evidence Act and proviso to Section 162 Cr. P. C. provides the mode of taking contradiction. From plain reading of Section 145 of the Evidence Act with proviso to Section 162 Cr. P. C., it is clear that the statement made by the witnesses in the course of investigation under Section 161 Cr. P. C. is required to be duly proved to make use of it to contradict the evidence adduced by the witness and the witness is required to be confronted with the concerned portion of the statement made under Section 161 Cr. P. C. It has been held by the Apex Court that the compliance of these provisions must be in substance and not merely in form. Here under the facts and circumstances the statement made under Section 161 Cr. P. C. which is said to be used for contradiction has neither been brought on record nor proved nor the attention of the witness has been drawn to them and hence there is no compliance of Section 145 of the Evidence Act to record contradiction. However, when the witness in cross-examination is asked whether he stated before the police as stated in his evidence in court the witness denies is not the substantive compliance under 9 Section 145 of the Evidence Act and proviso to Section 162 Cr. P. C. to record contradiction. The correct procedure to be followed would be in confronting with the statement recorded under Section 161 Cr. P. C. and if the witness admits this it can be relied and if the witness denies then the particular portion of the statement should be recorded and marked for identification when the I.O. comes in witness box to state whether the particular statement made to him. However, neither the attention of the witness drawn to their previous statement nor the I.O. stated what had been stated by the witness before him in his statement under Section 161 Cr.P.C. However, to record a contradiction the test is whether the statement or evidence in court and the statement made by the witness during investigation under Section 161 Cr. P. C. can co-exist. The two statements must be brought on record and the statement under Section 161 Cr. P. C. made by witness must be confronted to give an opportunity to explain an inconsistency. However, till the statement made before the police is brought in evidence it is not possible to access whether the two statements can co-exist or not to hold that the two statements are in contradiction to each other. Further to assess whether there is any omission or the said omissions whether amounts to contradiction, again the two statements are required to be brought in evidence to assess whether the omission amounts to contradiction. However, having regard to the fact that procedures for recording contradiction has not been followed, the appellants cannot take advantage of it. 18. However, P. Ws. 3, 5 and 6 supports the prosecution case about kidnapping. The evidence of P. W. 6 about rape is corroborated by the evidence of the doctor P. W. 7 who found the hyman torn and lacerated. So far the evidence of the doctor that he did not find the injury of resistance and no spermatozoa found is no ground to reject the prosecution case. The fact that the victim is 15-16 years old and kidnapped by five persons. In such circumstance one cannot expect that the victim 10 will dare to resist and one can well imagined that the fear psychosis may be present in the victim and moreover it also depends from man to man and no inference an be lead on this basis. The seizure list of panty and clothes were prepared but not sending for chemical examination by I.O. is no ground to reject the prosecution case for latches on part of the I.O. 19. However, in case of rape it is well settled that the evidence of the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted unless corroborated in material particular and it is well settled that conviction for the offence of rape can be based on the sole testimony of the prosecutrix corroborated by the medical evidence and other circumstance if the same is found to be natural, trustworthy and worthy of being relied upon. 20. It is a matter of common experience that in traditional society a girl or a woman would be reluctant even to admit rape or any incident having taken place which is likely to reflect her chastity as she is conscious of the danger of being ostracized by the society and she becomes brave to face the risk of losing the love and affection of her near relatives in case of being unmarried. Further there is fear of being taunted by others and she would feel extremely embarrassed in relating to incident to other and the natural incline would be to avoid giving mileage to the incident as the family name and honour is brought into controversy and if the victim herself being considered she would be traumatic and reluctant to face interrogation by the investigating agency and these are the factors the victim and their relatives are not keen to bring the culprit to book and hence these observations has well been found in the decision reported in AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat). In view of these factors the victim and their relatives are not normally keen to bring the culprit to book. And when in the 11 face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. If the evidence of the victim does not suffer from any basic infirmity and the probability factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence. Here, under the facts and circumstances of the case, the victim has supported the prosecution case and medical evidence and evidence of P. Ws. 3 and 5 lend corroboration kidnapping and rape. Hence prosecution to the allegation of witness cannot be disbelieved. 21. However, the defence is that the victim was tutored is highly improbable. It is unbelievable that the parents would tutor their minor daughter to invent such a story in order to wreak vengeance and they would not do so for the simple reason that it will bring down their own social status in the society apart from running future prospects of their own child. They would also be expected to be conscious of the traumatic effect on the psychology of the child and the disastrous consequence likely to ensue when she grows up she herself would refer the injury and the harassment rather than to indicate to hindrance experts and hence the defence set up by the appellant is not acceptable and this view is supported from the decision reported in AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat). Here the two material witnesses are P. W. 5 the victim and P. W. 3 Rubi Kumari aged about 9 years, the sister of the victim and it is unavoidable that their parents would tutor them to narrate the false story of rape to spoil their own social status and their reputation and the must have been aware of the traumatic effect on the psychology of their children i.e. the daughters and hence the defence set up by the appellants is not acceptable. 22. It has been contended that there was latrine in the house of the victim and there was no occasion to go to field to meet the call of nature. However, the 12 submissions is based against the evidence on record P. W. 6 in para 11 of her cross- examination has specifically stated that in the house there is no arrangement of any latrine as only five rooms has been constructed and has stated that 10 yards west there is road and adjoining west of road there is Karbala. 23. The criticism that there is delay in sending the First Information Report to the Magistrate, this is obligatory on the part of Officer-In-Charge of police station to send the report of information received to the Magistrate forthwith but that does not mean and imply to devour and discard the