Criminal Appeal (SJ) No.104 of 1999 ~~~~~~ Against the judgment of conviction dated 09.03.1999 and order of sentence dated 12.03.1999 passed by Sri Ram Vyas Ram, learned 1st Additional Sessions Judge, Rohtas at Sasaram in Session Trial No. 101 of 1988. ~~~~~~ Suresh Pasi, Son of Suraj Pasi, resident of village – Ghusia Kala, Police Station – Bikramganj, District – Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Sudama Singh, Advocate. Mr. Rajani Kant Singh, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. The appellant has been convicted under Sections 376 and 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years for the offence under Section 376 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months for the offence under Section 448 of the Indian Penal Code. However, both the sentences have been ordered to run concurrently. 2. The prosecution case as alleged in the FIR drawn on the statement of the prosecutrix Najo Khatoon (P.W. 3) is that while her husband had gone out the co- villager Laddo Khan came to her house and asked about her husband. She disclosed that her husband has gone out for some work. After some time her husband returned back to house. Thereafter Chhotan Mahto co-villager came and called her husband and took him to his shop. Thereafter at about 7:00 P.M. the appellant Suresh Pasi armed with a small gun entered into his house, terrorized her by the said gun, tied her mouth from his towel and thereafter thrown her on the cot, set off the “Diya” which 2 was burning and raped her forcibly against her will. After some time Suresh Pasi got up and went away along with his towel. After he went away the prosecutrix raised alarm on which her husband, Shadik and Nurili Mian came. She disclosed about the occurrence to them. The occurrence alleged to have occurred on 20.12.1985 at about 7:00 P.M. but she did not go to lodge the FIR on that date due to darkness of the night. She reported the matter on the next day i.e. 21.12.1985 and the statement was recorded. The FIR was drawn at about 4:00 P.M. The distance between place of occurrence and police station is half kilometer as mentioned in the FIR. 3. After lodging the FIR, investigation proceeded and victim was examined by the doctor. After investigation the charge-sheet was submitted, cognizance was taken and case was committed to the court of Sessions and consequently charge was framed for the offence under Sections 376 and 448 of the Indian Penal Code. 4. During the trial the prosecutrix was examined as P. W. 3. She has stated her age as 29 years and in her evidence supported the prosecution case as described in the FIR. She has stated that Chhotan Mahto took her husband to his shop. Thereafter Suresh Pasi came while she was sitting at the Darbaja. He threatened to kill by small gun and closed her mouth tightly with the towel and thrown her on the cot. She resisted. The resistance continued for about one to two hours and during the period the appellant forcibly had done sexual intercourse with her against her will. He went away with his towel. Thereafter she raised Hulla on which her husband P. W. 2 Jokhan Mian, Sadique Mian (not examined) and Nurali Mian (not examined) also came. She disclosed them about the occurrence. The husband Jokhan Mian who was examined as P. W. 2 has corroborated that when he returned from shop of Chhotan Mahto his wife the victim started weeping. On inquiry she disclosed that Suresh Pasi has raped her. He then came out and made Hulla then Sadique and Nurali Mian came. There are several houses adjoining to his house. The marriage was 3 solemnized about 6-7 years back. He has also stated that the bangles were broken and “Blouse” was torned and semen had fallen on the cot. The victim P. W. 3 has stated in her cross-examination that neither her Blouse torn nor her bangle broken. P.W. 4 formally proved First Information Report and case diary. 5. P. W. 5 is the doctor who examined the victim and has stated in his evidence that he did not find any injury on the person of the prosecutrix. He found the age of the victim as 32 years old a healthy lady and no blood stain or pubic hair was found on her person and there was no sign of struggle and there was no matting of pubic hair. On microscopic examination no spermatozoa found in vaginal swap. The finding does not suggest of any sexual act and has proved injury report which has been marked as Ext. 3. In cross-examination the doctor has sated that the patient had healthy features and if the mouth of victim was tightly tied, the lips and cheek would have swollen and if a lady is being subjected to sexual intercourse for one and half hours continuously, the private part also would have swollen and red. 6. The defence of the accused person is false implication to grab the loan of Rs.500/- advanced by the appellant to the prosecution party. The learned Additional District Judge on consideration of the evidence of the parties accepted the prosecution case and disbelieved the evidence of doctor and defence set up by the accused and convicted the appellant for the offence under Section 376 and 448 of the Indian Penal Code. 7. Learned counsel for the appellant, however, contended that the occurrence took place in the evening at 7:00 P.M. There were several houses in the vicinity adjacent to the house of the prosecutrix where the occurrence took place and it is contended that on Hulla several people came but there is no independent corroboration as known except the husband has come to support and corroborate the prosecution story. The medical evidence shows that there was no rape. It belies the case of the prosecution about the rape. The age of the victim was 29 years of healthy 4 features belonging to a labour class and was well able to offer a good resistance and it is not possible for the appellant aged 19 years overpower her and to commit rape in her house itself and has placed reliance upon decisions reported in 2010 (1) Eastern Criminal Cases 20 (Sk. Md. Salim Vs. State of Bihar) as well as 2002 (1) Eastern Criminal Cases 178 (SC) (Dilip & Anr. Vs. State of M.P.). 8. Learned counsel for the State, however, contended that when the evidence of the victim is believable then a conviction can be sustained in sexual offence and the evidence of the prosecutrix can not be rejected even if there is no corroboration. 9. Hence, on the respective submissions of the parties the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubts. 10. However, the law is well settled in a case of sexual offence that the victim of rape cannot be treated as an accomplice requiring corroboration and there is no rule of law that the conviction can not sustain on her sole testimony without corroboration in material particular. It is well settled and uttered in decision reported in AIR 1952 SC 54 (Rameshwar Vs. State of Rajasthan) that the corroboration of the evidence of prosecutrix is not a sine qua non for conviction in a rape case i.e. corroboration is not essential for conviction. But the rule of prudence required the rule of admissibility of the corroboration should be present in the mind of the Judge as the case may be understood and appreciated by him. This has been reiterated in the decision reported in AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai V. State of Gujarat). Taking into consideration the Indian context and values it has been observed that refusal to act testimony of victim of sexual assault in the absence of corroboration is adding insult injury. However, it is relevant in this context to quote paragraph 11 of this judgment. 5 “11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex- offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the „probabilities- 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, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the „probabilities-factor‟ is found to be out of tune.” In decision reported in 2002 (1) Eastern-India Criminal Cases 178 SC (Dilip & Anr. Vs. State of M.P.) at paragraph 12 it is relevant to quote paragraph 12. “12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction 6 unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge, in State of H.P. v. Gian Chand, 2001(6) SCC 71 : 2001 (2) East Cr. C. 172 (SC), on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court further held: ”If 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 case involving sexual molestations……” 11. In decision reported in 2010 (1) East Cr. C. 20 (Sk. Md. Salim Vs. State of Bihar) the fact hinges on the sole testimony of the prosecutrix. The case of prosecution is that while she was sleeping in night at about 11:00 P.M. her Bhainsur the step brother of her husband came with a knife. He put her under fear and raped her. During the course of occurrence when the victim sought to raise a cry she was again threatened. There were several houses in the vicinity and the victim belongs to a labour class. In the fact and circumstance, the Hon‟ble Court took the view that it cannot be easily accepted that she will not resist and raise Hulla and is not a case where allegation of rape ought to be believed on mere oral statement of prosecutrix without looking for some 7 evidence to lend assurance to the court that it is not a case of false implication and hence, acquitted. 12. In decision reported in 2002 (1) East India Criminal Case 178 (SC) (Dilip & Anr. Vs. State of M.P.) the victim was aged about 16 years old alleged to have been overpowered by two accused persons while she was in open Varanda. She was lifted and taken in room of her own house. They committed sexual intercourse shutting her mouth one after another. During the occurrence blood oozing out from her private part on sexual intercourse she did not make any effort to save herself. The blood oozed out shocked her frock. The victim was examined by the doctor. No mark of violence found on her person hymen torn. The doctor opined no definite opinion be given about recent sexual intercourse found pregnancy of six weeks hymen torn and used to sexual intercourse. In the fact and circumstance taking into consideration the probability held that she was not a child who could have surrounded herself to force sexual intercourse without offering resistance and this probability factor operates against her. The prosecution case can not be corroborated by medical evidence rather it belies the case of prosecution. Held on the fact it is difficult to accept prosecution case in view of contradiction of medical evidence. 13. Now reverting back to the case at hand and applying the principle enunciated in the fact and circumstance of the case. The victim is a married woman aged 29 years. It is admitted that she belongs to a labour class. It has also been come in evidence that she had healthy built up. The appellant is 19 years old and he entered into house at 7:00 P.M., while victim was sitting at door. There are several houses in the vicinity adjoining her house. The appellant lifted her, took her in room, tied her mouth with the towel, throw her on cot and raped her but her explanation that she did not make any alarm out of fear as appellant was holding small gun is not at all acceptable. She was not a child 8 who would surrender herself for sexual assault. There must have been sufficient opportunity in between the victim came overpowered her to tie her mouth with a towel to raise alarm. Hence the circumstance operates against the prosecution. 14. The other circumstance that the prosecutrix was subjected to sexual inter course which continued it for about more than an hour, the victim claimed to have resisted through out the occurrence. She claimed that the semen fallen on her as well as on cot. The doctor examined the victim on the very next day. However, he did not find any injury. He neither found any sign of resistance nor found any spermatozoa in vaginal swab. Hence, medical evidence does not support the prosecution case which is against another probability factor against the prosecution. 15. The other aspect of the fact and circumstance of the case is that, it is asserted by the prosecution that the towel was tightly tied over her mouth. It was tied throughout during the occurrence continued for 1-2 hours but the doctor did not find sign or swelling on her lips or cheek. The doctor P. W. 5 in cross-examination at para 5 deposed that if the mouth of the victim is tightly tied the lips and cheek will be swallow. Hence these facts also go against the prosecution. The husband came after occurrence and the victim disclosed about the occurrence. The further case is that she made hulla and several people came but non else than husband came to support prosecution case. 16. However, in view of the circumstance stated above. It is apparent that it is not a case where the evidence of the prosecutrix to be relied upon to record conviction without looking for some evidence to lend assurance to the court that it is not a false implication and the court found it difficult to accept the version of the prosecutrix without corroboration. The prosecution case cannot be accepted without being satisfied with the evidence of the prosecutrix in the surrounding circumstance as the basic established principle that prosecution is beyond to prove the case beyond 9 reasonable doubt and merely because the defence set up is not acceptable the prosecution case cannot be deemed to have stand proved. However, the surrounding circumstance are well against the evidence of the prosecutrix and I am not satisfied of the correctness of the story as told by the prosecutrix and I find and hold that it is not a case on which the implicit reliance can be placed on the sole testimony of the prosecutrix hence I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt as the sole evidence of the prosecutrix is not as such to be relied upon without necessary corroboration and hence the order of conviction and sentence is hereby set aside. The accused-appellant is acquitted of the charges framed against him and is discharged from the liability of the bail bond, if any and hence the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 1st December, 2011. N.A.F.R./Kundan.